Non-Democratic Constitutionalism in the European Union
25 Pages Posted: 9 Jan 2015
Date Written: 2014
Constitutionalism has long been a byword for legitimate government. Recently, however, legal scholars and political theorists have begun attending to the ways in which constitutional rule can fail to realize (or actively hinder) the lofty ideals with which it is traditionally associated. This paper is a comment on the important but, as I argue, contingent relationship between constitutionalism and one of these lofty ideals, namely democracy. A legal system can be configured on a constitutional footing, and still thwart democratic rule to a far more systematic extent than the occasional “counter‐majoritarian difficulty.” I analyze the European Union as an example of non-democratic constitutionalism, and suggest that other international regimes share similar features. In doing so, I also address the long-standing debate concerning whether constitutionalism can be adapted to international institutions, and if so, what form it might take.
Keywords: Constitutionalism, European Union, international institutions
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