The Levelling Up of Constituent Power in the European Union

10 Pages Posted: 8 Feb 2017

Date Written: March 2017


In this article, I elaborate a conceptual innovation that underlies, if only in nascent form, Jürgen Habermas's notion of pouvoir constituant mixte and could significantly advance research on the democratic legitimacy of EU constitutional politics: the levelling up of constituent power. According to this idea, state‐level pouvoirs constituants may issue an authorization for constitutional decision‐making at the supra‐state level and thereby bring about a new constituent power whose composition can take a variety of forms. This conceptual framework paves the way for a systematic analysis of the EU's pouvoir constituant and its relation to the demoi of the member states. At the same time, it renders it an open normative question of who should be in charge of EU constitutional politics. This article is part of the March 2017 Symposium titled ‘The EU's Pouvoir Constituant Mixte’, which also includes The EU's Pouvoir Constituant Mixte ‐ Exploring the Systematic Potential of an Innovative Category by Markus Patberg (DOI: ), Citizen and State Equality in a Supranational Political Community: Degressive Proportionality and the Pouvoir Constituant Mixte by Jürgen Habermas (DOI: ), The ‘Mixed’ Constituent Legitimacy of the European Federation by Peter Niesen (DOI: ), The European Parliament as a Forum of National Interest? A Transnationalist Critique of Jürgen Habermas' Reconstruction of Degressive Proportionality by Jelena von Achenbach (DOI: ) and Divided Sovereignty, Nation and Legal Community by Klaus Günther (DOI: )

Keywords: European Union, higher‐level constituent power, pouvoir constituant mixte, constitutional politics, treaty revision, democratic legitimacy, Habermas

Suggested Citation

Patberg, Markus, The Levelling Up of Constituent Power in the European Union (March 2017). JCMS: Journal of Common Market Studies, Vol. 55, Issue 2, pp. 203-212, 2017, Available at SSRN: or

Markus Patberg (Contact Author)

University of Hamburg ( email )

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