European Constitutionalism and Constituent Power
European Law Review, Vol. 44, No. 1, pp. 49-65, 2019
Posted: 27 Jan 2021
Date Written: November 18, 2019
Recent scholarship tends to concur with the opinion of the European Court of Justice (ECJ) that the treaties establishing the European Union (EU) serve as a constitution in a functional sense. A remaining source of concern for advocates of the constitutional status of the EU, however, is the apparent inapplicability of the concept of constituent power to a supranational legal framework grounded in the international law of treaties. This explains the attempt by theorists such as Jürgen Habermas to develop a dual or mixed account of constituent power that is congruent with the origins of the EU. In the current paper I argue that this response is misguided. Attempts to construct a mixed constituent power fit for the purpose of grounding the legitimacy of the EU constitutional order are not only descriptively implausible, as its adherents sometimes acknowledge, they also fail at the level of reconstructive normative justification where they are intended to perform their explanatory function. The source of this justificatory inadequacy is the notion of constituent power itself, which lacks the normative content to serve as the foundation for an account of constitutional legitimacy. Section 1 briefly provides context for the debate on Lisbon’s constitutional status. Section 2 turns to constituent power and explores the rationale for its application to Europe. Finally, in section 3, I demonstrate that constituent power is of little assistance for those seeking a normative justification for the Lisbon Treaty’s constitutional status.
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