The Constitution's Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union

31 Pages Posted: 2 Jul 2005

See all articles by John Erik Fossum

John Erik Fossum

ARENA Centre for European Studies, University of Oslo

Agustín José Menéndez

Arena, Universitetet i Oslo; Facultad de Derecho, Universidad de Leon

Abstract

Our aim in this article is to consider whether the Union's deliberation over and decision-making on constitutional norms can contribute to render it more democratic. From a normative perspective, the way a constitution is forged has deep implications for its democratic legitimacy. In light of recent events, we consider how procedural changes in constitution-making might contribute to rectify the Union's democratic deficit. To do so we first develop a thin model of constitution-making based on the central tenets of deliberative democracy. Through this we seek to outline how a legitimate constitution-making process will look from a deliberative democratic perspective. Second, we distill out some of the core characteristics of the Intergovernmental Conference (hereafter, IGC) model and assess this against the normative model, to establish the democratic quality of the IGC model. Third, we assess the current Laeken process by means of spelling out the central tenets of this mode of constitution-making, and we assess it in relation to the normative standards of the deliberative model. In the fourth and final step, we consider what contribution constitution-making might make to the handling of the EU's legitimacy deficit(s). We find that the Laeken process, in contrast to previous IGCs, was explicitly framed as a matter of constitution-making. It carried further the democratization of constitution-making, through its heightened degree of inclusivity and transparency. However, when considered in relation to the deliberative-democratic model, it is clear that the Laeken Constitutional Treaty cannot be accorded the full dignity of a democratic constitution. The Constitutional Treaty can however lay the foundations for 'We the European people to speak'.

Suggested Citation

Fossum, John Erik and Menéndez, Agustín José, The Constitution's Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union. European Law Journal, Vol. 11, No. 4, pp. 380-440, July 2005. Available at SSRN: https://ssrn.com/abstract=741806

John Erik Fossum (Contact Author)

ARENA Centre for European Studies, University of Oslo ( email )

PO Box 1143 Blindern
N-0317 Oslo, 0318
Norway

Agustín José Menéndez

Arena, Universitetet i Oslo ( email )

PO Box 6706 St Olavs plass
Oslo, N-0317
Norway

Facultad de Derecho, Universidad de Leon ( email )

Campus de la Vegazana S/N
Leon, 24071
Spain

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