The Bride of Messina: Constitutionalism and Democracy in Europe

Abstract

An ongoing debate persists about whether the European Union is the predictable product or the unintended consequence of intergovernmental agreements. This Article argues that both sides in this debate still miss something important and therefore fail to understand the nature of constitutionalism and democracy in Europe. The current debate embraces a rational actor model, in which different institutions and actors make rival claims based on their respective rational self-interest. This Article, in contrast, maintains that the self-conceptions and principled commitments of individuals making decisions within particular institutional and professional settings have materially shaped European integration. In particular, individual actors have "recalibrated" the European enterprise, shifting the project away from member state governments and toward individuals as the locus of normative concern. Understanding European constitutionalism in this way suggests that constitutionalism is alive and well in Europe - even after the current rejection of the proposed constitutional Treaty. European constitutionalism does not depend on a formal founding moment. Instead, constitutionalism has been woven into the fabric of European integration by repeated acts of interpretation on the part of innumerable participants over many years. Understanding European constitutionalism in this way affects our assessment of European democracy. The European project is not, as the intergovernmental view claims, democratically legitimate by virtue of the Union's narrow scope of activities and dependence on member states. The Union reaches too deeply into national policies to rely on member state governments alone to legitimate the European enterprise. Therefore, in assessing the promise and perils of European democracy, we must also examine critically the supranational forms of democratic engagement to which the Union gives rise. Finally, understanding European constitutionalism and democracy as set forth here has important normative implications. It informs how judges, bureaucrats, politicians, and citizens can and should take democratic values into account when interpreting the current European legal order and building for its future.

Keywords: European Union, Constitution, Constitutionalism, European Integration, Democracy

JEL Classification: F02, F15