WP 2 - The Constitutionalisation of the EU, the Europeanisation of National Constitutions, and Constitutionalism Compared
WP 2 analyses the impact of the dual processes of EU constitutionalisation and Europeanisation of national constitutions on the reconstitution of democracy in Europe. Are these processes likely to foster supranational democracy, and if so, how? Will they undermine or consolidate national democracy? WP 2 also derives lessons from the likely defunct Laeken constitutional experience and sees this in light of relevant non-European cases of contemporary democratic constitution making.
To determine these issues we need to establish:
- The character of the link between democracy and constitution
- The character and effects of the constitutionalisation of the EU over time
- The integration of national constitutional traditions into the constitutional law of the EU
- The effects of the Europeanisation of national constitutional arrangements, that is, the adaptation of national constitutional norms to the process of juridification and constitutionalisation of supranational relations, and eventually to the writing of a supranational constitution
- The overall effects of these developments in democratic, constitutional and polity terms
The Laeken experience, with the French and Dutch referendum rejections of the Treaty establishing a Constitution for Europe, drives home the need to distinguish between constitution making and constitutionalisation. With constitution making we refer to the specific process of forging a constitution, evocatively captioned in the notion of ‘constitutional moment’. With constitutionalisation we here mean the larger process of polity formation, which includes actual operational rules, norms and institutions. Constitutionalisation can therefore entail the emergence of a material constitution, as distinct from a formal constitution.
The Laeken experience was the most explicit effort thus far to democratize the process. However, if the EU abandons any further explicit commitment to democratic constitution making, the EU will retreat to the pre-Laeken situation of a material constitution imbued with significant democratic legitimacy shortcomings. Absent a commitment to further constitution making, the normative connection between constitution and democracy at the European level will be weakened, with important political and symbolic implications. The effect could be to push the integration process back towards the transnational Model I. Given this possibility WP 2 in close cooperation with WP 1 – Theoretical framework and WP 9 - Global Transnationalisation and Democratisation Compared (through comparative endeavours) establish the kind of link there is between democracy and constitution, not only within Models II and III but also within Model I, which departs from constitutional orthodoxy.
Questions (1) and (5) concern the entire RECON project, and WP 2 is set up to provide important inputs into the project’s more general resolution of these issues. On (2) WP 2 starts by providing reasons for why Laeken failed. Further, on (2) and (3) WP 2 derives implications from each of the three RECON models pertaining to the procedural design, the substantive contents of the European constitutional arrangement, and the integration of national constitutional arrangements into a European constitutional arrangement. The models enable us to spell out and test three sets of structured expectations about the representative and participatory character of the EU constitutionalisation process, from Laeken and throughout the duration of RECON, so as to clarify the implications for democracy in Europe. A post-graduate training seminar on the constitutional law of the EU will be organised.
On the substantive contents of the European constitutional arrangement, WP 2 starts by assessing the democratic quality of the Treaty establishing a Constitution for Europe with the aid of key indicators for the EU’s nature and legitimacy foundation and considers changes over time – in co-operation with the democracy assessment undertaken in WP 3 – Representation and Institutional Make-up. This study of the constitutionalisation of the EU yields vital information on the prospects for supranational democracy in Europe. Through analysing constitutional adaptations at the national level we gain valuable insights into the factors that increase the democratic legitimacy of the supranational and the national levels of government, and derive policy implications from these. We conclude on which conception of democracy these constitutional processes speak to, i.e., whether they speak to a national, European, or cosmopolitan reconstruction of democracy, as well as how well the processes and the results reflect democratic requirements.
WP 2 also compares the EU with Canada, a multinational and multicultural state, in an area that is particularly relevant to the present European situation: the representative and participatory character of constitution making, and their link to constitutional failure. The dynamics of Canada’s approach to constitution making has many parallels with that of the EU: from executive-style politics and an intergovernmental approach to constitution making to a far more open and participatory style, which nevertheless resulted in referendum ratification failure. Three sets of aspects of the Canadian case are scrutinised for possible lessons:
- Chartered constitutional refashioning of community as a gender-empowering device
- The effects of democratically inclusive participation on constitutional change processes on outcomes
- How to interpret constitutional failure in the EU and Canada? Why do entities that have experienced constitutional failure hold together? Which RECON model best accounts for why these hold together?