A Polity without a State? European Constitutionalism between Evolution and Revolution
This papers considers the European constitution-making process in the light of three perspectives of constitutional legitimacy. The evolving treaty, it is claimed, is legitimate in the sense of being (i) functional and (ii) power-constraining. Constitutional legitimacy, however, may also require a (iii) power-establishing or revolutionary character; according to this third perspective, the EU constitutional process does not fully answer the demands of legitimacy.
In this paper the relationship between constitution and state is analysed. The EU's constitutional structure is evaluated according to three ideas of constitutionalism: the evolutionary or functionalist idea; the power-binding idea; and the power-establishing or revolutionary idea. It is found that one can claim that the EU has a constitution both in functional and power-constraining terms. What is lacking though is the revolutionary idea of a democratic constitution made by the people, facilitated through strong publics and authorised through general public debate. It is not the conventions of an elite remote from the public but only the citizens themselves who can turn the legally existing constitutional text books against the imperial and hegemonic reality of European law.