Political Constitutionalism and the European Union
| Author | Michael A. Wilkinson |
| Date | 01 March 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12010 |
| Published date | 01 March 2013 |
THE
MODERN LAW REVIEW
Volume 76 March 2013 No 2
Political Constitutionalism and the European Union
Michael A. Wilkinson*
What kind of constitution is emerging in Europe? There are two approaches to answering this
question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitu-
tion in the absence of a ‘demos’, a foundation which exists only nationally. The second,
‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan
constitutionalism, based on individual rights guaranteed through a transnational rule of law.
Rejecting both for their failure to account for European constitutionalism as a historical process of
polity-building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic
quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a
constitution that reflects a common good (predominantly conceived in economic terms), albeit one
which is legally, political and socially contested. It is by capturing this complex picture of the
political formation of Europe that the constitutional question will be most fruitfully pursued.
INTRODUCTION
What kind of constitution is emerging in Europe? It might be thought that this
kind of enquiry had been laid to rest in the wake of the failure of the constitutional
project and the Lisbon Treaty’s abandonment of the ‘constitutional concept’.1
Alternatively one might think that there is and can be no such proper enquiry in
the absence of a European state or demos. But it is argued here that the constitu-
tional question remains open, contested and urgent.2By this is not meant the
question of whether a documentary ‘Constitutional’ project is likely to be resur-
rected in the near future; but neither is it to suggest that the eventual fate of that
project, rejected in popular referenda in France and the Netherlands, is immaterial.
The extent to which the Lisbon ‘Reform’ Treaty differs in substance and
structure from the discarded Constitutional Treaty has been the subject of much
*London School of Economics and Political Science. Earlier versions of this paper were presented at
the Institut Michel Villey, Paris II and the European Public Law Theory seminar series at the LSE. I
would like to thank participants at both seminars for their contributions. For comments on earlier
drafts, I would like to thank, with the usual disclaimer, Grégoire Webber, Hans Lindahl, Carol Harlow
and Floris de Witte.
1 The European Council announced the abandonment of the constitutional ‘concept’ in the summer
of 2007, see the German Presidency Conclusions: European Council, Brussels, 21–22 June 2007.
2 As Neil Walker remarks, ‘even if, in the wake of constitutional failure, support for a self-styled
constitutional solution has eroded, nothing has happened either to render the underlying issues in
question less pressing nor, crucially, to suggest that any better method of addressing them has been
found than the constitutional way.’ See N. Walker, ‘The Place of European Law’ in J. H. H. Weiler
and G. De Burca (eds), The Worlds of European Constitutionalism (Cambridge: CUP, 2011) 57, 102.
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(2) MLR 191–222
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
discussion.3Although the difference between them is more apparently symbolic
than material, it would be a mistake to devalue the currency of symbolic
resources in constitutional discourse.4It would also be a mistake to underestimate
the importance of the substantive changes wrought by the Lisbon Treaty. And
yet, analyses of textual modifications, however significant to the mundane
workings of the Union as a supranational organisation, will not yield incisive
answers to the constitutional question.
The constitutional question involves more than an analysis of positive laws,
constitutional texts and institutional arrangements. It is a question of how best to
conceive of the European Union as a political community; it is to ask how this
community is constituted. More specifically, it is to ask what Europeans have in
common and are willing to decide together in terms of the shape and substance
of their legal, political and social system.
This is an important question because the vitality of a constitution will
ultimately depend upon the allegiance of people to it. As Joseph Weiler recently
put it: however powerful the ‘political Messianism’ of the founding fathers of
European Union in animating a generation of European idealists, their vision, if
not ‘rapidly anchored in the legitimation that comes from popular ownership . . .
rapidly becomes alienating and, like the Golem, turns on its creators.’5
A sense of ‘popular ownership’ of a polity need not imply a substantive
consensus. In the context of European integration, the constitutional question
receives a wide range of answers, from a minimal Free Trade Area through to a
more deeply integrated Internal Market, all the way to a fully-fledged federal
Super-State. Description and prescription are hard, if not impossible, to prise
open because it is such a rapidly evolving object: our understanding of what
Europe is cannot be entirely separated from our vision of what it ought to be. The
right question is not therefore ‘what sort of polity is the European Union?’ but
rather, ‘what sort of polity is it becoming?6This is the question that animates the
discourse of political constitutionalism.
There is a more basic point here, which transcends the debate in the EU.
Constitutional discourse in any context has an inherently teleological aspect.
Every political community, Aristotle noted, ‘is established for the sake of some
good’ and it is in its constitution that the nature of this good is revealed.7To insist
3 For an academic assessment of the legal and political significance of the Lisbon Treaty, see eg J-C.
Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge: CUP, 2010).
4 See eg N. Walker, ‘European Constitutionalism and the Problems of Translation’ in M. Wind and
J. Weiler (eds), European Constitutionalism Beyond the State (Cambridge: CUP, 2003).
5 J. Weiler, ‘Editorial – 60 Years Since the First European Community: Reflections on Political
Messianism’ (2011) 22 European Journal of International Law 303, 308 (emphasis added).
6 J. Bohman, ‘Reflexive Constitution-Making and Transnational Governance’ in E. Eriksen (ed),
Making the European Polity: Reflexive Integration in the EU (London: Routledge, 2005) 33 (emphasis
added). Even if a ‘snapshot’ of the EU can sensibly be analysed, it resembles ‘neither fish nor fowl’
ibid, 33. Although not quite, as Jacques Delors famously remarked, an entirely ‘unidentified
political object’, it remains resistant to straightforward categorisation – as the ubiquity of the sui
generis label in scholarship of European integration attests.
7 ‘Since we see that every city-state is a sort of community and that every community is established
for the sake of some good (for everyone does everything for the sake of what they believe to be
good), it is clear that every community aims at some good, and the community which has the
most authority of all and includes all the others aims highest, that is, at the good with the most
Political Constitutionalism and the European Union
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited.
192 (2013) 76(2) MLR 191–222
that all we have (and ought to have) in common is a Common Market is to
answer the constitutional question – even if only implicitly – in one particular
and contested way. It is to describe and most frequently also to prescribe an
economic constitution, which is, minimally, a common good. Irrespective of the
accuracy (or desirability) of this minimalist market-based account of the EU, it
implies a type of European citizen, polity and constitutional identity, albeit a thin
one.
And yet those who conceive constitutionalism in this collective sense gener-
ally struggle to situate the constitutional question beyond the national level,
because on their understanding, constitutionalism presupposes a thick demotic
identity in order for the notion of the common good to have any traction and
this is to be found nationally, and not beyond. From this perspective, which I call
‘foundational constitutionalism’, Europe does not, and cannot have a constitu-
tion, or at least, a constitution in ‘the full sense of the term’ because there is no
European demos or collective constitutional subject (the first section below). On
the other hand, in the liberal-legal tradition, constitutionalism – whether state or
non-state, national or post-national – evades a conception of the common good
by privileging restraints on the exercise of public power, in the name of the rule
of law and of the protection of individual rights. From this perspective, which I
call ‘freestanding constitutionalism’, the constitutional question, ironically, is
evaded by implying that Europe already has a fully-fledged constitution because
it has a strong, if imperfect, set of legal guarantees of private (economic) liberty
(the second section below).
This bifurcation of the constitutional discourse in Europe fails to account for
European constitutionalism as a political project. Rejecting both foundational
and freestanding models I propose a distinct third account, which I call ‘political
constitutionalism’ (the third section below).8From this perspective, the consti-
tution of Europe is a dynamic and substantial process of polity-formation, based
neither on the foundational idea of a national will nor on the freestanding idea
of individual rights but on the messy, contingent and contested interplay of law,
politics and society, national as well as supranational. Once reconstructed in this
way, rather than stipulating alternative answers to the default threshold question,
– ‘does, or should, Europe have a constitution?’ – we can begin to answer the
authority. This is what is called the city-state or political community.’ Aristotle, Politics
[I.1.1252a1–7]. ‘The constitution . . . reveals the aim of the city-state’ ibid [IV.1.1289a17–18].
8 It should be noted at the outset that I use the expression ‘Political Constitutionalism’ differently
from the way it has become associated with the work of Richard Bellamy and Adam Tomkins (see
eg R. Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy
(Cambridge: CUP, 2007) and A. Tomkins, Our Republican Constitution (Oxford: Hart Publishing,
2005)). It is not intended as a normative argument either against constitutional judicial review or
in favour of a republican reading of the constitution. It is a distinct type of approach, seeking
instead to get behind the ‘positive constitution’. One way to capture the difference is to say that
‘political’ constitutionalism is understood here not in contrast to ‘legal’ but rather in contrast to
‘apolitical’ constitutionalism. It bears more affinity with the way Griffith originally used the term
‘political constitution’ (see J. A. G. Griffith, ‘The Political Constitution’ (1979) 42 MLR 1) to
capture the sense of the constitution of the polity as a whole. I present the term not in the sense
that a particular polity, such as the UK, might be said to have a political (rather than a legal)
constitution but in the sense that every polity does.
Michael A. Wilkinson
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. 193
(2013) 76(2) MLR 191–222
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