ABSTRACT
This final chapter argues that a constitutional process can be an invitation to citizens to contribute to the definition of the new order, which establishes a direct link between polity and constitution-building. Confirming this link, the chapter concludes that progress on these fronts will eventually be made as new norms of multi-level governance are entrenched through the dynamic processes and practices of Community interaction. Such interaction will give rise to new approaches to democracy to inform institutional design. The constitutional debate in University circles and political arenas re-ignited by Fischer’s speech in May 2000, is ultimately about rectifying the deficiencies embedded within EU governance structures and outcomes. The achievement of this objective is a long-term process of transformation. A temporary loss of momentum in the face of voter rejection of the Constitutional Treaty is likely. The permissive consensus that has to date underpinned the EU’s right to act in an increasing range of policy areas may now be approaching exhaustion. One of the challenges currently facing the EU is to reassert the relevance of the polity in a changing social and political environment in which the rules of engagement have also changed. Elite decision-making appears unsustainable, yet voters appear disposed to punishing élites for a myriad of reasons including the lack of public involvement in the construction of the EU construct up till now. Clearly, such a setting is not conducive to great strides forward. A period of reflection is imminent, though the constitutional debate must not lapse. Ackerman correctly points out that ‘[l]iberal revolutions come in cycles. The ideal of undominated equality will not be achieved through a single great leap forward’.1 If the Constitutional Treaty is delayed for a significant period, shelved or ultimately discarded, then the need to amend the existing treaty system to redress the institutional shortcomings exacerbated by enlargement will again come to the fore. Should the Constitutional Treaty meet this fate, there would arise a need to deal with treaty reorganisation2 as well as the leftovers from the Nice Conference,
1 Ackerman, p. 36. 2 See Report of the Robert Schuman Centre of the European University Institute in
Florence to the Commission on the Reorganisation of the Treaties, 15/5/2000
which unfolded in December 2000. The constitutional debate is itself a means of drawing attention and intellectual resources toward the need for a resolution of institutional and decision-making deficiencies, providing a forum for the ‘discursive legitimation’3 of governance arrangements. Constitutional debate also ‘bring[s] the alternatives of constitutional evolution into the open’.4 As Steffek states, ‘[l]egitimation can only be generated through public discourse and, similarly, any challenge to already existing legitimacy must enter the public discourse first’.5 Ultimately, the emergence of a European-level political discourse, like a European identity, will develop ‘alongside, rather than in place of, national identity’6 and discourse. The relevance of the constitutional question may be rationally justified in normative terms: if the EU is to exercise public authority, such authority should have a democratic foundation; if it is to fulfill its promise as a new kind of polity, with distinct consequences and effects, then it ought to be acknowledged and promoted via its constitution. While these premises may be hotly contested, considerable doubt also exists as to whether the EU could ever be democratic. Merely adopting the institutional form of the state, its legitimating requirements and its rationale could constrain or hem in those effects, giving rise to the familiar and boring desert, against which Weiler cautions. Whilst I do not believe that such an outcome would necessarily follow the adoption of a documentary constitution (its nature and content will be decisive rather than its mere adoption), or indeed that all of the nation states’ vestiges are inappropriate in constructing such a constitution, I consider that extensive debate, modeling, simulation and analysis should precede the adoption of a constitution and that the sort of constitutionalism upon which a constitution depends is furthered by programs of civic education, politicisation of the EU political space and citizen participation within it. Member State cooperation is required on each of these fronts. Scholars have already discerned ‘[i]ncreasing involvement of national parties in EU governance’7 that is ‘rendering “Europe” less “foreign” for national politicians’,8 and ‘[counteracting] their tendency to blame the EU for unpopular or failing policies’.9 As regards the problem of ascribing legitimacy to EU institutions and their activities, I believe that to the extent that such institutions and activities seek to
European Commission Communication A Basic Treaty for the European Union COM (2000) 434 final, 12 July 2000.
