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The Constitutional Success of Ratification Failure

Published online by Cambridge University Press:  06 March 2019

Maria Cahill

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The momentum behind the Constitutional Convention and the Constitutional Treaty was not that Brussels realised that the peoples of Europe were crying out for the drafting of a beautiful text, which they could take to their hearts as their very own constitution. That much, at least, has always been fairly clear. Of course, this should not present an impenetrable barrier to constitutional endeavour, because the constitutional possibility is the possibility that is generated by the effort of founding community in the honouring of community, honouring community in the recognition of community, recognising community in the identification of community, and identifying community in the founding of community. Every constitutional text is “guilty” of grasping and writing down its declarative commitment in this way. At two levels, then, the peculiarity of the European situation comes to light. First, this very fact that the people did not consider themselves part of a community that could be founded, honoured, recognised and identified through a constitutional register managed to become the crucial justifying motive for the production of a constitutional text. Secondly, and infinitely more significantly, this unspoken but widely-held belief in the constitutional impossibility becomes the register in which we seek to understand all the various positions and interests that emerge in the constitutional debate, and through which we seek to mandate those positions in the constitutional text.

Type
Developments
Information
German Law Journal , Volume 7 , Issue 11 , 01 November 2006 , pp. 947 - 966
Copyright
Copyright © 2006 by German Law Journal GbR 

References

1 Some examples of academic efforts to explain and characterise this failure include: Richard Bellamy, The European Constitution is Dead, Long Live European Constitutionalism, 13 Constellations 181 (2006); Brunkhorst, Hauke, The Legitimation Crisis of the EU, 13 Constellations 165 (2006); Gráinne de Búrca, The European Constitution Project after the Referenda, 13 Constellations 205 (2006); Gráinne de Búrca, After the Referenda, 12 European Law Journal 6 (2006); Dehousse, Renaud, The Unmaking of a Constitution: Lessons from the European Referenda, 13 Constellations 151 (2006); Piris, Jean-Claude, The Constitution for Europe: A Legal Analysis Chapter 1 (2006); Walker, Neil, A Constitutional Reckoning, 13 Constellations 140 (2006); Walker, Neil, Big “C” or Small “c”?, 12 European Law Journal 12 (2006).Google Scholar

2 The English translation of the text of the Humboldt speech is available at: http://www.auswaertiges-amt.de/diplo/en/Infoservice/Presse/reden/2000/000512-FromConfederacyto.html . All quotations used here are taken directly from this translation. For general reaction to the speech see Martin Kremer's lecture “Preparing Europe's Future: The Actuality of Joschka Fischer's Berlin Speech” as part of the Cicero Foundation Seminar “The French Presidency and the Treaty of Nice” Paris, 17 November 2000, available at www.cicerofoundation.org/lectures/p4kremer.html, and the many thoughtful contributions in the Jean Monnet Working Paper series symposium entitled ‘Responses to Joschka Fischer’ Jean Monnet Working Paper No. 7/00, available at http://www.jeanmonnetprogram.org/papers /papers00.html.Google Scholar

3 In what follows, I do not mean to suggest that the Monnet Method was an unequivocal success, or that it should be reinstated the method of European integration but I do wish to point out the weakness and the inconsistencies in Fischer's critique of Monnetism because I believe it is these weaknesses and inconsistencies which enable us to clearly evaluate the success and failure of the alternative “Fischer Method” or “Fischerism”: the “re-establishment” of Europe by means of a “deliberate political act”. I present the positions in dialogical form merely in the effort to bring clarity to rather complicated arguments. Obviously, I do not in the least pretend that Monnet is responsible for my hypothesis as to how he would have responded.Google Scholar

4 Dehousse, Renaud, Rediscovering Functionalism (Jean Monnet Working Paper, 7/00, 2000).Google Scholar

5 Id.Google Scholar

6 But cf. Magnette, Paul, In the Name of Simplification: Coping with Constitutional Conflicts in the Convention on the Future of Europe, 11 European Law Journal 432 (2005) (Arguing that deliberation and constitutional conflicts were an inevitable part of the Constitutional Convention given the ambivalence at the heart of this Laeken mandate for “simplification.”).Google Scholar

7 This is Joseph Weiler's position. See generally Joseph Weiler, The Constitution of Europe: do the new clothes have an emperor? And other essays on European Integration (1999); Weiler, Joseph, In Defence of the status quo: Europe's Constitutional Sonderweg, in European Constitutionalism Beyond the State 7 (Joseph Weiler & Marlene Wind eds., 2003); Weiler, Joseph, A Constitution for Europe? Some Hard Choices, 40 Journal of Common Market Studies 563 (2002).Google Scholar

8 This general position is typified by Grimm, Dieter and Andrew Moravscik. Grimm's arguments support the governments’ position that sovereignty should remain at the national level. See Grimm, Dieter, Does Europe Need a Constitution?, 1 European Law Journal 282 (1995); Grimm, Dieter, Treaty or Constitution? The Legal Basis of the EU after Maastricht, in Developing a Constitution for Europe 69 (Erik Eriksen et al. eds., 2004); Grimm, Dieter, Integration by Constitution, 3 International Journal of Constitutional Law 193 (2005). Moravscik argues that the democratic deficit is not actually such an illegitimate position. See Moravscik, Andrew, The EU Ain't Broke, Prospect (March 2003); Moravscik, Andrew, In Defence of the Democratic Deficit: Reassessing Legitimacy in the European Union, 40 Journal of Common Market Studies 603 (2002); Moravscik, Andrew, Europe Works Well Without the Grand Illusion, Financial Times, June 14, 2005.Google Scholar

9 This position is easy to associate with the players in the Constitutional Convention itself. In terms of academic articulation, see Bogdandy, Armin von, The Prospect of a European Republic: What European Citizens are Voting On, 42 Common Market Law Review 913 (2005). In the aftermath of the Humboldt speech, see Habermas, Jürgen, Why Europe Needs a Constitution, 11 New Left Review 5 (2001). See also Weiler, Joseph, On the power of the Word: Europe's constitutional Iconography, 3 International Journal of Constitutional Law 173 (2005); Maduro, Miguel, The Importance of Being Called a Constitution: Constitutional Authority and the Authority of Constitutionalism, 3 International Journal of Constitutional Law 316 (2005).Google Scholar

10 Bellamy, , supra note 1, at 181.Google Scholar

11 Succumbing to the temptation is and was very understandable because it would finally give those agreements the stability of a constitutional backing. It was also entirely predictable, given that, among “Fischerists,” the advocacy of the constitutional project is grounded in the belief that diversity produces disagreements which risk undercutting the entire construct of the European polity. (For this reason, indeed, those who emphasise the constitutional side of the CT have an even greater incentive than those who concentrate on its Treaty-like qualities to seek to eliminate the opposite point of view.) Perhaps it was even reasonable, insofar as a constitution is always the product of the political climate in which it is formulated. But it fails to appreciate that a constitution must also somehow raise itself beyond the immediate political climate and context and self-consciously make a whispered appeal to transcendence in order just to be constitutional. In their agnostic pragmatism, those who hasten to build a constitution on top of an already-existing agreement relinquish the very constitutional possibility they seek to enshrine, making the most elementary constitutional error.Google Scholar

12 Bellamy, , supra note 1, at 184.Google Scholar

13 Walker, , supra note 1, at 141.Google Scholar

14 Id. at 142.Google Scholar

15 Id.Google Scholar

16 Id. at 143.Google Scholar

17 There is a growing literature on constitutional pluralism. See generally, Kumm, Mattias, Who is the Final Arbiter of Constitutionality in Europe?, 36 Common Market Law Review 351 (1999); Kumm, Mattias, The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty, 11 European Law Journal 262 (2005); MacCormick, Neil, Questioning Sovereignty: Law, State and Nation in the European Commonwealth (1999); Maduro, Miguel Poiares, Contrapunctual Law: Europe's Constitutional Pluralism in Action, in Sovereignty in Transition 539 (Neil Walker ed., 2005); Walker, Neil, The Idea of Constitutional Pluralism, 65 Modern Law Review 317, 338 (2002).Google Scholar

18 Because, as Fischer continued in the Humboldt speech, “it would be an irreparable mistake in the construction of Europe if one were to try to complete political integration against the existing national institutions and traditions rather than by involving them.”Google Scholar

19 “If strong advocates [constitutional advocates] attribute the Constitution's rejection to its not going far enough, weak advocates [treaty advocates] contend it was rebuffed for going too far.” Bellamy, supra note 1, at 181.Google Scholar

20 In this way, I would dispute the “epistemic-ness” of “epistemic pluralism” as defended by Walker. Walker, supra note 17.Google Scholar

21 I am grateful to Andrew Glencross for this insight, without presuming that he concurs with the manner of its representation here.Google Scholar

22 This is, I submit, why the phenomenon of “coalitions of opposites” is particularly common in European circles – whereby people who have nothing in common ideologically find themselves transiently and unimportantly on the same side and arguing for the same thing. In these coalitions of opposites there is no real understanding, no real progress towards common goals, there is only shortlived collaboration when interests happen to overlap on specific issues.Google Scholar

23 Bruce Ackerman's detailed analysis of American constitutionalism in which he “uncovered” three “constitutional moments” has become a yoke on the shoulders of European academics as they try to replicate that study in European terms. See Ackerman, Bruce, Constitutional Politics/Constitutional Law, 99 Yale Law Journal 453 (1989). In 1999, Joseph Weiler identified Maastricht as a European constitutional moment. See Weiler, supra note 7, at 3–4. See also Fossum, John and Menéndez, Agustín, The Constitution's Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union, 11 European Law Journal 380 (2005) (analyzing the constitutional convention in these terms); Pernice, Ingolf, The Draft Constitution of the European Union: A Constitutional Treaty at a Constitutional Moment, in A Constitution for the European Union: First Comments on the 2003-Draft of the European Convention (Ingolf Pernice & Miguel Maduro eds., 2004); Castiglione, Dario, Reflections on Europe's Constitutional Moment, CIDEL Conference on “Deliberative Constitutional Politics in the EU,” Zaragoza, June 19–22, 2003. For an overview of the aptness of these “moment” analyses in the EU, see Walker, Neil, After the Constitutional Moment (Federal Trust Online, Paper 32/03, 2003).Google Scholar