Euroconstitutionalism and its Discontents

This book addresses the question of social constitutionalism, especially with regard to its role in the contemporary European project. For reasons of history and democracy, Europeans share a deep commitment to social constitutionalism. But at the same time, Europeans are concerned about an overconstitutionalization and the balancing-away of less-favoured rights, leading to the entrenchment of the status quo and stifling of the living constitutionalism and democracy. The book challenges the common view that constitutionalization means de-politicization. Without claiming for themselves the final word, courts can exert a more indirect—forum-creative and agenda-setting—role in the process of an ongoing clarification of the meaning of a right. In exerting this role, courts rely less on a pre-existing consensus, but a potential consensus is sufficient: courts can induce debate and deliberation that leads to consensus in a non-hierarchical dialogue in which the conflicting parties, state actors, civil society organizations, and the diverse stakeholders themselves develop flexible substantive standards that interpret constitutional requirements, often over repeat litigation. The CJEU and the ECtHR—as courts beyond the nation state—in their constitutionalizing jurisprudence are able to constructively re-open and re-politicize controversies that are blocked at the national level, or which cannot be resolved at the domestic level. But, crucially, the understanding of constitutional framework-principles is itself subject to revision and reconsideration as the experience of dealing with the diverse national contexts of discovery and application accumulates. This democratic-experimentalist process lies at the heart of the distinctive model of contemporary Euroconstitutionalism.