A Permanent Constitutional Assembly

This chapter presents an institutional proposal for how citizens could be enabled—in the dual role of European and national citizens—to exercise constituent power in the EU. To explain in abstract terms what an institutional solution would have to involve, it draws on the notion of a sluice system, according to which the particular value of representative bodies consists in their capacity to provide both transmission and filter functions for democratic processes. On this basis, the chapter critically discusses the proposal that the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC) should transform itself into an inter-parliamentary constitutional assembly. As this model allows constituted powers to continue to operate as the EU’s de facto constituent powers, it cannot be expected to deliver the functions of a sluice system. The chapter goes on to argue that a more convincing solution would be to turn the Convention of Article 48 of the Treaty on European Union into a permanent constitutional assembly composed of two chambers, one elected by EU citizens and the other by member state citizens. The chapter outlines the desirable features of such an assembly and defends the model against a number of possible objections.

Why Constituent Power?

This chapter addresses the question of why a theory of constituent power in the EU is needed. While the EU has long since taken on a constitutional character, this is in no way reflected in adequate popular participation in decisions about its basic legal order. The EU is shaped through a combination of intergovernmental treaty making and integration through law that sidelines citizens. Constitutional mutation further decouples the EU’s constitutional development from popular control and shields fundamental decisions from democratic contestation. To capture the legitimacy gap that opens up here, the chapter introduces an understanding of constituent power as political autonomy at the level of constitutional politics. It argues that European integration is based on a usurpation, with constituted powers operating as de facto constituent powers. As executives and courts shape the EU in a largely self-referential manner, citizens are deprived of a crucial dimension of political autonomy. The chapter concludes with preliminary considerations on a theory of constituent power in the EU, addressing substantive and methodological challenges involved in its elaboration, as well as possible objections to the project as such.

Regional-Cosmopolitan Constituent Power

This chapter deals with the question of whether the public narrative of ‘We, the people of Europe’, which claims constituent power for a cross-border demos composed of EU citizens, can be justified in terms of a systematic model. To that end, it draws on the political theory of regional cosmopolitanism, which holds that even though the EU is not a state, it has its own political community. The literature on regional cosmopolitanism offers two possible strategies of defending the idea of an EU-wide constituent power: a first-principles approach and a reconstructive approach. The chapter argues that only the latter proves viable, and then goes on to examine the merits of the model that it gives rise to. While regional-cosmopolitan constituent power plausibly responds to the fact that the EU has created a new group of addressees and authors of the law, it neglects the continuing importance of the member state peoples and fails to explain how an EU-wide constituent power could be reconciled with the compound and dependent nature of the EU polity.

Destituent Power

This chapter takes up the public narrative of ‘We, the multitude of Europe’, which suggests that the only hope for progressive change in the EU lies in a politics of disruption, and asks whether this idea can be defended based on a systematic model. To that end, it resorts to the political theory of destituent power, according to which opposition to or withdrawal from public authority can function as a legitimate trigger for constitutional change. Distinguishing between anti-juridical and juridical conceptions of destituent power, the chapter discusses to what extent the disruptive political strategies put forward by protest movements in the EU can be regarded as justifiable. Focusing on the juridical strand as the more plausible one, it argues that ideas of destituent power as ‘state civil disobedience’ run into a problem of authorization. By contrast, popular sovereignty-based approaches illuminate a neglected dimension of constituent power: the right to dismantle public authorities without the intention to create new ones. While such a model of destituent power in part captures the actions and demands of EU protest movements, it can only complement, not replace, the constructive side of constituent power.

Extraordinary Partisanship

This chapter addresses the question of what kind of a political agent could bring about a supranational separation of constituent and constituted powers in the EU. Given that an endogenous process of change seems unlikely, it asks which exogenous forces could trigger the establishment of a higher-level constituent power. In particular, the chapter engages with the idea that transnational partisanship could function as a vehicle for constituent power in the EU. It argues that the model of networked constituent power, according to which cross-border deliberation between members of like-minded parties should initiate and guide intergovernmental treaty making at the EU level, is unconvincing because it relies on establishes parties, which must be regarded as quasi-constituted powers. By means of a rational reconstruction of the Democracy in Europe Movement 2025, the chapter then develops an alternative model of extraordinary partisanship. An extraordinary partisan association ‘co-opts’ regular parliamentary elections to acquire a mandate for a project of constitutional change. Such an organization could enable citizens from various member states to promote an opening up of the EU polity for the exercise of constituent power.

Demoi-cratic Constituent Power

This chapter turns to the public narrative of ‘We, the peoples of Europe’, according to which constituent power in the EU lies with the peoples of the member states, and asks to what extent it can be defended in systematic terms. In doing so, it draws on the political theory of demoi-cracy, which interprets the EU as a political system for the joint self-government of separate political communities. Building on the proposals of central demoi-cratic authors, the chapter discusses how the distinction between pouvoir constituant and pouvoir constitué could find a place in the theoretical framework of demoi-cracy. It then proceeds to assess the strengths and weaknesses of the resulting view. While the demoi-cratic model of constituent power is convincing in its claim that the national peoples must not be bypassed in EU constitutional politics, it fails to draw the necessary conclusion from the fact that European integration has brought about politically significant relations between the citizens of Europe—namely, that there is the need to enable the expression of cross-border cleavages.

Higher-Level Constituent Power

This chapter makes the first step in the construction of a new theory of constituent power in the EU by proposing a conceptual framework that clarifies the relation between the EU’s constituent power and the national constituent powers. In this way, it seeks to counter the objection that the EU cannot have its own constituent power because the member states retain the Kompetenz-Kompetenz. By means of a rational reconstruction of the ordinary revision procedure, especially the convention method, the chapter argues that the EU’s rules of treaty change already contain the first beginnings of a procedural-institutional innovation that can be described as a ‘levelling up’ of constituent power. One can speak of higher-level constituent power when nation-state peoples issue an authorization for constitutional politics at the supra-state level and in this way bring about a new constituent subject to which they delegate control over particular decisions. According to this view, the EU’s constituent power is neither independent of, nor equivalent to, nor combined with the constituent powers of the member states, but rather delegated by them.

Citizens All the Way Down

This chapter addresses the question of the EU’s constituent subject. To that end, it conducts an analysis of the principles of democratic legitimacy that processes of constitutional politics in supranational polities should follow. Conducting a rational reconstruction of the established practice of EU constitutional politics, the chapter examines what (the citizens of) the member states have implicitly committed themselves to by embarking on the project of European integration. In a thought experiment, it takes the perspective of citizens of constitutional democracies who seek to found a supranational polity and asks what normative standards for the exercise of constituent power they would agree on in a rational discourse. In this way, the chapter identifies a set of principles of supranational constitution making, which form the normative core of the theory of constituent power in the EU proposed in this book. These principles imply a new model of dual constituent power. Instead of ascribing the member states or their peoples the status of (collective) co-holders of constituent power, they indicate that the EU’s pouvoir constituant mixte consists of citizens all the way down.

Introduction

This introductory chapter situates the question of constituent power in the context of the recent crises of European integration and lays out the main argument of the book. The European Union’s constitutional development largely evades popular control. While this problem has recently been exacerbated by forms of constitutional mutation, citizens have started to reclaim the right to shape the EU for ‘the people’—in the course of a politicization from below that spans Eurosceptic and pro-European voices. Against this background, the books seeks to determine how citizens could exercise constituent power in the EU in an effective and legitimate manner. The chapter explains how this question will be addressed in terms of methodology—namely, based on a practice-oriented approach focused on public narratives, models, and rational reconstruction. Finally, the chapter outlines the structure of the book, which is composed of three parts, of which the first sets the stage, the second is dedicated to the exploration of competing models, and the third constructs a new theory of constituent power in the EU.

Conclusion

This concluding chapter takes stock of the book’s main findings and draws out their implications for the EU’s way forward, especially with regard to the Conference on the Future of Europe. The Conference, one of the main pledges of Ursula von der Leyen’s candidacy for Commission President in 2019, is to develop EU reform proposals by 2022. Based on the theory of constituent power developed in this book, the chapter assesses the debate about the design of the Conference. It argues that the blueprints of European Parliament and Commission, as well as demands put forward in civil society, lack a systematic understanding of the EU’s foundations of legitimacy and neglect the need for a supranational separation of constituent and constituted powers. What is missing is a clear conception of the relation between those who authorize and those who are authorized to engage in EU constitutional politics. The chapter concludes by advancing the argument that the Conference could serve as a catalyst for a reform of the EU’s rules of treaty change, with the goal of enabling citizens to exercise higher-level constituent power.