Big ‘C’ or Small ‘c’?

• Published date: 01 January 2006
• Date: 01 January 2006
• DOI: http://doi.org/10.1111/j.1468-0386.2006.00304.x
• Author: Neil Walker

Big ‘C’ or Small ‘c’?

Neil Walker*

So where now, after the French and Dutch ‘no’ votes, for those of us who believed the

Constitutional Treaty path, however perilous, to be worth taking? Should we accept

that our destination was the wrong one and/or our route ill-considered, or are we jus-

tified in persevering with the idea of documentary constitutionalism? To answer this,

we should recall the initial reasons offered in support of a fallible constitutional process.

First, it was claimed, or more often simply assumed, that the prospective prize of a rat-

ified Constitutional Treaty outweighed the negative consequences associated with

failure. Second, the risk of these negative consequences was in any case arguably slight,

either because the Constitutional Treaty’s rejection was unlikely, or because rejection

would not destroy the larger process or objective to which the Constitutional Treaty

sought to contribute. On what basis were these claims made, and crucially, how do they

look now that the initial constitutional route appears to be blocked?

The first argument—the argument of substance—divides into two. The Constitu-

tional Treaty’s prize would be both material and symbolic. Materially, the case for the

Constitutional Treaty was that the Nice Treaty left unfinished institutional business in

the face of the pending CCEE Enlargement, particularly with regard to streamlining

the legislative voting procedures and refining the executive direction (through Com-

mission and European Council) of an EU of 20-plus. But this was never an argument

about the scale or scope of the reform programme. Even if we define the urgent agenda

more generously than the management of enlargement, and include other timely ini-

tiatives such as greater foreign policy coordination through an EU Foreign Minister,

the changes contemplated by the Constitutional Treaty are no more significant than

those wrought by various earlier treaties, and arguably much less significant than

achieved in the 1990s at Maastricht and Amsterdam. If, nevertheless, only a self-styled

Constitutional Treaty could deliver the necessary (if modest) additional reforms, then

the material case for the Constitutional Treaty would be made.

And given the relentless pace of change since the SEA and the growing evidence of

popular scepticism towards the EU after Maastricht, Europe had indeed been showing

signs of Treaty fatigue in general and growing disillusionment with the IGC process in

particular. The prospect of more of the same threatened a replay of Nice’s weary com-

promise, if not downright failure. Arguably, therefore, only a moment of constitutional

import could provide the gravitas—the sense of history-in-the-making—required to

concentrate minds on the importance of further reform. And only a constitutional

process, complete with a relatively deliberative and inclusive Convention and with a

healthy spread of ratification referendums (however tardily and reluctantly conceded!)

European Law Journal, Vol.12, No. 1, January 2006, pp. 12–14.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Professor of Law, European University Institute, Florence.