If the problem is over‐constitutionalisation, then the answer must be de‐constitutionalisation. He suggests that
laws which do not truly belong to the highest and least contested normative cadre should be removed from the
Treaties, and instead adopted via secondary legislation. That would allow the EU legislature to define and revise them
to reflect the views of the people, potentially enhancing the democracy and legitimacy of the European project.
This article offers another view. The broad constitutionalisation of EU policies is certainly a feature of the EU.
However, the idea that this creates a democratic problem rests on the presumption that ‘fixing’the text in some way
‘fixes’its meaning—that only a rewrite can change the constitution. That in turn rests on the presumption that a con-
stitutional text definitively means whatever the constitutional court says it does. It will be argued below that in the
EU context this is wrong. It is not plausible to understand the ECJ as having definitive interpretative authority over
EU law. Both national courts and legislatures and the EU legislature are in a position to legitimately challenge its inter-
pretations and put forward differing ones. Politics can enter via a contest, or dialogue, over meaning.
Further, it will be suggested that the resulting interpretative pluralism—as Richard Stith has called it—is a more
constructive and democratic approach than either the existing state of affairs or de‐constitutionalisation.
the current dominance of the Court, interpretative pluralism allows change and participation in the shaping of EU pol-
icies. However, unlike de‐constitutionalisation, it respects the normative core of European integration, without which
the project becomes incoherent and directionless—merely integration for its own sake. Interpretative pluralism
accepts and emphasises the fundamental principles to which Member States have agreed, but allows many voices,
from the representative to the constitutional, to participate in determining what these mean.
2|THE LIMITED INTERNALISATION OF EU LAW
EU law faces many challenges. This article focuses on one: it is insufficiently internalised by the Member States. Thus
states typically engage—at best—in what Conant has called contained compliance, following the narrowest possible
interpretation of a rule or judgment, but not seeking to embed the underlying principle further within their legal sys-
An immediate functional explanation can be found in the costs, threats and disruption brought by EU norms,
which Member States seek to resist, expressing a natural status quo bias. More profoundly, Hirschl has suggested
that there is a wider, even global, trend of resistance to supranational constitutionalism, and he places national resis-
tance to the Court of Justice and EU law in the context of a movement towards what he calls ‘deference to local
The local, the national, is fighting back, in law as in politics.
In national courtrooms, the immediate drivers of such resistance may be located in several factors. First, EU law
is perceived as ‘other’—as strange, sometimes hard to understand, and as separate from national law. As such, judges
may seek to exclude or ignore it wherever they can. They are not motivated to engage, since such engagement dis-
rupts what they know and have learnt. Second, EU law is often perceived to take insufficient account of local inter-
ests and particularities and to deny the expression of local values. It is thought to strain the fabric of society by
challenging its cultural norms, institutions and even its procedural and constitutional principles—legal certainty, for
Acting on these perceptions may then be justified by a perception that EU law is less legitimate, because
of weaker democratic credentials, and, for legal actors, because of perceived activism by the Court of Justice, which is
primarily responsible for much of that law.
F.W. Scharpf, ‘De‐constitutionalisation and Majority Rule: A Democratic Vision for Europe’(2017) 23 European Law Journal, 315.
R. Stith, ‘Securing the Rule of Law through Interpretative Pluralism: An Argument from Comparative Law’(2008) 35 Hastings Con-
stitutional Law Quarterly, 401.
L. Conant, Justice Contained: Law and Politics in the European Union (Cornell University Press, 2002).
R. Hirschl, ‘Opting‐out of “Global Constitutionalism”’ (2018) 12 Law and Ethics of Human Rights,1.