This article offers an alternative model for the EU’s constitutional future. Its objec-
tive is to invert the Union’s current path-dependency: changes to the way in which
the Union works should serve to question, rather than entrench, its future objectives
and trajectory. Our conceptual starting point is (as in our previous articles) a commit-
ment to self-determination. Self-determination offers a richer framework than the
concept of democracy (often used in the context of the EU), as it is able to articulate
the importance of the citizens’actual capacity to affect the economic, social and moral
texture of society (rather than limiting its demands to those of formal voice in the
decision-making process). As will be discussed subsequently, this distinction has impor-
tant consequences for the way in which we should think about the Union’s future.
Ironically, in fact, it is often domestic commitments to formal democracy that stand
in the way of a meaningful European project of self-determination.
After brieﬂy outlining how the Union’s response to the Euro-crisis has undermined the
concept of constitutional balance—the EU’s pre-crisis structure of self-determination
(Section 2)—the paper will argue that the post-crisis EU requires a quite different consti-
tutional framework. Such a framework must focus on reproducing the social and polit-
ical cleavages that underlie the idea of substantive balance on the national level and that
allow divisive political choices to be legitimised (Section 3). This reform project implies
reshaping the prerogatives of the European institutions. Rather than seeking to prevent
or bracket political conﬂict, the division of institutional competences and tasks should be
rethought in order to allow the EU institutions to internalise within their decision-
making process the conﬂicts reproduced by social and political cleavages (Section 4).
This, primarily, requires a shift in power from executive and technocratic institutions to-
wards representative bodies. This normative and institutional re-alignment also requires
a rethinking of the question of political equality that underlies spatial balance in the EU.
Rather than balancing the equality of states and citizens within existing institutions, it is
argued that we should move towards two separate institutions—one intergovernmental
and one supranational—that respect and reﬂect the full equality of their constituents.
The recent trend, we argue, that understands national parliaments as the bulwark of
democratic authority in the EU threatens, rather than protects, the concept of self-
determination in Europe (Section 5). Finally, in establishing and securing these values,
we see an important role for law. A reformed legal order would play an active role as
a facilitator and container for political deliberation over the ends of the integration pro-
ject. It would in this sense leave important substantive questions to the political sphere
instead of trying to steer policy choices within formal legal discourse (Section 6).
This reconstitution of the EU’s normative, institutional and legal dimensions is neces-
sary for it to further the project of self-determination. Rather than entrenching certain
conceptions of ‘the good life’or a particular balance between politics and the market, the
EU must serve—as any political project ultimately must—to question these conceptions.
Without such drastic changes, the integration project is likely to continue to generate the
despondency and lethargy that are as much a cause as a symptom of its legitimacy crisis.
II Constitutional Balance and Its Disintegration During the Euro-crisis
In a previous article, we argued that the stability and legitimacy of the Union has been
undermined by the Member States’responses in containing the Euro-crisis.
Dawson and De Witte, above, n. 1.
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