A systematic justification for the EU's pouvoir constituant mixte: Principles of constitutional politics in supranational polities

• Published date: 01 November 2017
• DOI: http://doi.org/10.1111/eulj.12262
• Date: 01 November 2017

ORIGINAL MANUSCRIPT

A systematic justification for the EU'spouvoir

constituant mixte: Principles of constitutional

politics in supranational polities

Markus Patberg*

Abstract

This article presents a rational reconstruction of the practice of constitutional politics in supranational polities. In

doing so, it seeks to refocus the ongoing debate about constituent power in the EU on the question of who, under

what conditions, is entitled to decide on the EU constitutional order. The analysis leads to a number of principles

of democratic legitimacy, which include the political autonomy of the members of the state demoi as well as the

political autonomy of the members of a cross‐border demos. In explicating these parallel entitlements to political

autonomy, I provide a systematic justification for the notion of a pouvoir constituant mixte, according to which the

citizens should take control of EU constitutional politics in two roles: as European citizens and as Member State

citizens.

1|INTRODUCTION

There is a growing normative debate about constituent power in the EU, especially about by whom it is held. While

accounts of regional cosmopolitanism claim that there “is and can only be one constituting subject even in a multilevel

configuration like the EU”,

1

and thus assume a cross‐border demos of European citizens, advocates of demoi‐cracy

insist that the EU “has several pouvoirs constituants”,

2

namely the peoples of the Member States. The idea of a pouvoir

constituant mixte suggests that the EU derives its democratic legitimacy from a dual subject consisting of the commu-

nity of European citizens on the one hand and the communities of Member State citizens on the other.

3

In many

respects, this debate could not be timelier. The euro crisis and Brexit have given new impetus to the idea that the

EU needs to be founded anew in a democratic process of constitution making.

4

However, the different notions of

*

Postdoctoral Researcher, University of Hamburg (markus.patberg@wiso.uni‐hamburg.de). Research for this article was suppo rted by

the DFG project ‘Reclaiming Constituent Power?’.Earlier versions were presented at workshops and conferences in Amsterdam, Ham-

burg, Trento, London and Prague in 2015 and 2016. I am grateful to the participants for very helpful contributions. For extensive dis-

cussion and written comments I would like to thank Hans Agné, Svenja Ahlhaus, Jan Pieter Beetz, Ben Crum, Jürgen Habermas, Peter

Niesen, Christian Volk and Bertjan Wolthuis.

1

E.O. Eriksen, ‘On the Pouvoir Constituant of the European Union’, in G.M. Genna, T.O. Haakenson and I.W. Wilson (eds.), Jürgen

Habermas and the European Economic Crisis: Cosmopolitanism Reconsidered (Routledge, 2016), 192–214, at 200.

2

F. Cheneval, S. Lavenex and F. Schimmelfennig, ‘Demoi‐cracy in the European Union: Principles, Institutions, Policies’, (2015) 22 Jour-

nal of European Public Policy, 1, 4. See also the contributions by J.P. Beetz and A. Scherz in this special issue.

3

J. Habermas, The Crisis of the European Union: A Response (Polity Press, 2012), at 35–37.

4

M. Dawson and F. de Witte, ‘From Balance to Conflict: A New Constitution for the EU’, (2016) 22 European Law Journal, 204; N.

Walker, ‘The European Fallout’, (2016) 17 German Law Journal, 125.

DOI: 10.1111/eulj.12262

Eur Law J. 2017;23:441–453. © 2018 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 441