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

AuthorMarkus Patberg
DOIhttp://doi.org/10.1111/eulj.12262
Publication Date01 Nov 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 crossborder 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 crossborder demos of European citizens, advocates of demoicracy
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.unihamburg.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), 192214, at 200.
2
F. Cheneval, S. Lavenex and F. Schimmelfennig, Demoicracy 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 3537.
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;23:441453. © 2018 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 441

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