The Constitution's Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union1

• Author: Agustín José Menéndez,John Erik Fossum
• Published date: 01 July 2005
• DOI: http://doi.org/10.1111/j.1468-0386.2005.00267.x
• Date: 01 July 2005

380 © Blackwell Publishing Ltd. 2005

The Constitution’s Gift?

A Deliberative Democratic Analysis

of Constitution Making in

the European Union1

John Erik Fossum and Agustín José Menéndez

Abstract: Our aim in this article is to consider whether the Union’s deliberation over and

decision-making on constitutional norms, can contribute to render it more democratic.

From a normative perspective, the way a constitution is forged has deep implications for its

democratic legitimacy. In light of recent events, we consider how procedural changes in

constitution-making might contribute to rectify the Union’s democratic deficit. To do so

we first develop a thin model of constitution-making based on the central tenets of delib-

erative democracy. Through this we seek to outline how a legitimate constitution-making

process will look from a deliberative democratic perspective. Second, we distil out some of

the core characteristics of the Intergovernmental Conference (hereafter, IGC) model and

assess this against the normative model, to establish the democratic quality of the IGC

model. Third, we assess the current Laeken process by means of spelling out the central

tenets of this mode of constitution-making, and we assess it in relation to the normative

standards of the deliberative model. In the fourth and final step, we consider what

contribution constitution-making might make to the handling of the EU’s legitimacy

deficit(s). We find that the Laeken process, in contrast to previous IGCs, was explicitly

framed as a matter of constitution-making. It carried further the democratization of

constitution-making, through its heightened degree of inclusivity and transparency.

However, when considered in relation to the deliberative-democratic model, it is clear that

the Laeken Constitutional Treaty cannot be accorded the full dignity of a democratic con-

stitution. The Constitutional Treaty can however lay the foundations for We the European

people to speak.

[T]he Union stands at a crossroads,a defining moment in its existence...What might the basic features

of such a [European] constitution be? The values which the Union cherishes, the fundamental rights

and obligations of its citizens, the relationship between Member States in the Union? (Laeken

Declaration)

I Introduction

The European Union has gradually emerged as a political community in its own right.

The EU affects the distribution of power and resources in the Member States, as well

European Law Journal, Vol.11, No. 4, July 2005, pp. 380–410.

© Blackwell Publishing Ltd. 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

1This article has been inspired by our reading of the seminal work of Bruce Ackerman on the American

Constitution.

July 2005 Constitution Making in the EU

© Blackwell Publishing Ltd. 2005 381

as in affiliated states. This comprehensive body of treaties, regulations, and directives

covers virtually all areas of public policy. Through this body of law, the EU confers

rights as European citizens on the nationals of the Member States. Moreover, the

process of European integration has generated a supranational structure,2and

has spurred a progressive convergence of the Member States’ institutional

structures.3It has become increasingly apparent that the EU’s institutions and its laws

affect and even shape the daily lives of European citizens in a myriad of ways.

The transformation of Europe has come hand-in-hand with the realisation that the

EU’s legitimacy cannot be exclusively based on its capacity to solve common problems;

neither can it be merely derived from its Member States,4which pioneering neo-

functional or intergovernmental accounts of European integration tended to assume.

The increasingly political nature of the EU has rendered output and indirect legitimacy

inadequate.5These modes of legitimation, characteristic of classical international

organisations, simply cannot cope with the EU’s legitimacy needs. The net upshot is

that the EU will continue to suffer from a legitimacy gap unless it can establish its own

democratic credentials. Since the ratification of the Maastricht Treaty in 1992, citizens

have repeatedly rendered clear that their commitment to the project of European inte-

gration is far from unconditional.6

In this context, it is widely held that the establishment of a democratically decided

constitution could go far in redressing the democratic deficit. Such a claim has been

raised both before, as well as after, the work of the Convention on the Future of the

European Union (the Convention).7

Our aim in this article is to consider whether the Union’s deliberation over and deci-

sion-making on constitutional norms, can contribute to render it more democratic. From

a normative perspective, the way a constitution is forged has deep implications for its

2See J.H. H. Weiler, ‘The Community system: the dual character of supranationalism’, 1 (1981) Yearbook

of European Law 267–306, and The Constitution of Europe (Cambridge University Press, 1999); Christ-

ian Joerges and Ellen Vos (eds.) EU Committees, Social Regulation, Law and Politics (Hart Publishers,

1999); Edoardo Chiti, L’Agenzie Europee(CEDAM 2002).

3There is a rapidly growing body of literature on Europeanisation. See, for example, Cristopher Knill, The

Europeanisation of National Administrations (Cambridge University Press, 2001); Johan P. Olsen, ‘The

Many Faces of Europeanisation’, 40 (2002) Journal of Common Market Studies 581–602; Kenneth Hanf

and Ben Soetendorp (eds.) Adapting to European Integration—Small States and the European Union

(Addison Wesley Longman Ltd, 1998). In the legal literature, Lord Denning aptly described European

law as the ‘incoming tide’. See H P Bulmer Ltd v J Bollinger SA [1974] Ch 401 at 418.

4See Erik Oddvar Eriksen and John Erik Fossum, Democracy in the European Union. Integration through

deliberation? (Routledge, 2000); Erik Oddvar Eriksen, John Erik Fossum and Agustín José Menéndez,

The Chartering of Europe (Nomos, 2003); Developing a Constitution for Europe, (Routledge, 2004).

5Jürgen Habermas, ‘Why Europe needs a Constitution?’, 11 (2001 second series) New Left Review 5–26.

6Consider the initial Danish ‘no’ and the French ‘petite oui’in the respective Maastricht Treaty referenda,

together with the recent ‘no’ in Ireland to the Nice Treaty. For a theoretical analysis of European refer-

enda, see Patricia Roberts Thomson, ‘EU Treaty referendums [sic] and the European Union’, 23 (2001)

Journal of European Integration 105–138.

7It goes without saying that one could claim that the European Union cannot and/or should not be por-

trayed as a full-blown political community, but as an international organisation.Cf. Derrick Wyatt, ‘New

Legal Order,or Old?’, 7 (1982) European Law Review 147. The acceptance of such an analysis would nec-

essarily lead to the conclusion that the attempt at reconstructing and assessing treaty amendment as a

matter of constitution making is simply wrong. This is a coherent theoretical position, but we find that it

fails to come to grips with the EU’s breadth and scope of powers and influence not only upon the Member

States, but also upon the citizens.