The Democratic Costs of Constitutionalisation: The European Case

Published date01 July 2015
Date01 July 2015
The Democratic Costs of
Constitutionalisation: The European Case
Dieter Grimm*
Abstract: There is little doubt that the European Union suffers from a legitimacy deficit.
However, the causes of this deficit and, as a consequence, the remedies are contested.
This article wants to show that an important, but often overlooked, cause for the
legitimacy deficit lies in the overconstitutionalization of the EU. The European Treaties
have been constitutionalized by the ECJ, but are full of provisions that would be ordinary
law in states. Constitutionalization means de-politicization. What has been regulated on
the constitutional level is no longer open for political decision-making. Thus, in the EU
political decisions of high salience are not only withdrawn from the democratically
legitimized institutions, but also immunized against political correction. Therefore, the
consequences from the constitutionalization have to be drawn: The Treaties should be
reduced to those norms that reflect the functions of a constitution, whereas all the other
parts have to be downgraded to the level of secondary law.
I Constitutionalism and Democracy
A Interdependence
Democracy and constitutionalism are usually not seen as mutually contradictory.
Both emerged simultaneously. Their prototypes came into being as democratic con-
stitutions based on the principle of popular sovereignty. Non-democratic constitu-
tions were regarded as a deficient form of constitutionalism. Whenever people fought
battles for constitutions, the constitutions they had in mind were democratic. Where
nations turned from authoritarian or dictatorial regimes to democracy, they started
by drafting constitutions. How could then be that constitutionalisation puts democ-
racy at risk? Before turning to the European case, a look at the beginning of consti-
tutionalism may be helpful.
Modern constitutions were the product of successful revolutions against traditional
rule: colonial in North America, absolutist in France. These revolutions differed from
the many revolts and upheavals of the past in that they did not content themselves
with replacing one ruler by another. Rather, they aimed at a different system of rule,
which they designed and made normatively binding before calling individual persons
This is a commissioned article.
* Faculty of Law, Humboldt-Universität zu Berlin, Unter den Linden 6, D-10099 Berlin, Germany.
Professor of Public Law; former Justice of the Federal Constitutional Court; former Rector of the
Wissenschaftskolleg zu Berlin, Institute for Advanced Study; recurrent visiting professor at Yale Law
School, New Haven, CT.
European Law Journal, Vol. 21, No. 4, July 2015, pp. 460–473.
© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA

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