The Democratic Costs of Constitutionalisation: The European Case

• Author: Dieter Grimm
• Published date: 01 July 2015
• DOI: http://doi.org/10.1111/eulj.12139
• Date: 01 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political decisions of high salience are not only withdrawn from the democratically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.

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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