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Postconstitutional Treaty

Published online by Cambridge University Press:  06 March 2019

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As is well known, both the drafting and the anticipated ratification of the draft Constitutional Treaty were surrounded by a lively debate. The communicative spectacle created by the “Convention on the Future of Europe” and its ambitious plan to draw up a European constitution served as the major attractors. The debate was conducted, of course, in different settings and at several levels. What interests me here, though, is that the public and the academic debate emphasised different aspects of the overall project.

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Copyright © 2007 by German Law Journal GbR 

References

1 See, for example, the contributions to the Special Issue “Unity of the European Constitution: 2nd German-Polish Seminar on the Constitutional of the European Union”, 6 German Law Journal 1433-1760 (2005), Guest Editors: Philipp Dann & Michal Rynkowski, available here: http://www.germanlawjournal.com/pdf/Vol06/pdf_Vol_06_No_11.pdf; see also the observations by the sitting judge responsible for EU Law on the German Federal Constitutional Court, Udo Di Fabio, The European Constitutional Treaty: An Analysis, 5 German Law Journal 945 (2004), available here: http://www.germanlawjournal.com/pdf/Vol05No08/PDF_Vol_05_No_08_945-956_EU_DiFabio.pdf.Google Scholar

2 Johannes Jarlebring, Taking Stock of the European Convention: What Added Value does the Convention bring to the process of treaty revision?, 4 German Law Journal 785 (2003), available here: http://www.germanlawjournal.com/pdf/Vol04No08/PDF_Vol_04_No_08_785-799_european_Jarlebring.pdf; Alexandra Kemmerer, Constitutional Law as a Work of Art: Experts’ Eyes: Judges of the World Examine the Constitution of Europe, 4 German Law Journal 859 (2003), available here: http://www.germanlawjournal.com/pdf/Vol04No08/PDF_Vol_04_No_08_859-862_legalcult_Kemmerer.pdf; for a most recent analysis, see Michal Krzyżanowski & Florian Oberhuber, (Un)Doing Europe: Discourses and Practices of Negotiating the EU Constitution (2007).Google Scholar

3 Dominik Hanf, State and Future of the European Constitution – Improvement or Radical Reform?, 2 German Law Journal No. 15 (15 September 2001), available at: http://www.germanlawjournal.com/article.php?id=89 Google Scholar

4 See Grimm, Dieter, Integration by constitution, 3 International Journal of Constitutional Law 193 (2005); see also Neil Walker, Europe's Constitutional Engagement, 18 Ratio Iuris 387 (2005), at 388, 398 on “generating a deeper sense of political community”.Google Scholar

5 See, e.g., Kumm, Mattias, The Idea of Thick Constitutional Patriotism and Its Implications for the Role of and Structure of European Legal History, 6 German Law Journal 619 (2005), available at: http://www.germanlawjournal.com/pdf/Vol06No02/PDF_Vol_06_No_02_319-355_Art_SI_Kumm.pdf; Peer Zumbansen & Morag Goodwin, American and European Constitutionalism Compared: A Report from the UNIDEM Conference in Göttingen, 23-24 May 2003, 4 German Law Journal 613 (2003), available at: http://www.germanlawjournal.com/pdf/Vol04No06/PDF_Vol_04_No_06_613-627_Legal_Goodwin_Zumbansen.pdf Google Scholar

6 See Neil Walker, Postnational constitutionalism and the problem of translation, in: European Constitutionalism Beyond the State 27 (J.H.H. Weiler & M. Wind eds., 2003).Google Scholar

7 For example, one scholar sensed that even though the European Union lacked constitutional authority it nevertheless tried to submit its operation to the authority of constitutional law. See Maduro, Miguel Poiares, The Importance of Being Called a Constitution: Constitutional authority and the authority of constitutionalism 3 International Journal of Constitutional Law 332 (2005), at 352.Google Scholar

8 See Weiler, J.H.H., A Constitution for Europe? Some of the Hard Choices, 40 Journal of Common Market Studies 555 (2003).Google Scholar

9 Consider, for a moment, in which sense the constitutional treaty, despite all its symbolic rattle, could have not been a constitution. It could have not been in the manner in which an oligarchy does not reach up to the level of an aristocracy, for although all the prerequisites are in place (wealth, an upper class) the decisive orientation towards the public good is missing. No direct comparison can be made with the EU. What mattes, however, is the experience of falling short. The functional remains, the aspirational disappears. The functional predominates and the constitution of power to control one's destiny is no longer in place.Google Scholar

10 Generally attributed to Napoleon Bonaparte with reference to the 1804 Code Civil. See Günter Frankenberg, Comparing Constitutions: ideas, ideals and ideology – toward a layered narrative, 4 International Journal of Constitutional Law 439 (2006), note 2Google Scholar

11 See Weiler, J.H.H., On the Power of the Word: Europe's constitutional iconography 3 International Journal of Constitutional Law 173 (2005), at 181-182.Google Scholar

12 See Christian Joerges & Florian Rödl, ‘The “Social Market Economy” as Europe's Social Model?’ EUI Working Paper Law 2004/8, www.iue.it/PUB/law04-8.pdf.Google Scholar

13 See Walker, supra note 4 at 388.Google Scholar

14 On constitutional tolerance, see Weiler, J.H.H., In defence of the status quo: Europe's constitutional Sonderweg, in: Weiler & Wind eds., supra note 2, at 7-23.Google Scholar

15 For perceptive observations, see Krisch, Nico, Europe's Constitutional Monstrosity, 25 Oxford Journal of Legal Studies 321 (2005), at 332-333.Google Scholar

16 For a critical analysis, see Kumm, Mattias, Constitutionalising Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union 12 European Law Journal 503 (2006).Google Scholar

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