La Constitution Europeenne. Elites, Mobilisations, Votes

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La Constitution Europeenne. Elites, Mobilisations, Votes / " EDITIONS DE L'UNIVERSITE DE BRUXELLES La Constitution , europeenne. Elites, mobilisations, votes EDITE PAR ANTONIN COHEN ET ANTOINE VAUCHEZ lee 1 N 5 T 1 TUT D' E T U 0 E 5 E U R 0 PEE N NES / P EDITIONS DE L'UNIVERSITE DE BRUXELLES La Constitution , europeenne. Elites, mobilisations, votes EDITE PAR ANTONIN COHEN ET ANTOINE VAUCHEZ lee 1 N S T 1 TUT D' E T U 0 E S E U R 0 P E E N NES 1 FOREWORD Integration and Constitutionalism in the European Union Alec STONE SWEET One of the long-running scholarly debates on the evolution of the European Union (EU) concerns how much weight to give specific periods of treaty-making activity, in relation to the overall historical sweep of integration. For the editors of this volume, the 2000-05 period constitutes an episode of seminal importance: EU politics are fundamentally different after the experience of the Constitutional Convention, and the rejection of its work by the French and Dutch electorates. Others, myself included, will view the events of 2005 as the latest in a long series of “crises” that have allegedly afflicted the EU, crises which have sometimes slowed, but have never reversed, the main processes associated with integration. However one understands the importance of the 2000-05 period, most observers would likely agree that it comprised a “constitutional moment”. For the first time, a relatively wide range of actors and groups actively debated their own collective political destiny, as citizens of the European Union. This book brings together an eclectic mix of disciplinary and theoretical perspectives to help readers assess this episode. I will not try to distill a coherent message from the diverse case studies offered. Instead, I will focus attention on three questions raised by this volume. First: what is a constitution? How one understands, theoretically, constitutionalism is a critical first step toward linking the evolution of the European constitution and integration. Second: what is a social field? Contributors to this volume deploy the notion of a social “field” (un champ) quite differently, but none of the authors explicitly defines the term. Third: why should we pay so much attention to the activities of lawyers and judges? In this book, jurists are given pride of place, as actors who, through their training and institutional positioning, have had a distinctive influence on the course of integration. Contributors are, however, rarely explicit about why and how they have chosen to study lawyers. 8 FOREWORD INTEGRATION AND CONSTITUTIONALISM IN THE EUROPEAN UNION 9 European Constitutionalism The rhetoric of constitutionalization – of the Treaty of Rome – has been at the heart of scholarly discourse on legal integration for more than thirty years 1. The discourse implies that a constitution has been constructed out of a treaty. I find the various arguments associated with this rhetoric defensible theoretically, and empirically useful. It would be an artificial, but not impossible 2, exercise to define the term, “constitution”, so as to exclude the Rome Treaty, while including most constitutions of established nation states 3. My preference would be to start with a generic conception of the words, constitution and constitutionalism, and then to situate the EC’s particular experience comparatively, relative to that of other polities. In the 1950s, a core group of diplomats sought to transform the European state system, from one based on military competition and (unstable) balance of power arrangements, to a system based on peace and economic interdependence managed by supranational authority. The move implied a form of constitutionalism. In his classic book of 1950, Constitutional Government and Democracy, C. J. Friedrich put it this way: “The substitution of […] an international organization for an international balancer is, in a sense, merely a specific instance of the general feature of all constitutions; a constitution seeks to balance various governmental powers and organizes a balance of interests […] in the community” 4. I define “constitution”, generically, as a body of meta-norms: the corpus of legal norms that governs how all other legal norms are to be made, applied, and interpreted in a political system 5. By constitutionalism, I mean the commitment, within any given polity, to govern itself according to constitutional rules. Robust, rule-of- law constitutionalism – wherein the exercise of public authority must conform to constitutional norms or be invalid – is rare in the world. Wherever constitutionalism presently exists, it has emerged through a combination of practice and design. The paradigmatic cases have been produced through the gradual consolidation of the power of judges to review the legality of the acts of legislatures and executives. Remarkably, the Community experienced this same process, far more quickly than any other 1 The phrase, the constitutionalization of the Treaty of Rome, refers to the mutation of the EC from an international regime to a quasi-federal polity through the consolidation of the doctrines of direct effect and supremacy. For an overview, see: A. STONE SWEET, The Judicial Construction of Europe, Oxford, Oxford University Press, 2004, chapter 2. 2 See the exchange between T. SCHILLING, “The Autonomy of the Community Legal Order: An Analysis of Possible Foundations”, and J. WEILER and U. R. HALTERN, “The Autonomy of the Community Legal Order: Through the Looking Glass”, Harvard International Law Journal, 37(2), Spring 1996, p. 38 and 411. 3 The EC/EU differs from most federal polities in that it does not have explicit competence to participate in processes of amending its constitution, a competence that rests with the Member States as Contracting Parties. 4 C. J. FRIEDRICH, Constitutional Government and Democracy, Boston, Ginn, 1950, p. 86. 5 A. STONE SWEET, “What is a Supranational Constitution”, Review of Politics, 55, 1994, p. 441-74; A. STONE SWEET, Governing with Judges, Oxford, Oxford University Press, 2000, chapter 1. 8 FOREWORD INTEGRATION AND CONSTITUTIONALISM IN THE EUROPEAN UNION 9 political system. It bears emphasis that, in many countries (e.g., France), rights found in European law are more enforceable by national judiciaries than are rights found in national constitutions. By most measures, rule-of-law constitutionalism in the EU is more highly developed than it is in all but a handful of nation-states outside of North America and Western Europe. EU law scholars have long argued that the treaties constitute a “constitution” 6 that sustains, and is supported by, a quasi-federal legal system 7. The European Court, for its part, implicitly treated the Treaty of Rome as a constitutional text right from the start, and, in 1986, it explicitly referred to the treaties as a “constitutional charter”, or as “the constitution of the Community” 8. Given these facts, one might wonder why Europe needed a Constitutional Convention at all (some observers, including Joseph Weiler and myself, did not think it needed a “formal” constitution 9). In my view, any federal or supranational constitution can be judged successful to the extent that it provides stable, institutional underpinnings for productive social, economic, and political activity, across time and space, given changing circumstances. Against this standard, the Treaty of Rome has been wildly successful, and the legal system has become a kind of central nervous system for the transnational governance of European space 10. Others would take a quite different view of a “constitution” and how it functions. They might emphasize the role constitutions play in fixing collective identities, and in providing the deep structure of political, or regime, legitimacy. They may concede that the Treaty of Rome facilitated integration – that is, the treaty helped transnational activity and supranational governance “take-off” – but, by at least the 1990s, it proved far less successful at constituting, or representing the aspirations of, an emerging, cosmopolitan European People. Moreover, the treaties make for 6 F. MANCINI, “The Making of a Constitution for Europe”, in R. KEOHANE and S. HOFFMANN (eds.), The New European Community, Boulder, West View, 1991; E. STEIN, “Lawyers, Judges, and the Making of a Transnational Constitution”, American Journal of International Law, 75, 1981, p. 1; J. WEILER, “The Transformation of Europe”, Yale Law Journal, 100, 1991, p. 2403. 7 Koen Lenaerts, now a judge on the Court of First Instance, treats the EU as a case of supranational constitutionalism that is, theoretically, indistinguishable from constitutional federalism. Lenaerts defines constitutionalism simply, as “limited government operating under the rule of law”: “Constitutionalism and the Many Faces of Federalism”, American Journal of Comparative Law, 38, 1990, p. 205. 8 ECJ, 23 April 1986, Case 294/83, Parti Ecologiste “Les Verts” v. European Parliament. M.-L. FERNANDEZ ESTEBAN, “La Noción de Constitución Europea en la Jurisprudencia del Tribunal de Justicia de las Comunidas Europeas”, Revista Española de Derecho Constitucional, 14, 1994, p. 241. 9 J. WEILER, “Federalism and Constitutionalism: Europe’s Sonderweg”, in K. NICOLAÏDIS and R. HOWSE (eds.), The Federal Vision: Legitimacy and Levels of Governance in the US and the EU, Oxford, Oxford University Press, 2001. 10 A. STONE SWEET, The Judicial Construction of Europe, op. cit. 10 FOREWORD INTEGRATION AND CONSTITUTIONALISM IN THE EUROPEAN UNION 11 unpleasant reading compared with national counterparts 11. As de Witte has it, national constitutions typically propagate the vision of a Greek temple on the hill, with its structures balanced in harmonious symmetry. But, the European treaty system, however “constitutionalized”, looks like a hoary Gothic cathedral, slapped together haphazardly by different architects, at different times, using different materials, for different purposes 12. Put bluntly, the European Constitution, aesthetically-speaking, is ugly, and Europeans deserve better. These are all fair points. The main issue boils down to how we ought to understand a political system – the EU – which, while not being a nation-state in a classical sense, nonetheless exercises powers normally associated with sovereign states 13.
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