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“Requirements for the Emerging European Constitution” Randi L. Goring I. Introduction: Constitutional Beginnings Pennsylvania State House, May 25th, 1787. With guards stationed at the entrances of the building to keep out both press and public, the proceedings of the Constitutional Convention were opened. Although its stated purpose was to reform the current situation by giving the Continental Congress the power to regulate trade, many delegates understood the potential of the gathering: to give a new Constitution for the people of the thirteen sovereign and independent states of the Articles of Confederation. In the end, those who stayed did just that, and ratification by State conventions following the production of the document legitimized the gamble of those who wrote it. But this is the story of a Constitution of the past, and the story of a Constitution for the European Union is one of the future. The Laeken Declaration acknowledges that the Union must be brought closer to its citizens, who call for a “clear, open, effective, democratically controlled Community approach” to responding to trouble spots in and around Europe and the rest of the world.1 This challenge requires Europe to undergo reform, and presents the extraordinary opportunity for the debate on what, and how much, the Union should accomplish. This paper identifies three major factors linked to the creation of a constitution: purpose, subject and acceptance, and using historical comparisons with other constitutions, in particular with the US Constitution, discusses these factors in relation to a Constitution for Europe. Of course, it must be said at the beginning that the European Union is not trying to imitate the US model, but the founding of the US Constitution is instructive, in that its thirteen independent states voluntarily allocated certain sovereignties onto a newly-constructed higher level of governance. In contrast, the EU is not trying to build a “state” in the 19th century sense of the word, but rather to develop a means of legitimizing another level of governance, on the supra-national scale. And legitimacy is the ultimate challenge of their task. The question is how an institution garners legitimacy, or in other words, acceptance. That is the main subject of this paper, which will try to illuminate the essential ingredients for the emerging European Constitution.

1

Laeken Declaration of 15 December 2001, cited on: http://europa.eu.int/futurum/documents/offtext/doc151201_en.htm.

II. The Aims of a Constitution What is the purpose for writing a constitution? Is it a process in which rational, impartial framers try to contain the passions of future generations, for example, by slowing down the ordinary legislative process with tools such as bicameralism and executive veto?2 Traditionally, indeed, it is said that constitutions are to hinder their subjects from acting on whims: “Constitutions are chains with which men bind themselves in their sane moments that they may not die by a suicidal hand in the day of their frenzy,” said John Potter Stockton.3 Others consider constitutions as for the protection of, for example, human liberties4 .5 There is another way to perceive a constitution: as a medium that creates a Nation. Carl Schmitt suggests that the French are not defined by their constitutions in the way that Americans are by the American Constitution. In other words, the French state was formed before the Revolution, in both institutional and non-governmental ways.6 The “Americans,” though, came into being only through their constitution. Hannah Arendt describes the Americans’ view of their constitution as one of “reverent awe,” that resembles “constitution worship,” and attributes it to the remembrance of the act itself, i.e. of a people deliberately founding a new body politic.7 This “beginning,” and the myths that surround it, gives the public a point to which they can turn for a founding, and they thus fundamentally link the constitution with their nation. Similarly, other scholars denote Americans’ praise of their Constitution as expressions of “quasi-religious faith and patriotic sentiment,” and argue “it is questionable whether such assertions even have the Constitution as their subject - they seem to use the Constitution as a symbol for the nation as a whole.”8 The Constitution can therefore function as the identity of a nation.9 2

John Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U. PA. J. CONST. L. 345, 380 (2000). [Hereinafter cited as Arguing.]

3

John Elster, Forces and Mechanisms in the Constitution-Making Process, 45 DUKE L.J. 364, 382-3 (1995). [Hereinafter cited as Forces.]

4

Jeffrey Seitzer, Carl Schmitt’s Internal Critique of Liberal Constitutionalism: Verfassungslehre as a Response to the Weimar State Crisis, 10 CAN. J.L. & JURIS. 203, 222 (1997).

5

This is evident, for example, in Art.79(3) of the German Basic Law, which forbids amendments that affect its protection of human rights or its basic institutional principles.

6

Seitzer 219.

7

Hannah Arendt, On Revolution (NY: Penguin Books, 1981), 204.

8

Stephen M. Griffen, “Constitutionalism in the United States: From Theory to Politics” in Responding to Imperfection, Sanford Levinson, ed. (Princeton University Press, 1995), 37-8. [Hereinafter cited as Constitutionalism.]

9

But there is a downside to having a constitution on too high a pedestal. From the beginning, James Madison thought amendments would be appropriate only on “certain great and extraordinary occasions” [Stephen M. Griffen, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2137 (1996), quoting Madison in Federalist No. 49, hereinafter cited as Griffen], and indeed constitutional change in America has been almost episodic. (Griffin 2159.) Interestingly, Franklin D. Roosevelt was also reluctant to alter the Constitution during his presidency: he thought it too dangerous, and that the Constitution “was better regarded as a document to be revered than changed in response to changing conditions.” (Id. 2147.) If this is the idea of a constitution, i.e. one that is practically unalterable and yet unresponsive to changing conditions, then perhaps the American understanding of constitutionmaking is more than a single, tangible instance, but rather a process, preserved in an enigmatic and unwritten form. See, e.g. works by Bruce Ackerman.

What, then, would be the purpose of a Constitution for the EU? The reasons behind this undertaking are mainly practical. A European Constitution would reform the current structure of government in the EU and make it more transparent10 to its citizens. It would also improve efficiency. The members involved in the Common Foreign and Security Policy (CFSP) already recognize the power of having all the nations speak with one voice. Tighter coordination would better enable the Union to achieve its goals, whether they be within its borders or on a global scale. More importantly, however, the drafting of a European constitution would open up the window of debate. Europe doesn’t just need to define its goals and its responsibilities to its public, but the public needs to evaluate its expectations from Europe. If this unification of Europe is to succeed, then it requires stronger support from the people of Europe, which they are not likely to lend without a greater say in where the Union is heading. After all, integration is to them not a value in itself. Thus, efficiency is needed to convince the citizens of the advantages of such a union; transparency, on the other hand, will persuade them that their will is taken seriously. Since the legitimacy of the EU rests on the support of its citizens, both goals are indispensable, and the ensuing constitutional discussion will intensify both the public interest in and the legitimacy of further European integration.

III. The Subject of the Constitution The French Revolution of 1789 began with the people declaring that they were the nation, the representatives of the third estate, and that they wouldn’t disband until they had erected a constitution. In this moment of declaring themselves the representatives of the nation, they created the nation itself – they were simultaneously the “Subject and Object” of the pouvoir constitué.11 But who were these People that made up the nation? The French defined themselves as sharing a common territory and a common will for political unity. The point is not that they existed as a people prior to the constitution, since their nation became manifest in the very moment of taking the political action of giving the constitution. This ideology celebrated the will of the people as the source of the nation.12 Contrast this with the German constitutional debates of the 1880s, where there was a tendency to link nation with language, ethnicity, historical and spiritual unity. The French model eluded the Germans, whose history of being split into different principalities set the stage for a different 10 This is important for acceptance, because people fear what they don’t understand. A more transparent system would alleviate the perception of some that the Union is threatening their identity. 11 Hasso Hofmann, “Von der Staatssoziologie zu einer Soziologie der Verfassung?” Juristen Zeitung, 11.1999. 12 See, i.e. Hofmann 1070.

version of sovereignty.13 Thus, the start of an ideological debate of whether a Volk is or isn’t necessary to have a nation was determined, a debate which overwhelms discussion of constitution-making to this day. The question of Volk, however, was of no interest to the American forerunners of Abbé Siéyès, and they made no distinction between pouvoir constituant and pouvoir constitué.14 This theme is picked up in a positive light by Arendt, who describes how the Founders played up their diversity, and how for them the word ‘people’ retained the meaning of manyness, “of the endless variety of a multitude whose majesty resided in its very plurality.”15 Indeed, although the American Anti-Federalists turned to Montesquieu’s critique that an extensive territory composed of varying climates and people could never be a single republic state, Madison insisted that the vastness of the country would itself be a strong argument for a republic, since it would counterbalance various the political interest groups vying for power. He saw diversity as a given, acknowledging in Federalist 10, “as long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.” And were the pre-Constitution Americans already a Volk? Not really. They shared a common language and the majority hailed from England, but they also had a strong notion of state patriotism and a distrust of the other states (even without wars on the grand scale present in European history, this is not so surprising when one considers, for example, that Connecticut was founded when Massachusetts banned the religious heretic Roger Sherman). In fact, until 1787, Marylanders still called their state “the nation.”16

1. A Special Type of Sovereignty In their efforts to produce a new unity among the states, connected until that point only by what George Washington referred to as a “rope of sand,” the Americans created a new interpretation of “sovereignty.” Using an analogy between constitutions and corporate charters, the American founding fathers redefined “sovereignty” to provide for a government that could be strictly bounded by its “charter” (i.e. fulfilling the “American conception of a constitution as a fence around, and not merely the frame of, government”), and for its boundary to be maintained by judges using agency law.17 This was a sharp break from the British concept of complete sovereignty (i.e. parliamentary sovereignty) with “no 13 Id. 14 Schmitt comments on the American constitution-making with, “Das Volk gibt sich selbt eine Verfassung, ohne daß der allgemeine...”Covenant” von jedem anderen Akt der Konstituierung einer neuen politischen Einheit und von dem Akt der freien politischen Entscheidung über die eigene Existenzform unterschieden wurde.” Carl Schmitt, Verfassungslehre (München: Duncker & Humblot, 1928), 78-9. 15 Arendt 93. 16 Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, FN 100. [Hereinafter cited as Sovereignty.] 17 Id. 1433-4.

gradations”18 , to one of a government of limited powers, where within the limitations of their charters, governments could be sovereign, but that this sovereignty was at the same time confined by the terms of its delegation itself.19 Such a development took place with “considerable noise” in the great constitutional debates between 1763 and 1789.20 Thus the ultimate sovereignty resided in the People (long a Lockean concept), while at the same time relocating sovereignty from the Government, who became “servants” of the People, but were not the People themselves.21 But how could the People truly be sovereign without being able to run the day-to-day affairs of their government, how could the government command obedience, and would this not create a imperium in imperio? Once again, agency principles dictated that the People could act through agents, who could then compel obedience in the name of their principal, but who lacked authority to go beyond the scope of their agency.22 And thus, the Americans established a government of limited powers, constituted by the People.

2. Federalism and Ultimate Power with the People The people were the sovereign, then, but the federalists and the anti-federalists still had two different “Peoples” in mind: states rightists thought the People of each state were sovereign, and that the Constitution was not a sharp break with the Articles of Confederation, but that it simply clarified that sovereignty resided in state Peoples, not in state legislatures, as the Articles could have implied. Nationalists, though, thought the People of the US as a whole were sovereign.23 Although this was a debate not finally settled until the Civil War24 , a closer look at the role of the States versus that of the nation, in a sense the centerpiece of American federalism, will illustrate that the very tension can be instrumental in retaining the ultimate power with the people. Thus, was one “people” more sovereign than the other? Perhaps the most persuasive argument that the National Volk dominated the State Volk comes through an examination of Article V25 of the US Constitution, which makes clear that a state people can be bound by a federal amendment

18 Id. 1431, quoting Samuel Johnson. 19 Id. 1434-5. 20 Id. 1436-7. 21 Id. 1435. 22 Id. 1436. 23 Id. 1452. 24 See Id. 1455-8 for a fuller discussion. 25 “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislature of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that….no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” (emphasis added) Article V.

even if that state people in a state convention explicitly rejects the amendment.26 Compare Article VII, which requires nine states for the ratification of the constitution, with Article V, which provides that ratification by conventions of three-fourths of the states will amend the Constitution in a way that binds non-ratifying States. Thus, Article VII recognizes the pre-existing sovereign right of the non-constitution-ratifying States to secede, while Article V abolishes that sovereign right for those that join the Union, and hence become part of the larger common sovereignty.27 One scholar argues that in fact the purpose of Article V was to prevent secession: “The specter of imminent secession haunted their every thought.”28 And yet, the States continue to play a role in the identities of their citizens.29 In addition, the Tenth Amendment preserves the independent lawmaking authority of state governments, whenever a law is not inconsistent with the Constitution or with federal laws. Thus, state governments maintain a law-making authority in a power derived from the sovereign People.30 In fact, the 10th Amendment suggests that the very division of delegated sovereign powers to two different agents, i.e. to the federal government and to the states, promotes the ultimate sovereignty of the people.31 An interesting example of federalist principles protecting first and foremost the people can be illustrated by a look at the Eleventh Amendment. Adopted to overrule the Supreme Court’s judgment in the 1792 Chisholm v. Georgia case, where the court allowed the executor of a South Carolina merchant to bring an assumpsit action in the Supreme Court against the State of Georgia for breach of a war supplies contract, its language reads: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Does this then give the states “sovereign” immunity over the American People? No. Firstly, it would not oust jurisdiction that was independently grounded, i.e. in federal question or admiralty cases32 , but just restricts the Article III jurisdictional grants, i.e. for diverse party jurisdiction.33 Hence this amendment doesn’t grant state sovereign immunity, it just doesn’t make the governments suable for anything and eve-

26 Akhil Reed Amar, Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457, 485, 507 (1994). [Hereinafter cited as Consent.] The implications for this amendment are truly great: one can imagine that if the 38 least populous states ratified an amendment to the Constitution, the amendment would be valid, even if that’s less than 50% of the population. Elai Katz, 29 Colum. J.L. & SOC. PROBS. 251, FN 28 (1996). 27 Sovereignty 1462. 28 Examples given in Sovereignty FN 162. 29 David R. Dow, When Words Mean What We Believe They Say: The Case of Article V, 76 IOWA L. REV. 1, 60 (1990). 30 Sovereignty 1466. 31 Id. 1492 and following. 32 Id. 1475. 33 Id. 1481.

rything, as the Court’s Chishold decision threatened to do, and which would be dangerous.34 In other words, the 11th Amendment bolsters certain powers of the States. This reasoning harks back to that of Alexander Hamilton in Federalist no.28, “Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.”35 Thus, the people can ensure that their rights are best respected by actually using the states as a counterweight to federal power, and vice versa.

a) The States Play their Role The importance of the States is also reflected in the fact that the delegates who drafted the US Constitution were representing their respective States. The States had diverse interests and concerns, and only the so-called “Great Compromise” could resolve differences between for example, large and small states and between slave-holding and nonslave-holding states. At the same time, the delegates of a state voted as a single bloc, but that did not mean that the delegates of a single state were of a single politic; it has been calculated that almost three dozen political factions were represented at the Convention.36 Additionally, researchers report that the votes cast correlated with both the economic interests of the Framers and with those of their constituents.37 Therefore, the US delegates exemplify that diverse backgrounds and motivations can still come together to produce one unifying document. Yet although the Records of the Federal Convention show that “We the People” would have been “We the Peoples” if only the ratifying states were known in advance, several of the founding fathers used the new phrase to highlight instead the unity of the nation and its mandate from the people. As Hamilton writes in Federalist 48 “WE THE PEOPLE of the United States... Here is a [clear] recognition of popular rights...”38

b) The Case of the EU As the EU stands now, it already has a public authority beyond the nation state level, which in turn intensifies the need for a more demo-

34 Id. 1490. 35 Quoted in Sovereignty 1494. 36 Arguing 363. 37 See, e.g. Id. 388. 38 P.119 of Federalist 48, quoted in Consent 481. See also James Wilson and others.

cratic, transparent system of governance to correspond to this structure.39 Of course, national parliaments are an important part of the legitimization process of this multi-level power system. That is, the democratic legitimacy comes up from the people through their respective nation into the greater institution of a European government, and then returns down to the national level again in the manner of policies that effect the citizens through the workings of their national parliaments.40 Thus, the importance of smaller states and sub-states should not be overlooked, as they provide the access point between the people and their government.41 On a more character-related note, the individual states of the EU have their respective personalities, but the average citizen is at a loss to identify the “Face of Europe.” A survey revels that less than 10% of Europeans know Romano Prodi’s name, and of those who correctly responded, most live in Italy.42 Europe, in other words, has no George Washington figure. The changes to result from the Treaty of Nice, however, will significantly strengthen the role of the President of the European Commission, and could thus be the start of a Mr. or Ms. Europe, which would help the people better identify with the EU. This is one point, though, that should be recognized. Despite the lessons to be learned from the federalist experiment in the early founding of the United States, Europe does not want to be a federation or a confederation. Europe already has a name: a Union. And it is a Union constituting States and Peoples. This Union, however, does need to better coordinate its role as a governing body that is involved with specific concerns on the proper level (for example, on matters of the environment and terrorism – problems that do not restrict themselves to borders). Europe needs neither another loosely unified international organization like the United Nations, nor does it need further intervention “in matters by their nature better left to Member States’ and regions’ elected representatives.”43 To achieve this balance, then, Europe needs to determine its purpose and its subject, and adjust itself accordingly, a task it can achieve with an appropriate constitution. After all, as Peter Häberle points out, “there is only that much State, as has been constituted.”44

39 Ingolf Pernice, Franz C. Mayer and Stephan Wernicke, “Renewing the European Social Contract: The Challenge of Institutional Reform and Enlargement in the Light of Multilevel Constitutionalism.” WHI-Paper, 11.2001, 2. (Http://www.whi-berlin.de/) [Hereinafter cited as Multilevel.] 40 Ingolf Pernice, “The Role of National Parliaments in the European Union.” WHI-Paper, 5.2001, 12. (Http://www.whi-berlin.de/) [Hereinafter cited as Role.] 41 Multilevel 2. 42 24.6.2002 Speech by Alain Lamassoure, European Parliament Representative to the European Convention. 43 Laeken Declaration. 44 Ingolf Pernice, “Der Beitrag Walter Hallsteins zur Zukunft Europas: Begründung und Konsolidierung der Europäischen Gemeinschaft als Rechtsgemeinschaft,” WHI-Paper, 9.2001. [See http://www.whiberlin.de/]

3. Summary Maybe the question, “did the US Constitution create the Volk?” would be better phrased, “did the Constitution create a national Volk in addition to the State Volk?” One could look to Madison, who would accept that neither the people of the state nor the people of the nation were wholly sovereign, but rather that Article V embodied the precise division.45 John Austin also recognized “joint sovereignty”46 , as well did Alexander Hamilton in Federalist 85, who acknowledged residual sovereignty retained by the states, arguing it would make national government more responsible.47 Thus, as one scholar proposes, the states were actually the “central components of the constitutional concept of sovereignty.”48 If indeed the founders could simultaneously conceptualize both a national and a state Volk49 , this has wider implications for other States looking to create constitutions. As in the case of 18th Century America, European sovereignty is in the hands of the people scattered amongst various states, and therefore does not exist as one, united “Volk.” This does not mean, however, that legitimacy would be weakened because it is exerted by “peoples,” rather they just represent a more organized level of the “people.” Indeed, the “constitution-making power” could legitimize itself by its very establishment, in whatever form it chooses, as in a “normative power of the factual,” as described by Georg Jellinek.50 Therefore the subject of a European Constitution could well be the People of the Member States, exerting their sovereignty as people to form a supranational entity, and in the process creating a new identity as a unified People.

IV. LEGITIMACY Political legitimacy has been described as the belief amongst the people themselves that they have a moral obligation to follow the rules and regulations of their regime.51 Schmitt locates the legitimacy of this democratic model as when the power is that of the people52 , whereas Arendt emphasizes the importance of form: the authority of the US Constitution arose from the way and manner in which the delegates of power organized the process at the drafting and ratifying conventions. That is, 45 Consent 507. 46 Dow 57. 47 Id. 59. 48 Id. 57. 49 And the conclusion is mixed, see Consent 507. 50 Hans Heinrich Rupp, “Europäische “Verfassung” und demokratische Legitimation,” Archiv des öffentlichen Rechts. 120 Band, 1995, 269-275, 272-3. 51 Vicki C. Jackson and Mark Tushnet, Comparative Constitutional Law (NY: Foundation Press, 1999) 253. 52 “[D]ie demokratsche Legitimität...beruht auf dem Gedanken, daß der Staat die politische Einheit eines Volkes ist.” (Schmitt 90)

this principle of “mutual promise and common deliberation” is for Arendt the foundation of later legal authority.53 In another analysis, the “American and French Revolutions [are said to] form the epicenter of what we today consider modern liberal constitutionalism,” in that they both contain a core liberal commitment to limited government in service of individual liberty, although the definition of individual liberty changes over time54 .55 This is thus the argument that legitimacy is tightly connected with the protection of basic rights, or an “effect” that attributes legitimacy.56 Legitimacy also relates to the relevance of the text, to how it reflects the understanding of the people. When congratulated after the Philadelphia convention on the production of a constitutional text largely attributed to his drafting skills, Gouverneur Morris replied its worth “depends on how it is interpreted.”57 Bruce Ackerman, though, sees the legitimacy of the US Constitution as related to time and endurance. He writes, “rather than the product of a magic moment at the ballot box, the Constitution gained its legitimacy from a complex dialogue between citizens and their representatives -in both established and transformative institutions- extending over months and years. It is only by sustaining public support in their long march through a broad variety of institutions, defeating their opponents time and again, that the Federalists earned their higher lawmaking authority.”58 Finally, Hans Heinrich Rupp points out that the legitimacy of a constitution always comes back to its relation to “the people,” for “…how can one esteem a constitution as democratic, if it does not stem from the Volk?”59 Thus, legitimacy is the product of numerous factors: organization, protection of human rights, relevance, the test of time, and political principles. How, then, can the European Constitution best earn its legitimacy? This paper takes for granted that its drafters will try to meet all of the above-mentioned aspects for an enduring constitution, and rather focuses on the actual public acceptance of the to-be-proposed document. Clearly in regard to this issue, ratification must be the leading actor.

53 See Arendt 204 and following; Andrew Arato, International Conference on Comparative Constitutional Law: Contribution: Forms of Constitution Making and Theories of Democracy, 17 CARDOZO L. REV. 191, 209-10 (1995). 54 Seitzer 222. 55 The German Basic Law reflects this influence as well, with its core commitment to human dignity. See Supra Note 5. 56 Seitzer 222. 57 Murphy in Jackson, 254. 58 Bruce Ackerman and Neal Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. 475, 566-7 (1995). [Hereinafter cited as Unconventional.] 59 Rupp 271.

1. Ratification The view that the legitimacy of a constitution requires popular ratification60 survived as part of the revolutionary tradition of the French Revolution, rather than Siéyès’ view that only an assembly exercising “general will” is necessary.61 Across the ocean in America as well, Madison believed the Constitution and the Constitutional Convention had no authority without ratification. He wrote in Federalist 40: “[The proposed Constitution] is to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities.”62 But why is ratification important? For one thing, constitutions seem to require second scrutiny, because they regulate the most basic aspects of political life, and because they are deliberately constructed to be difficult to change, i.e. requiring supermajorities for Amendments.63 Ratification also holds the drafters in check (not wanting to be overruled, they might anticipate and feel constrained by possible censure).64 This shadow of censure was apparent at the Federal Convention: before laying down a ratification process, the delegates assumed their work would be ratified by state legislatures, and so some tried to tailor it to be acceptable to the state legislatures.65 Finally, this represents an act of good faith, and the chance for public discourse after viewing it in its entirety (particularly when there is still the option to change the proposal).66 Another question involves the relevant “ratify-er” of the Consitution: is it the “national People” or the “State People”? Some scholars argue that the US Constitution derived the sovereignty of one American People through its ratification clause.67 Before ratification, the People of each state were sovereign, and thus could not be bound by the Constitution. Therefore, Article VII confirmed the pre-existing sovereignty of the People of each state by proclaiming that the Constitution would go into effect only between the nine or more states ratifying.68 60 Adopted by, among others, Carl Schmitt. (Schmitt 90) 61 Arato 203. 62 See Consent FN 157; Arato FN 43. 63 Arguing 369. 64 Id. 65 The Constitution was eventually ratified after the Confederation Congress passed the proposed Constitution on to the States, and the States elected delegates to ratifying conventions, who approved the Constitution in more than nine states. This process could have broken down at any stage if enough citizens were convinced that the process was illegal. Arguing 370. 66 Arato 227. 67 Sovereignty 1459. 68 Id. 1460. Here is where we should also note Arendt’s argument that the founders wanted to preserve the States’ power, since the people had already been organized into self-governing states that already established the People as the pouvoir constituant, and that the national constitution only “repeated...on a national scale what had been done by the colonies themselves when they constituted their state governments.” Had the Federal Convention chosen to abolish state power, she argues, they would have lost their pouvoir constituant, and be thrown into a “state of nature” like the French. (Arendt 165) Therefore, the ratifying people of the US Constitution is twofold: they are the national people that has been instantaneously created by their ratification of the Constitution, and they are also another expression of People that already existed at the State level, just elevated onto a new level.

In the case of post-war Germany, however, the Basic Law was ratified by the Länderparlaments in 1949, not directly through the public or through their representative conventions, but does this mean that the Volk were not included? That the Basic Law was solely an act of government? Not necessarily, since one could argue that when a constitution is made through a parliament, which is democratically elected and more open to democratic scrutiny than, say, the executive branch, it is an act of the public69 .70 This means of ratification is probably not as satisfying for the People, however. A closer examination of the US example will illustrate why that could be the case. The Federalist ratifying convention in America has been called an exercise in “quasi-direct democracy”. “Direct”, because it was focused on a particular, concrete proposal, but “quasi-direct” because the people did not cast ballots on the proposal, but for delegates who would deliberate on it further.71 Yet the convention delegates still apparently had a clear sense of a “mandate” to go in a particular direction.72 Some say the ratification procedures in the US have a mixed record: Property requirements did not disqualify a substantial percentage of white male votes from casting a ballot, and a few states even suspended all property requirements for this special election. On the other hand, participation rates were “unspectacular”: in only three states did voter turnout seem higher than the norm, and in four lower! Also, some elections were held in the dead of winter, so lacked the best turnout, and of course, women and slaves were denied voting.73 The public did, however, play a strong role in the ongoing debates, in town halls, pamphlets, and papers. They were passionate, evidenced by when the Federalist-dominated Pennsylvania Assembly lacked a quorum on Sept. 29 1787 to call a state ratifying convention, a Philadelphia mob, in order to provide the necessary numbers, dragged two anti-Federalist members from their lodgings through the streets to the State House, where the bedraggled representatives were forced to stay while the assembly voted. And it is this very debate that is important: the citizens should be excited about their future and the future of the institutions that govern them. The ratification of the European Constitution, particularly by referendum, would thus offer the opportunity for discussion that the Union and the people need. 69 Arato 197. 70 This issue of legitimacy arose again during reunification, questioning whether the Basic Law should be ratified in a popular election, and thus gaining it a popular legitimacy it supposedly lacked. However, a parliamentary commission on constitutional revision rejected this idea of a popular referendum, accepting the prevailing view among constitutional scholars that the 12 national elections in 40 years represented overwhelming popular support for the existing constitutional order and established the Basic Law’s legitimacy. The GDR’s voluntary joining of the Federal Republic under the Basic Law, i.e. giving its consent, and the subsequent confirmation in a March 18, 1990 election, was acknowledged as evidence of its acceptance among East Germans as well. Donald P. Kommers, Constitutional Jurisprudence of the Federal Republic of Germany (Durham: Duke University Press, 1997) 30-1. 71 Unconventional 562-3. 72 Id. 563. 73 Id. 563-6.

a) Ratification must be Binding If individuals enter into [i.e. form through social compact] a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of [pre-existing] political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government...74 It is important that the future European Constitution be ratified by its populace, even if some states were to reject it, which is highly possible. The Union should still go forward, however. In the US, for example, eleven of the original thirteen states agreed to go along with the new constitution by the summer of 1788, and North Carolina, who initially voted against the constitution, and Rhode Island had to come later. If further European integration is successful, the others will join, but the main point is that it cannot remain forever in its status quo situation, with gaps in its systems of transparency and efficiency, and even, in some cases, legitimacy. The EU needs to “keep the motor running,” so to speak, to challenge its citizens to accept a supranational identity and to convince them to support its goals. Ratification, especially referendums, functions as a catalyst for Bewußtsein and motivates the people. Thus, the debate will be the most important: in the case of the Philadelphia Convention, both the Virginia and the New Jersey proposals for a constitution were rejected (one was too centralized and one was too decentralized), and the delegates eventually decided on the “right” constitution for their land. Without such discussion, however, it would be questionable whether the public would have supported the ratification as an expression of a conscientious people, and the US Constitution might have lost the impetus of an interested public. Therefore, the debate itself is of great significance for the emerging European Constitution.

V. Conclusion The current powers of the EU resemble those of the Articles of Confederation. These were, among others, the authority to act to resolve disputes between states, and the power to regulate the value of the money. In fact, EU is in an even more advanced position, since it speaks with one voice on foreign concerns, coins its money, sets tariffs, and it already allows freedom of movement and the reciprocal recognition of civil rights in each member state (the US Constitution had to specifically state this

74 Sovereignty 1461, quoting Alexander Hamilton in the Federalist No.33.

in Article IV). Additionally, around 80% of economic and social legislation in the Member States of the EU, and probably even greater percentage of environmental legislation, are already determined by the directives of the European institutions.75 And like the Articles, some would argue that the member states of the EU are no longer able to meet certain challenges independently. This includes, for example, issues of security, climate change, international markets and terrorism. At the same time, national policies have an immediate impact on other states.76 Although European sovereignty exists currently in the Peoples of its member states and does not function as one, united “Volk,” this does not mean that the People could not exert their sovereignty on a supranational level. Firstly, an examination of the US Constitution helps to disbunk the myths that a Volk is a necessary precursor of a constitution. In addition, the “divided loyalties” (or maybe it’s time to call them “multiple identities”) of the newly minted US Citizens after the Constitution was ratified are an interesting approach to the concept of sovereignty. Not only did some of the founders recognize their dual identity as Stateand Federal citizens, but some even thought such multiple identities would work to protect the people themselves, who could get the best of both worlds while playing each identity off against the other in an effort to procure their full rights.77 Ingolf Pernice argues that Europeans already have created multiple identities to correlate to different levels of government78 - they now need to formally correlate the government to their identities. Europe already acknowledges that it must make its next move, and the prospect of the thirteen candidate countries waiting to join its Union should only hasten its efforts to better integrate and coordinate its current members. But Europe cannot go forward without the support of its People, who themselves have to evaluate their expectations for a supranational entity. The people want more efficiency, but they also want assurances that they can maintain their national personalities. These are problems, however, that can be addressed by a constitution that involves the public in a discussion over their needs and their identity and how to realize a balance between conflicts in sovereignty. When the debate is over, the immediate supporters will ratify and legitimize the new constitution, and the other nations will have to follow later, if at all. The public, though, has to determine the right shade of integration and the right equilibrium between nation-state and supra-nation. And only then can Europe realize its unity, as a unity of peoples and states, and as a unity without conformity. 75 Role 5. 76 Id. 9. 77 See Federalist No. 85. 78 Role 10.

Constitution of the EU – the need or a dream? Requirements for an Emerging European Constitution Mario Rosentau Introduction The idea of a United Europe is starting to bear fruit. For the first time in two thousand years, this is taking place without wars and conquest plans. And unlike the Roman Empire that ruled a large part of Europe two thousand years ago, this union does not pursue or at least need not pursue a linguistic, cultural nor even a political unification. Europe is about to become a multinational union of nation states. This is not a new society founded by new settlers on virgin lands as in the United States of America or the continuation and modification of old traditions by new settlers as in Latin American societies. The European Union is even less similar to the unitary empires known from history, which were built as a result of the conquest of smaller neighbours by their larger and more powerful neighbour, just as it bears no resemblance to overseas empires established under the suppression of a militarily and economically superior mother country and by elitist colonisation that secured supremacy. However, the EU has long ago stopped to be a mere international organisation or economic community. The European Union is a new phenomenon in world history. It is the first time that such a large number of countries have joined as a union exercising common state authority. And these are not only some countries among all the countries known throughout history but they all are nation states based on the rule of law, practicing representative democracy. Unlike the orders of an autocratic head of state, which are addressed to specific individuals for specific occasions, a state based on the rule of law is founded on general and abstract laws. A state based on the rule of law has also been called a constitutional state. If constitutional states form a union that exercises state authority — even if to a limited extent but still state authority — we are entitled to ask to what extent the feature of the member states to be “constitutional” transfers to their union. Or in other words: is a nonconstitutional EU thinkable at all? The “grand goals” of Europe’s unification have been set out in several EU declarations and treaties. Yet it is more important that these noble goals be included in the legal forms of the Union as functions and joint or shared responsibilities. The actual objectives of the unification of Europe derive both from the historical experience interpreted from the development level of modern thought and the future predictions founded thereon. We have not yet reached that far as not to recall them in one or another manner: to avoid wars in Europe and with Europe participat-

ing, to protect an individual against violence and injustice, to increase the freedom of movement, communication and activity of people, to ensure the human rights and equal opportunities for happy life for all the inhabitants of the continent, to ensure a stable economic development in the changing global economic environment, to eliminate unreasonable barriers to trade, to make a historically justified and valuable contribution to the political, economic and cultural development of the globally integrating world, to increasingly focus on and contribute to all the spheres of human activity and on all levels from the individual to the global to the preservation of the natural environment of the Earth. One essay cannot, due to its limited volume and goals, present such a bulky domain as a comprehensive reasoned catalogue of the requirements to the constitutional arrangement of EU. In addition to legal requirements, such a catalogue should contain at least social, political and ethical requirements. And besides the actual, already formulated and reasoned requirements, it should also include hypothetical future requirements — the legal formalisation of the unification of Europe is not a summary of political achievements as it has been the case in the establishment of new states but it is a future-oriented process, open to opportunities that have already been discovered or are to be discovered yet. The catalogue of constitutional requirements is essential for the operations Convention on the Future of Europe and all the other advisory, deciding and constituent assemblies. This essay makes an attempt to draft only some features of such requirements. As by its pursuits, the essay falls within the domain of legal philosophy, it pays less attention to facts and more attention to plausibility and feasibility. However, just as a social fact differs from a fact of nature, social probability or feasibility also differs from physical probability.1 The game of social opportunities is a team game in which the knowledge and plausible assumptions of the participants, their good will and reasonable choices play a significant role as well as their mistakes and implausible suspicions, evil self-interest and unreasonably impulsive, irrational acts. Therefore, the essay attempts to present a scale of some development options and choices rather than to forecast specific developments and choices to be made. If successful, such scale may serve as a philosophical meta-requirement in respect of legal and social and political activities constituting a subject in constitutional law, while the unification of Europe is a subject in constitutional law from the legal aspect. If unsuccessful, for example, when disregarding factual and counterfactual states of affairs in the already unifying Europe, such discussion becomes a mere speculation.

1

In discussions about the nature of the social fact (SF), it has been characterised by the following features: SF is a manner of action, restricting or pressing an individual from outside; SF is an objective phenomenon, characteristic of a social group; SF is associated with common knowledge; SF is related to or coincides with the phenomenon of plural subject-hood: just as individuals, a plural subject may also have goals, beliefs, inclinations and principles of activity.

I. Basic notion Let us, first of all, explain the basic notion and term: what is a constitution? Although the notion of the constitution could be subject to long arguments, in the minimal case, a rather clear distinction can be made on the basis of the difference in the extension of the concept. The constitution (1) is a conceptual and formal structure of state organisation, plus the legal sources of its organisation, which serves as the bases for the legal status of forms and concepts — their institutionalisation. Legal sources may vary considerably: the written constitution applicable in the state, or a number of constitutional legal acts and their competent interpretation decisions, or custom and the sovereign’s will. The constitution (1) characterises any state, i.e. the constitution in this sense is an attribute to the state or the necessary condition of existence: it is the institutional and functional arrangement of the state. Therefore, we will speak about the constitution (1) henceforward as about constitutional arrangement. But presuming that the constitutional arrangement is not a sufficient condition of the existence of the state, we avoid the identification of the “constitutional arrangement” as well as the “constitutional subjectness” with the “state organisation” characteristic of the state. The constitution (2) is a comprehensive textual source of the constitutional law of the state — usually a singular constitution, less often a body of constitutional acts — fundamental law. The constitution (2) is characteristic of the majority of the contemporary states; however, it is not a necessary condition of the existence of the state. The constitution (2) thus signifies constitutional legal formulation, a legally valid and generally understandable written form, which can be regarded as a source of law irrespective of any non-linguistic interpretations, comments and implementation precedents. In the sense of the constitution (2), we will henceforward simply speak about constitution. We have to note an important reservation: if a body of constitutional acts does not serve as a comprehensive basis for legal interpretation and reasoning, i.e. the latter is supplemented by custom, judgments and other legal measures upon the establishment of the constitutional arrangement, the examined body of laws is not sufficient for the existence of a formulated constitution.2 The existence or absence of a constitution serves as a criterion for determining the legal basis of the constitutional arrangement: unformulated constitutional laws and formulated constitutional laws can be observed throughout history, while the historical fact is that the development has progressed from the former to the latter. The substance of both consists in regulatory meaningful propositions, but the formulated proposition is epistemologically more valued — it has been recorded in an unchange-

2

However, a singular formulated constitution may also prove to be “empty law” in a large or important part: such was, above all, the constitution of the former Soviet Union.

able form and is unchangeably communicable. We may assert that formulated constitutional law (and generally formulated law3 in itself) is a necessary condition of a state based on the rule of law (or more precisely – of the concept of such state). Although the level of formulation of constitutional law belongs to the sphere of fuzzy logic (just as the question when trees become a wood), the existence of a constitution as basic law in a modern state is a clear and simple social fact. Back to Europe: Does the EU have a constitution? (The question naturally concerns a collection of constitutional legislation as no singular constitution is available.) For several reasons, it may be said that it does not. I will here present only one argument to support my assertion: the paradigm of the contemporary constitution provides for, inter alia, the existence of the catalogue of fundamental rights and the definitions of the means for protecting them. As the EU Charter of Fundamental Rights, adopted in Nice, has not been included in the system of EU Treaties, the sources of EU constitutional law lack one of the most important elements. Does the EU have formulated constitutional law? If we are able to identify (and I believe that we are) that the institutions of the EU perform constitutional functions in accordance with some textual sources of law, the EU has formulated constitutional law. Then we only have to ask to what extent, in what volume and how correctly the law (or the rules contained therein) have been formulated. Does the EU have a constitutional arrangement? Again, insofar as we identify that the EU has institutionalised forms and concepts, values, offices and constitutional competencies, the EU also has a constitutional arrangement. Here it will suffice if we point out only one institution as a positive argument — this is the European Parliament. Already the existence and functioning of the European Parliament (but there are many participants) transforms the EU from the status of an international organisation into the status of a subject in constitutional law. However, I would like to note in advance that in the case of the EU, a subject in constitutional law does not mean a state (at least not in the classical sense). In order to characterise the current status of the EU as a subject of law, people have spoken about a “hidden” constitution or constitution in the pragmatic sense. I hope that I have been able to bring some clarity into these ambiguous notions. Thus, the current institutional system of the EU (the legal bases of the institutional forms of the EU, plus the actual performance of the institutions) can be regarded as a constitutional arrangement that contains 3

Thus, formulated law is a text, formulated to some reasonable extent and enacted as a source of law (statute, precedent, etc.), which creates a recognisable form of law. In a very simplified form, this could be one, namely the epistemological, approach to law.

elements of constitutional law. And the applicable EU Treaties can be regarded as partly formulated constitutional law. Nevertheless, the constitutional arrangement of the EU is legally founded neither on a singular nor a compositional constitution. We obtain two fundamental questions: 1) do we, Europeans, need more than we already have in the form of the EU in order to manage ourselves and the world, i.e. the constitutional arrangement of Europe that has been built somewhat differently and functions differently? 2) Does the current constitutional arrangement of Europe or will its future arrangement require a fully formulated singular constitution as a legal basis and source of law or are there any other more suitable forms?

1. Need for law By the above-drafted approach to the constitution and constitutional arrangement I made an attempt to distance from the so-called legal fundamentalism. I refer to the law-centred frame of reference of the exploration of legal phenomena, including the state and the legal system, as fundamental, which considers law as self-sufficient: the bases of law are contained in law itself, allowing for the self-reflection of law; the state and law are inseparably connected; law and notions of law are primary in the space of law with regard to other social notions (honour, promise, etc.); social facts are relevant only as legal facts; the artefactual nature of law is not important when characterising law; the question about what law should be like has to be kept apart from the question about what law is like. The legal-fundamentalist position need not be evident from the specific assertions or formulations of jurists or practitioners, i.e. the context of treatment is not necessarily explicit. Such context logically manifests itself in unavoidable conclusions (implicitly) or in the hidden assumptions of reasoning and decisions. In a law-centred frame of reference, the EU has had a constitution — not a mere constitutional arrangement but also an unwritten constitution that can, in principle, be worded and formulated — from the moment when supranational institutions have been established and functioning in the EU. This means that the constitutional arrangement is not a necessary condition of the existence of the state, but the existence of the state is a sufficient condition of the existence of the constitution. The fundamentalism of the law-centred frame of reference is yet more evident in the contrary, constituting impact: the formulation and enactment of a written constitution is a sufficient instrument for the establishment and functioning of state institutions. Or in the EU context: we will formulate, adopt and enact a singular constitution and we will have such a hyper-state Europe as we desire and can create. (And if it fails, we will claim that the persons involved were unable to do it properly.) The fundamentalist approach to law contrasts with the frame of reference of law studies, which proceeds from social relations in need of law and deserving law. In this frame of reference, law is preceded by a need for law,

due to which the applicable law is regarded as a response to that need; and the social fact deserving or meriting law is seen as the basis for the implementation of law. The need for law is a generalisation of the specific, concrete and instantiated needs of a community or society for organised joint activities, of the needs to regulate consumption and turnover, of the needs to protect human attributes and to punish and offer satisfaction when they are attacked, and finally of the need for the procedures and practices that allow to establish instructions and coercive measures for the satisfaction of the above-mentioned needs of prescription. The postulates of such frame of reference would briefly be the following. Law is not necessary for the human existence of any human community, although law as a social fact may accompany any society. People invent law because of the nature of themselves, their community and living environment: they want to live as well and worthily as possible under the conditions where needs exceed opportunities, the capacity and resources for satisfying the needs are distributed unevenly and where at least one individual is present who would be ready to satisfy his or her needs by causing suffering to other people. The legal relationship and legal fact are secondary: both are the results of the legal interpretation of social relations and social facts, i.e. law classifies and qualifies them as deserving law. Law and state give rise to and create each other only partly — both have other creators. It is not legal notions that are primary but the basic notions of human and social relations; legal notions are derivative in respect of the latter, although they are capable of creating certain things, e.g. institutions and relations.4 Law is an artefact and the artefactual nature of law (artificial purposeful functionality) is important to understand the nature of law. And finally, the frame of reference concerned is considerably more tolerant of the criticism of the applicable law — the question about what law should be like is inseparable from the question of what law actually is like. Why speak about the need for law, instead of speaking, for example, about the intent and interests of legislators or the moral of the outcome of legislative drafting? Not disregarding the need to discuss these and many other phenomena and characteristics of law in one or another instance, I would like to reason the category of the need for law by a simple argument: as law is always standardising, regulating, prescriptive, restrictive, obligating, constraining, etc., i.e. restricts positively or negatively the freedom of an individual, any legal interference in the activities of an individual must be justified by the need to restrict freedom of activity. Economic and political goals and the means and practices to achieve them need not be legal by nature. Nevertheless, a state based on the rule of law is characterised by an inclination to bring them into conformity with legal precepts. It is in the nature of law to offer such abstract schemes of 4

This does not mean that all legal notions have been derived immediately from social notions: e.g. technical and auxiliary terms of law have been invented to service law itself. This does not refute the assertion about the derivativeness of legal notions.

action, which have already been legally institutionalised and regulated — one only has to act in accordance with the precept to achieve the desired legal consequence. The law of a state based on the rule of law is, inter alia, characterised by a plethora of such schemes. However, the schemes can be implemented only through actual schemes of activity: a legal purchase and sale is an empty scheme until particular purchasers and sellers have conducted particular transactions with particular goods.And it would probably be difficult to refute the assertion that a material scheme of activity can be implemented also in a situation where law fails to provide a legal scheme appropriate therefor or if no law exists at all. But the absence of a hypothetically adjustable legal scheme (in extreme cases, law in general) in a human community almost always entails a problem: uncertainty about the expected conduct of partners, methods of resolution of conflicts and prospects, about whether the intent or interests of the individual himself or herself and others are justified, and finally about the actual protection of justified interests, including human existence. Within the limits of a larger human community, the issue concerning the content and volume of regulation becomes a political issue. The law of a state based on the rule of law offers an unbelievable variety of elaborated procedures for resolving any political problems and imposes reasonable restrictions on possible solutions or, in fact, on their consequences. The concept of a state based on the rule of law requires a legal formulation of political means and solutions. A form of law is a form from which we can identify law. As the process of formalisation is carried out through discussions and preliminary formulation (or draft acts — a draft act presents legislative feasibility), this has, from the very beginning, a feedback to political goals and problems themselves. Thus, a legally formalised final solution may differ from the initial intentions because of the simple reason that the initial intentions, concepts and knowledge have undergone considerable changes. This is an ability of legal reasoning to get things done by words.

2. Does the EU need constitutional law? The need for European law is firstly a need to regulate, inter alia, how to get European things (res publica) done by words. And secondly, and this may be even more important, the weighing of the need for European constitutional law, preliminary formulation and contestation of the constitutional acts of the EU may be more important in clarifying what Europeans and the peoples of Europe expect from the EU. There is no doubt that Europe is integrating into a new type of constitutional subject. This is characterised, above all, by plural subjecthood, which is completely new to the former constitutional law at least by its content. People usually talk about two complementary levels of constitutional arrangement — the supranational constitutional arrangement of the EU and the national constitutional arrangement of the member states. The

formulated constitution of the EU should provide: firstly, the constitutional arrangement of the EU, and secondly, the so-called constitutional relation between these levels. The scale of constitutional relations extends from the restriction of the sovereignty of nation states by the EU from top to bottom to the maximum exercise of the right of self-determination of the states from bottom to top. Restriction of sovereignty is not a goal in itself: it is a consequence of the partial transfer or delegation of national legislative power required for creating supranational, derivative law to the EU institutions. In relation thereto, there have been spoken about limited sovereignty, semisovereignty, national and supranational sovereignty; shared and common sovereignty. The terminology of sovereignty is based on certain legal philosophy traditions. In the context of EU law and also of contemporary international law, such terminology is characterised by serious inadequacies. The notions of sovereignty tend to elicit apprehension about the “Euro-sovereign” created by the abolishment of the national right of self-determination. The reasons for such apprehension may be purely terminological: as the constitutions of nation states regard independent statehood in terms of a complete and unlimited sovereignty — independence, autonomy, national self-determination, people as the highest authority — any reference, even an indirect one, to the Euro-sovereign unavoidably invades the so-called national and constitutional self-esteem. Perhaps the use of a slightly more technical terminology emphasising horizontal power relations instead of vertical power relations would help preserve that selfesteem. For example, in issues that seem to involve sovereignty of countries, instead of national and supranational entities, we could speak about the differentiated and integrated entities of Europe — differentiated and integrated sources of law, institutions and competencies. Integration is a common term, which is usually used as a general term related to European integration. A wide-spread slogan “unity in diversity”, however, also expresses the other side of integration — the difference without which integration would not be integration but unitary uniformity. It is most important to understand that integration does not necessarily mean the superiority of the integrated entities over the differentiated entities constituting them. Any organised joint activity continues to be organised and common until each participant refrains from the activity destroying the unity and organisation. If participation is voluntary, the unity and organisation are not superior but simply conditions of participation.5 If the EU is voluntary, subordination to the instructions and rules of European integration is a condition of voluntary participation in integration. This position is also supported by the principle of subsidiarity6 : what all the participants wish to do but cannot do 5

This may be illustrated by the chess metaphor, loved by philosophy: the rules of chess are not superior to the other rules of the players but they are unavoidable conditions of participation in the game.

6

This principle has been slightly modified and supplemented here.

separately should be done together; and what each participant can do independently or what some of them do not wish to do (and which is justified), should not be done together. Consequently, the integrated legal system of the EU and the differentiated legal systems of the member states are, above all, complementary; the shared competencies are the competencies of integrated institutes of law. National legal systems serve as differentiated entities in the context of trans-European integration, and above all, with regard to legislation and jurisdiction. This does not mean that common sources of law, institutions and competencies shared between the nation states should be superior to the national ones. 7 Simply their conflict or collision should be avoided. More precisely, it is not the conflict de facto that has to be precluded but the collision de jure: if the former emerges, procedures must commence to settle it politically and legally. A collision de jure is a legislative defect; a conflict de facto may be a sign of the crossing of the reasonable boundaries of integration. A legal collision may naturally occur as a manifestation of a factual conflict. In such a case, elimination of the collision does not mean a predestined elimination of a national, differentiated legal entity, but the concordance of the latter with an integrated entity — their harmonisation. This idea intertwines with another modern concept of law — the concept of polycentred law, which contrasts with the traditional concept of state-centred law. Thus, the EU and the whole European legal system can be regarded as a common system constituted by differentiated and integrated subsystems and the legitimacy — compositional, not unitary legitimacy — of which is founded on the legitimacy of the subsystems of both types. The differentiation of the legal systems does not require any new measures — nation states themselves are sufficient therefor. The EU law must be able to offer the measures and methods of integration: the instruments of harmonisation of common legislative drafting and differentiated measures, forms of intergovernmental cooperation, coordination schemes, as well as the rules and forms of enhanced cooperation between some countries. The development of the latter and at least their motivation in the constitutional acts of the EU is particularly important: on the one hand, it provides an opportunity to experiment and set examples in the so-called avant-gardist areas of cooperation, and on the other hand, it may also serve as a measure and security for the member states for exercising their right of self-determination.

7

Supranational is not a suitable term in this sense; international would be better unless it had a more general meaning.

The contemporary notion of state sovereignty is nevertheless limited, primarily by the principles of general human rights and of international law. The restriction of sovereignty by integrated law is no more radical than these limitations. The need for the integrated law of Europe is caused by two very different factors: firstly, the already functioning economic, political and cultural integration together with the actual plans and goals arising therefrom; secondly, the secondary needs caused by the already existing trans-European law for its legislative specification and a more efficient implementation. As it appears, such approach to the need for law connotes the nature of primary and secondary rules of law known from legal philosophy.8 The integrated European law is necessary in the areas where the law, differentiated on a national basis (or otherwise), cannot perform its functions in an optimum manner. Despite that, national legal systems and national constitutional laws serve as the paradigms on which the constitutional arrangement of the EU will be founded. And even more so, since national institutions and courts play (or should play) the main role in the implementation of European law — the courts will also perform integrated functions besides their differentiated functions. The integrated legal competencies, in turn, are two-fold: exclusive EU competencies and the shared competencies of the Community and member states. Therefore, people speak about the complementary nature of national or differentiated legal systems and supranational or integrated legal systems. The need for law is met by the functionality of law: the functions of rightful protection and obligating regulation. However, legal philosophy tends to overlook the issue of how law performs these functions. This is a topic concerning the methods of functioning of law.9 It is superficial to regard the functioning of law as materialisation or implementation of law, which simply follows the enactment of formulated law. The method of functioning of law is constructed in law by legislative drafting: law will function in the same manner as it is created. In other words, the functioning of law in the future will depend on the methods and processes by which the constitutional law of the EU is currently created. Nevertheless, the need for law is not the only creator of law. Political intent also has to be taken into account. Thus, besides the question of why the EU needs a constitution, it is not unnecessary to ask who want it. Are they European citizens or “European people”? Countries or peoples? Or (some) officials, statesmen and parties? 8

The reference is made to the concept of H.L.A. Hart. However, I emphasise that it is a useful categorical connotation, not sameness; this essay cannot accommodate a more detailed discussion of this topic.

9

Metaphorically speaking: the nature of law includes the methods of how law is constructed and how law functions, just as the nature of a motor includes how the motor operates and what machines it can move.

II. Observable and possible developments The requirements to the constitutional arrangement of the EU cannot be separated from the dilemmas of what direction the Community develops in this epoch and in what direction it may develop in the future. When assessing the feasible options, account has to be taken of both the development trends of the world and historical experience. When looking far back into history, to a couple of thousand years from now, it appears that the classics of European private law, Roman private law, developed according to the need for the development of commerce. The EU was also established and developed in response to the needs of economic circulation. The satisfaction of the economic circulation needs of Europe culminated in the introduction of the European currency. In comparison with the earlier epochs, something has undergone substantial changes in contemporary Europe: politics services the freedoms of people and offers them protection, due to which politics succeeds social, economic and technological changes in society, instead of attempting to anticipate or reinforce them. The Roman Empire was integrated from top to bottom, carried out by conquests and military constraints. The EU is a voluntary integration from bottom to top, carried out through discussion and argumentation. The Roman Empire started off from where political discussion ended, whereas the EU starts off from where political discussion begins. Does the seedbed of European private law have, despite substantial differences, any political lessons to teach our era? I think that there is one lesson that relates to this topic. Throughout its history, the Roman Empire saw much trouble with a very important gap in its constitutional arrangement: it lacked legal measures to rid itself of a tyrannical or otherwise incompetent ruler. As long as the economy was able to satisfy primary needs and the army managed itself and barbarians, the tragic consequences of this legal and political gap manifested themselves rarely and occasionally and did not jeopardise the fate of the entire society. However, when the internal and foreign policy situation deteriorated to the tolerance of society, the gap was filled anew by a common measure known from the last days of the republic - the political murder. The lesson is not inherent in the specific constitutional gap but in the fact that the strengths and weaknesses of any state arrangement remain almost unnoticed when society flourishes, but become apparent when the state and society are seriously tested by any internal or external threat. And what is most lamentable - the greater the satisfaction during the zenith, the less attention is paid to preparedness for the worst and the more painfully an unexpected crisis strikes.10

10

Americans, for example, have cultivated a myth about the prevalence of democracy in the Second World War. Also a different view may be adopted: the totalitarian and militarist regimes, characterised by careless attitudes to individuals and human lives, assumed grand risks and attacked, despite their lacking preparations, — since dictators aimed at tasting the fruit of their victory themselves — the rest of the world, the strength of which simply exceeded theirs by several times. Could we tell the world’s fate if the Second World War had started with a nuclear attack by the USSR on Pearl Harbour in 1950 and a missile attack of Greater Germany on London? Maybe the strength of democracy lies in the fact that by providing a larger number of people with freedoms and opportunities, rare megalomaniacs are prevented from assuming unlimited freedoms and opportunities to implement their insanely nonhuman plans!?

Preparations for the materialisation of optimistic prognoses need not be made in the same manner as for pessimistic prognoses — just as the preparations for receiving money or budget surplus are not essential; however, preparations should be made for losing money or budget deficit. Should the unifying Europe be ready for any shocks? What are the factors creating social, national and political tensions in Europe and surrounding Europe? Firstly, the EU as its member states must prepare for negative changes in the demographic situation in inland, and for the strengthening of the immigration pressure affecting foreign policy from outside. The constitutional arrangement faces a serious challenge of finding a balance between controversial principles and realities: (1) the requirements of nation states for the preservation of national and cultural identity must not violate (2) the principles of general equality of people and equal treatment, and both the national and general human ideals must resist (3) the pressure exercised by the totally unbalanced economic and demographic situation of the globalising world. Not the national or race criteria but the requirements for the preservation of individual work contribution to maintain the general level of education, human cultural environment and at least the existing standard of living serve as the criteria of the optimality of immigration. Secondly, preparations must be made for the deterioration of the Earth’s climate and an increase in the internal and foreign policy activity related thereto. Thirdly, the EU must have the minimum required preparedness for the shocks of the economic and military and political arrangement of the world (their anticipation is naturally more important, but this issue is not related to constitutional law). The threat entailed by globalisation does not consist in the global economic and political integration as such but, above all, in the fact that the globalisation of western living standards increases people’s needs so that these exceed opportunities. For example, would the Earth’s ecosystem and energy resources endure if each family in India and China had a passenger car (driven by an internal-combustion engine)? Thus, although the functions and characteristics of constitutional law have to be discussed under normal circumstances, as a rule, it is much more important to prepare constitutional law for survival in situations that deviate from the normal or are critical. This does not mean that the EU should be provided with a “crisis constitution”. Nevertheless, the EU must acquire such constitutional arrangement (and a constitution, if required), which would be flexible, but unbreakable: even if the majority of the arrangement of the EU discontinued to apply and function, the hard kernel would be retained around which European nations and people would gather at the time of hardship. For that purpose, the constitutional arrangement of the EU must be adaptable also to conflict situations of varying degrees of severity between the member states themselves. The hard kernel of constitutional acts or constitution should contain only the matter that no educated and democratically thinking European agreed to give up under any circumstances.

III. Characteristics of European constitutional law The following requirements have been presented for a possible EU constitution: it should be realistic, efficient, comprehensible, public and transparent, balanced, acceptable for the majority, securing and motivating democratic participation and supervision, constant and predictable. What is the comprehensibility or understandability of a source of law? Let us disregard the semantic aspects this time and examine the issue from the point of view of the epistemical consequences of incomprehensibility. There we can see the epistemological aspect of comprehensibility: incomprehensibility is one of the statuses of ignorance, in the worst case — in the case of a wrong decision of belief caused by incomprehensibility — incomprehensibility is a source of an epistemological mistake. If understood in this manner, the rule of law generating incomprehensibility serves as a source of legal ignorance. If someone makes, in an authoritative, legislative manner a generally mandatory interpretation decision that eliminates incomprehensibility (e.g. a decision of the court implementing a provision or an implementation act of a law), he or she also creates an knowledge of this rule of law. However, we should keep in mind — after interpretation, there are already two sources of knowledge, since separately neither of them is sufficient! Thus: the larger the number of incomprehensible provisions in constitutional acts, the more additional sources constitutional law requires. In other words, it is required that the meaning of a rule of law be not evident only in interpretation upon implementation but it should be comprehensible also for a so-called external interpreter already before the actual implementation of the rule of law. It is one of the characteristic features of a state based on the rule of law. At least a superficial examination reveals that a large share of the provisions of the EU Treaties fail to satisfy this requirement. The requirements to avoid excessive centralisation and the growth of euro-bureaucracy are justified, although these phenomena currently fall within the domain of sceptical euro-mythology. It would be a serious mistake to underestimate the threat entailed by these phenomena for the future. In relation to constitutional law, we are interested in an associated special issue: the weakening of the principle of separation of powers in integrated law. Should separation of powers be retained in integrated law? Can it be retained as such, as we know it from state-centred law? In order to answer the first question, we must first clarify whether the problem exists. It is my opinion that there is a tendency towards national executive powers transforming into the exercisers of trans-European legislative power, and I consider it to be a dangerous tendency. The legal counter-arguments that have been pointed out include the

ratification of the resolutions of the Council of the European Union in national parliaments and the foundation of the legitimacy of the Council on the governance authority granted by national parliaments. Unfortunately, the executive power may resist them in many ways: the resolutions of the governments of the member states concerning EU issues may be formalised so that they need not pass parliamentary debate, and the resolutions of the Council may be formalised ambiguously, which allows for multiple interpretation. The argument of legitimacy is invalid, since the powers are not separated by the sources of the legitimacy of the authority (competencies) of the executive power, but the separation of authority (while national governments do have legislative competencies through the Council of the EU and the Council of ministers). It is not a problem whether the tendency towards obscurity in separation of powers is dangerous in this epoch. If we are able to hypothetically construct and formally and legally correctly reason an instrument of constitutional law that is unacceptable for us by nature, it is a gap and a potential source of threat in the legal foundations of constitutional arrangement, and this must definitely be eliminated. I think that we may construct measures with regard to the EU, by which the national governments could enact such trans-European law, which could restrict the legislative power of national parliaments. This option must be carefully considered in widening the range of resolutions made by qualified majority voting. Thus, there is a (hypothetical) possibility that integrated executive power may seize legislative power through the European institutions. The problem of separation of powers is in several ways related to another problem: how to avoid the creation of euro-bureaucracy that is about to replace euro-democracy. Although this tendency is, particularly after the Maastricht and Amsterdam Treaties, fortunately rather a sceptical myth, the historical experience of the building up of empires should keep us on the alert for any such possibilities. It is not that we should fear that a new empire might be built in Europe, but, first of all, we should fear such fear itself, as in combination with other undesirable factors, it may have a centrifugal force destructive of integration. The trend towards the strengthening of euro-bureaucracy may paradoxically be enhanced by justified requirements to increase the efficiency of the European institutions: the democratic supervision and debate have an unavoidable tendency to limit the speed of decision-making. Also, the distance between the European institutions from the European demos may become inversely proportional to their proximity to the political kratos of the nation states. For example, the requirement not to transfer national political conflicts to the Union level would allow for successful concealment of the rotation of the political elite: those persons not in power as politicians at home ac-

quire power as officials in Brussels, until the roles are reversed.11 To avoid such distance, we should emphasise the attitude that any national political discussion is a part of trans-European political discussion, provided that it finds response there. At the same time, this does not mean that each topic of trans-European discussion must become a topic of national discussion. Such attitude is the spirit of European integration. To avoid such tendencies, the role of the national parliaments must increase considerably both in the legislative process within the EU and in supervision over the executive power. The effect achieved would be complementary, since the strengthening of parliamentarianism on the EU level is reasoned also by other arguments, above all, by the preservation of national fundamental arrangements. The principle of subsidiarity was discussed above. As a rule, it is presented in a simple form “do not do anything on the EU level, if national measures are sufficient”. I.e. the integrated measures support and assist the nationally differentiated measures. The principle as such is, at least in one sense, too broad. Although the national constitutions of Europe are from the aspect of cataloguing and protecting the fundamental rights of people and citizens more or less sufficient (considering their present state), it has been regarded as regrettable that the EU Charter of Fundamental Rights (irrespective of its actual implementation in court practice) has not been included in the system of the EU Treaties. This is indicative of areas, particularly the area of human rights, where the integrated measures are not subsidiary but fundamental, providing a basis. This idea also motivates the modification of the principle as presented above (see p. 6). The principle of subsidiarity must undoubtedly be included in the constitutional law of the EU, but it must not be extended to the measures of protecting fundamental rights and values: if these measures are real, it is not likely that there have been too many of them in history! Are “the routes of retreat founded on the right of self-determination”, for example, possibilities to leave the Union or dissolve it necessary for preserving national arrangement? I think that if we take the structure of European constitutional law, which must ensure the “flexible unbreakableness” of the constitutional arrangement, offered below, as the basis, such measures will not be necessary. The “hard kernel” must consist of the principles the abandonment of which would mean more than the abandonment of the EU. A more moderate version is more reasonable: to provide for cases and procedures to initiate the transformation of the EU. The Union may be transformed into factual dissolution; a complete formal and legal dissolution would hardly be desirable even in the worst-case scenario — firstly, if someone becomes the “bad 11

An opposite negative phenomenon is naturally also possible: the division of EU offices becomes a concealed motor of one or another political debate.

neighbour”, one cannot simply “walk away”; secondly, let us recall that before the Second World War, the aggressors-to-be left important international organisations to increase their freedom of activity. The rules of European constitutional law are in fact binding only when they fall within the competence of some court and when they are actually open for administration of justice. Consequently, the constitutional law of the EU must also contain a requirement of bindingness, including the implementation of constitutional law in courts of first instance. A constitution must create and alter (generate and transform) social facts. If a constitution fails to accomplish this, it is an empty law. The prospect of an empty constitution is unlikely in the current situation of Europe — such constitution simply could not be adopted. The constitutional arrangement of the EU should be liberal and characteristic of a state based on the rule of law; social ideals should be primarily represented by the principle that inequality has to be reasoned rationally, while the principle should be implemented. Thus, avoidance of legal fictions also belongs to the requirements presented to European constitutional law.12

IV. Functions of European constitutional law The paradigm of the arrangement of the EU consists of “three pillars”: the European Communities, common foreign and security policy, and cooperation in justice and home affairs. This paradigm expresses the content of the goals and objectives of European integration. The future constitutional arrangement of Europe, i.e. the integrated legal system, may connote this paradigm, but they will not overlap structurally: since law is a means, and not only for achieving objectives but also for preserving what has been achieved. Law as an artefact is characterised by its inherent functions and methods of functioning. Roughly speaking, a function answers the question for what? and the method of functioning the question how? The issue of efficiency of law can also be described in the frame of reference of the functionality of law and social relations deserving law. In order that we could speak about efficiency of law, a fundamental condition must be satisfied: law must perform the function for which it has been created, and function according to the prescribed method. Both conditions are necessary: e.g. common law punishing thieves on the basis of the talion principle (“an eye for an eye”) and modern criminal law perform the same functions, whereas their method of functioning differs considerably. The difference does not lie in the difference of punishments but rather in the difference of the method of punishment as a legal message, and the recipients of that message. There is 12

Here we should not confuse legal fictions and legal abstractions, which is another topic.

no doubt that common law may perform its punishing and preventive functions even better, but this cannot serve as a criterion of contemporary assessment of efficiency. Consequently, the prerequisites for assessing efficiency of law are satisfied only when constitutional law has been enacted to meet the need for law, enacted law functions so that it satisfies the need and also functions according to the manner anticipated in legal culture. Law has many internally differentiated functions (e.g. the function of procedural law is to ensure the reliability of the collected evidence). However, also very general functions exist, which are performed by the legal system as a whole. One of these is the protection function. The most conspicuous tool of the protection function is human rights: these are linguistically expressible conceptual measures, which, appealing to the intentional activity of the authorities, protect such human and social attributes that are inseparable from everyone’s human existence in our contemporary (but historically evolved and acquired through learning) understanding. In order to perform the protection functions, the duties to guarantee rights are imposed on particular institutions (authorities), as well as responsibility and liability for the cases of violation of the rights or non-performance of guarantee duties. There are many different objects of the protection function also on the EU level: national-cultural and political pluralism; democratic institutions, methods and practices; the collective security of Europe, etc. The function of the source of law is an entirely different dimension that penetrates the other functions of law. A constitution is the (textual) source of the constitutional law. Legal philosophers debate about whether and to what extent the text of a law is also a source of rules of law. (I support a moderate, epistemologically justified view that at least a part of rules of law are sufficient in a textual form and do not require authoritative interpretation). Nevertheless, the function of a source of law is to furnish legal reasoning with legal arguments. A constitution provides the highest legal and authoritative basis for legal reasoning both in administration of justice and in formulating and adopting laws, in the proceedings of the executive power, and finally in individual administrative relations between an individual and the state and even in private law relations. Such function is always better performed by a singular, clearly formulated constitution than compositional constitutional law. Of the functions of constitutional law, separation of state authorities could also be mentioned. With regard to EU, this means, in addition to the separation of the legislative, executive and judicial powers, also the separation of the integrated competencies from the differentiated competencies.

V. Structure of constitutional law of EU The need for (constitutional) law is not identical with the need for constitution. There is no doubt that EU already has its own constitutional law. But does it satisfy the actual needs? Would a singular constitution be better? Since the constitution is a conservative legal tool, does the EU need conservation of legal bases? If yes, then to what extent? Should the constitution serve as the legal basis for any joint European activity, or should it only establish common directing bodies? The creation of a “Euro-superstate” is neither desirable nor likely. The EU is an innovative union of countries, rather than a conservative state. Innovation presents to constitutional law requirements that are simultaneously restrictive and dynamic. On the one hand, unwavering principles must be established to protect lasting values, to prevent the principles, such as “ends justify the means” from coming to power. On the other hand, sufficient freedom of activity must be retained in the developing and transforming areas to create operative means for channelling development trends in the desired directions and to preserve openness for completely new developments. Thus, the EU does not need a constitution founding a state. People more or less agree that the existing constitutional law of the EU requires codification and simplification and a catalogue of fundamental rights (for example, the Charter of Fundamental rights or its modified text) must be included in it. As codification to such an extent certainly presumes the formulation, adoption and enactment of new constitutional acts, there is no point in doing half of the job, retaining partly in force old acts and partly enacting new acts or treaties. At least the constitutional “hard kernel” and perhaps also its “protective belt” should be created and enacted in corpore anew. Which could be a minimalist and flexible European constitutional law, which would conform to the majority of the legal needs and requirements to constitutional law discussed in this essay? European constitutional law could be constituted by three sources. Let us call them simply (1) European principles (Europrinciples), (2) European institutions (Euroinstitutions) and (3) European pandects (Europandects).

Arguments Above we have already presented several direct and indirect arguments to support the hierarchical system of constitutional law. Here I would like to add: a) different nation states have too different understanding and intentions regarding independent statehood, so that they could or should be channelled into the same bed (for instance, for the French — the nation state as a self-sufficient unit, for Britons — the monarchy as a symbol of the state, nation and elitist values, whereas for the acceding Eastern European countries, the EU is rather a guarantee of the right

of self-determination); b) it would be better to create a clear and comprehensible hard kernel and a somewhat more flexible protective layer than a uniformly weak and incomprehensible formation; c) it would be better to shape a hard kernel of law than a hard kernel of states (the large and leading avant-garde).

Content The Europrinciples would constitute the principal and conceptual nucleus of the European legal space. They would not only express precepts but, above all, humanely valued convictions that have been lifted to the position of values protected by law. They are the most general principles, or moreover, one integrated principal position that the development of the social, political and ethical thought has reached and the compliance with which it is now and will be in the future considered as unavoidable attributes of human life and activity. If this were only not a declarative, legally empty position, but an institutionalised source of law and administration of justice (or legal reasoning). In other words, the Europrinciples would express in an authoritative form the humanist world view of Europe. In order to ensure the dynamics and flexibility of constitutional law, so that it would not restrain the desirable development of the EU and would also resist the most severe crises, legal entities (such as executive institutions), which may require alteration already during this decade or which some states may (temporarily) abandon, should be left out from the principal “hard kernel”. The European principles must definitely include a catalogue of fundamental rights, the main principles of the constitutional arrangement of Europe (including a catalogue of the rights of European peoples, the principles of self-determination and membership of the EU member states) and the main principles of integrated law and legal system (inter alia, for example, “the principle of the best interpretation of law”). In addition, they might contain the general principles of environmental protection, prevention of war and ensuring of peace. The Europrinciples may contain a preamble, referring to historical experience, ideas of justice, and the constitutions of the EU member states as the component parts of the constitutional arrangement of Europe. The European institutions would establish (1) institutes: institutes of integrated law (including citizenship) and a system of representative bodies and bodies of power; (2) procedures, above all, a catalogue of the main legislative, executive and judicial procedures; (3) extraordinary states: a general and limited state of war, state of emergency, an area of a natural disaster, etc. In addition, Euroinstitutions may contain the principles of forming and using military rapid reaction forces, principles of integrated legislation, including the right of legislative initiative and procedures of the member states.

The Europandects might include other more or less constitutional acts, and if necessary, also those that precede the establishment of the European principles and European institutions. They would also contain the statutes of the European communities, tools for implementing law and executive procedures, regulations of special situations, the principles of local governments and national federalism, the foundations of common agricultural policy, etc. Briefly, the Europandects would regulate the protection and implementation of the priorities determined by the European principles by the EU institutions. The Europandects may develop into a code of European law in the future, losing their constitutional law nature.

Hierarchy The most important characteristic of the triple division is the hierarchy of the sources as levels of their conclusive force, scope of applicability and legislative stability.13 The Europrinciples will supersede any law and apply everywhere and to everything to where the competencies of the EU or the member states extend. Both the Euroinstitutions and the Europandects as well as the constitutions and sources of law of the member states must be in compliance with the Europrinciples. The threshold of the legislative amendment of the European principles will be the highest. The conclusive force and scope of applicability of the Euroinstitutions and Europandects will depend on the functions of the institutes and instruments established thereby. The legislative threshold of the Euroinstitutions would be higher and that of the Europandects lower. In any case, both will be subject to the Europrinciples and void in the case of a conflict. It is possible that the requirement of superiority and compliance will be divided so that the Euroinstitutions will be superior to the sources of integrated law and the Europandects will be superior to the nationally differentiated sources of law. It is clear that the establishment of such a hierarchy will demand at least the adoption and establishment of the Europrinciples and European institutes irrespective of the former constitutional acts of the EU. A part of them may be included in the pandects, if necessary, where they will be subject to the clauses restricting the principles. It is possible that all the three parts must be adopted separately. The adoption of the European principles, or else the codification of the former sources into the European pandects, could come first. Such a hierarchical system of constitutional law could serve as a stabilising tool between stationary fundamental values and fundamental rights and probably dynamic social, political and economic processes; also between (presumably) nationally more conservative member states and a (hopefully) technologically more innovative EU. 13

The hierarchy is not relevant to legitimacy: all the sources of EU law are characterised by similar legitimacy.

VI. Other issues Many issues related to constitutional law deserve to be discussed separately. I would like to pinpoint two of them. Firstly, it is necessary to strengthen integrated parliamentarianism, i.e. the role of national parliaments in the EU institutions. Irrespective of the weightiness of objections appealing to the increasing complexity of procedures or inefficiency of the institution representing the parliaments (for example, the European Senate), there is a fundamental argument supporting the introduction of such practice: the EU is a union of parliamentary democracies and the highest bodies of the members of the union — the parliaments — cannot be removed from its direction (it would be as unusual as to remove monarchs from directing a royal personal union). The claim that the parliaments participate through the governments renders the EU to the mere level of ministries. Secondly, issues related to citizenship need to be settled. Perhaps it is worth considering implementing even such a radical measure as a singular EU citizenship (parallel to the national, original citizenship): this would be granted to stateless Europeans by their country of residence. Such an institution, in fact, already exists. Its legal formalisation would eventually solve the problems faced by several candidate states14 related to stateless foreigners, without interfering with the national interests of these countries.

Conclusion The EU was born as an economic community, the development of which peaked with the introduction of its common currency. To date, the EU has also become a political union. The next step will be legal — let us refer to it as the constitutionalisation of Europe. The most notable achievements of the EU do not consist in the creation of euro-bureaucracy but in the growth of the freedom of people. For the first time, the citizens and residents of European countries may call Europe their home, on the whole territory of which they have equal freedoms of movement and activity and fundamental rights protected by law. The increase in the actual freedom of each individual and its actual protection against any threats is and will remain the main distinction between good and bad policy. Now the need and demand has emerged to shape the EU into a democratic union of nations and countries — a real authority of the peoples and citizens of Europe over the European institutions servicing them, since only such authority can be a security of the preservation of freedoms and human dignity also during the hardest times of history.

14

Esp. of the Baltic States.

Irrespective of the future intensity of European integration, national differentiation will remain a fact in Europe both internally and externally. Internal differentiation is manifested in the difference of national cultures and will survive at least as long as national languages. External differentiation will survive despite the constitutional arrangement of the EU in particular inter-state relations, above all, between the former mother countries and colonies.15 If any region in the world has played a unifying role in the world history at all it has been Europe, both for better and for worse. The increase in the activity of the EU as a subject of international law is a continuation of that role — hopefully only in a good sense. The constitutional arrangement of the EU will be a sequel to the magnificent story of Europe and its peoples. A story about contemporary Europe is not a story about conquerors and almighty trade companies; it is an example of free will to the other regions and peoples of the world.

15

Great Britain has special relations with North America and the Commonwealth of Nations, Spain and Portugal with Latin America, France, Holland, Belgium, etc. with Africa and South-East Asia, etc.