The Jean Monnet Program

“Enlargement and the constitution are two sides of the same coin”

The ambitious attempt to adopt a constitution for Europe – a process that was launched with the Laeken declaration of December 2001 and culminated in June 2004 with the agreement on the adoption of a 300 plus page Constitutional Treaty – provides a unique context for addressing this lacuna. From the post-World War II constitutions of western Europe to the post-authoritarian constitutions of Latin America, Southern Europe, and Asia, to the post-communist constitutions in Eastern Europe, constitutionalization has more often than not been a byproduct of a major political and/or economic regime change. In contrast, the EU Constitution has neither been accompanied by, nor resulted from, any apparent fundamental changes in political or economic regime. Likewise, it has not been the outcome of any revolutionary or otherwise memorable “constitutional moment,” to use Bruce Ackerman’s terminology.¹ And it is also clearly distinguishable from the gradual, decades-long, “quasi-constitutionalization” of the European Community’s legal order, driven by the European Court of Justice’s interpretation of the EEC Treaty as a constitution-like charter.² Akin to a few recent “no apparent transition” constitutional revolutions elsewhere,³ the current attempt at adopting a Constitution of Europe provides a near ideal testing-ground for identifying the political origins of constitutionalization by allowing us to disentangle the political origins of constitutionalization from other possible explanations.

In this paper I examine the contribution of the main theories of constitutional transformation to the understanding of the causal mechanisms behind the EU constitutionalization process. The primary focus of the paper is not the specific details and precise mechanisms of the EU constitution. Rather, it is aimed at offering a coherent intellectual framework for thinking about the political origins of constitutionalization. For the sake of clarity and simplicity, I group extant theories of constitutional transformation into three broad categories, which I discuss in the paper’s three main parts. I begin by critically assessing the main “evolutionist” explanations for constitutionalization, at the core of which stand idealist notions of constitutionalization as a byproduct and an emblem of democratization, nation building, and prioritization of human rights. Next I examine “functionalist” theories of constitutional transformation that emphasize systemic needs and other structural and organic origins of constitutionalization trends. In the third part, I explore strategic approaches for understanding constitutional transformation that focus on interests and incentives as the major driving force behind constitutionalization. Specifically, I argue that the current EU constitutionalization trend is hardly driven by politicians’ dedication to promoting European grandeur and unity, nor by member states’ commitment to a progressive agenda of democracy, power sharing, social justice, or universal rights.⁴ Akin to a few other “no apparent transition” constitutional revolutions over the past two decades, the EU Constitution is best understood as a type of “hegemonic preservation” measure undertaken by self-interested, risk-averse political power-holders who, given the uncertainty and potential threats posed by EU enlargement and other potentially destabilizing processes, may seek to entrench their privileges, worldviews and policy preferences through constitutionalization. In other words, I argue that strategic constitutional innovators – hegemonic yet threatened political power-holders, in association with bureaucratic, economic and judicial elites sharing compatible interests – have been the major driving forces behind the EU constitutional reform.
I. Ideals

“In principle,” argues a recent article, “all modern constitutions begin with “We the People.”⁵ Arguably, the most common view of constitutionalization portrays the adoption of a new constitution as a symbolic proclamation of the creation of a new political community or as the by-product of political leaders’ benign attempts to enhance social integration in systemically divided polities. Unlike its relatively successful legal and economic integration, the emerging EU entity has long suffered from lack of social integration. The transformation of a primarily economic community (the European Community) to a thicker supra-national regime (the European Union) – a process that began with the Maastricht Treaties (1991) and continued with the Treaty of Amsterdam (1997) – brought about a much greater involvement of the EU in core political, social, and moral issues that had hitherto been dealt with at the nation-state level. These developments have been politicizing the EU, and consequently, engendering legitimation problems. Indeed, few would deny that EU suffers from an endemic “democratic deficit” and is in dire need of popular legitimacy.⁶ In that respect, leading European intellectuals suggest that the EU can attain democratic legitimacy only if a European demos with a collective identity takes shape. Purportedly, that is the very role of a European constitution.⁷

The main motive for the adoption of an EU Constitution, argues prominent German jurist Dieter Grimm, is to remedy this deficiency, and to fulfill the original blueprint of the EC Treaty (Article 2) of aspiring to achieve an “economic and social cohesion and solidarity among Member States.” According to this argument, the driving force behind the EU Constitution, therefore, is not juridical, but rather a “Demos-building” one – the EU Constitution will serve an important symbolic, even emotional, social integration function, and will enhance the social cohesiveness of the supra-national European polity.⁸ In short, the recent EU constitutionalization process is viewed as a further step towards the formation of a thicker social and political Union. While the social integration or the “Demos-building” explanation of constitutionalization is quite convincing, it still does not provide a full answer as to why the need for enhancing social integration through constitutionalization has become so acute thirteen years after Maastricht and not say a decade earlier.

The “Ackermanian” view of constitutionalization portrays constitutional law making as derivative of a large-scale political mobilization of vast numbers of citizens over a substantial period of time (“constitutional moments” in Ackerman’s terminology), leading to a constitutional transformation that genuinely reflects the demos’ will. Granted, some of the post authoritarian constitutional revolutions of the last three decades (e.g. in South Africa, Latin America, Latin Europe and post-communist Europe) appear to fit this Ackermanian, “nation-building” notion of constitutional law making. However, it is difficult to see how this notion of constitutional transformation helps us understand the vectors behind the current attempt to adopt a Constitution for Europe. This attempt clearly has not emerged out of any revolutionary or otherwise memorable “constitutional moment by any stretch of the imagination. It has not emerged out of any revolutionary or otherwise memorable “constitutional moment.” Furthermore, the European constitutionalization process has evolved in considerable distance from the EU demos’ will or interest, with the general sense being that of political leaders and technocrats “cutting a deal” and trying to foist it on the public. This is further reflected by the record low voter turnout (44 per cent), the big anti-incumbent vote and quite sizable support for Euro-skeptics in the June 2004 elections to the European Parliament that took place merely days prior to the adoption of the Constitutional Treaty. In short, the adoption of the EU Constitution seems anything but a reflection of an Ackermanian constitutional moment.

Another common explanation of constitutional transformation portrays the trend toward constitutionalization as an inevitable by-product of a new and near universal prioritization of human rights in the wake of World War II.⁹ According to the generic version of this canonical view, the sweeping worldwide convergence to constitutionalism reflects modern democracies’ genuine pre-commitment to entrenched, self-binding protection of basic rights and liberties in an attempt to protect vulnerable groups, individuals, beliefs, and ideas vis-à-vis the potential tyranny of political majorities; especially in times of war, economic crisis, and other incidents of political mass hysteria. The greatest proof of democracy’s triumph in our times, it is argued, stems from the increasing acceptance and enforcement of the idea that democracy is not equivalent to majority rule; that in a real democracy (namely a democracy that subscribes to the constitutional supremacy principle rather than a democracy governed predominantly by the principle of parliamentary sovereignty), individuals should possess legal protections in the form of a written constitution unchangeable even by an elected parliament. According to this view, the presence of an effectively enforced, written and entrenched constitution is the crowning proof of a given polity’s political development. Consequently, the seemingly undemocratic characteristics of constitutions and judicial review are often portrayed as reconcilable with majority rule, or simply as necessary limits on democracy.

The conception of constitutional transformation that stems from the social contract school of thought views constitutions and judicial review as procedural devices that free and equal people might agree to voluntarily impose on themselves to protect their equal basic rights.¹⁰ Realizing the occasional temptation of popular majorities to adopt measures that infringe on the basic rights of some, while not having an a priori indication of whose rights might be restricted by such potential measures, members of a polity might rationally choose to entrench the fundamental rules of the political game and the basic rights of its participants by granting a non-legislative body that is insulated from majoritarian politics the power to review legislation. In so doing, members of the polity (or its constituent assembly) provide themselves with precautions or pre-commitments against their own imperfections or harmful future desires, and tie themselves into their initial agreement on the basic rules and rights that specify their sovereignty.

In its more concrete guise, this thesis suggests that constitutionalization (and the expansion of judicial power, more generally) is derivative of a general waning of confidence in technocratic government and planning, and a consequent desire to restrict the discretionary powers of the state.¹¹ By increasing “access” points for special interest groups, constitutionalization and the establishment of active judicial review promote the diffusion of political power, add veto mechanisms, restrict maneuvering of policymakers, and limit the power of legislative majorities.¹² According to this view, independent constitutional courts not only monitor untrustworthy executive and legislative bodies, but also facilitate the political representation of diffuse but well-organized minorities. This representation creates opportunities for certain groups to participate in policy-making processes that might otherwise be closed to them in majoritarian parliamentary politics.¹³ Proponents of this approach therefore regard constitutionalization as the outcome of successful efforts by well-organized minority groups to protect themselves against the systematic threat of majoritarian political whims, and to increase their impact on public policy outcomes.

While providing a thoughtful and parsimonious explanation of the worldwide expansion of constitutionalism and judicial review over the past six decades, these evolutionist accounts of constitutional transformation do not provide a coherent explanation for the great variance in the scope and timing of constitutionalization across the new constitutionalism world. Such idealist theories of constitutionalization fail to explain why “new constitutionalism” polities such as Canada (1982), Israel (1992), South Africa (1993-1996), or the European Union in the early 2000s, for example, converged to the post-World War II thick notion of constitutional democracy precisely in the year they did and not, say, a decade or two earlier. Granted, the nightmare of World War II still looms large in the collective European memory. However, if the current EU constitutionalization is driven primarily by a collective reaction to horrors of World War II, it is unclear why it has taken the pro-constitutionalization movement some sixty years to gain momentum at the continental level. Likewise, evolutionist theories fail to explain why the waning of confidence in technocratic government, and a consequent desire to restrict the discretionary powers of the new European supranational entity has reached its peak in the early 2000s and not earlier or later. Not to mention the fact that the involvement of well-organized minority groups, or indeed any other segment of the EU population, in the current EU constitutionalization process has thus far been negligible.

Somewhat more convincing explanations concerning the origins of the EU constitution are offered by functionalist theories of constitutional transformation. Like the evolutionist approach, functionalist (or systemic needs-based) explanations cast constitutional transformation as an organic response to pressures within the political system itself. These explanations emphasize the ineluctability embedded in constitutional change, and tends to minimize the significance of human agency and choices. However, they also recognize particular ways in which legal innovations can follow from demonstrations of social, economic, or bureaucratic need.

In its most common version, the need-based explanation for the emergence of constitutions points out a strong correlation between the recent worldwide expansion of the ethos and practice of democracy and the contemporaneous global convergence to constitutional supremacy. Indeed, by its very nature, the existence of a viable democratic regime implies the presence of a basic separation of powers among state organs, as well as a set of procedural governing rules and decision-making processes to which all political actors are required to adhere. The persistence and stability of such a system, in turn, requires at least a semi-autonomous, supposedly apolitical judiciary to serve as an impartial umpire in disputes concerning the scope and nature of the fundamental rules of the political game. The establishment of some form of agreed upon power sharing mechanisms among the subunits and between the central government and the subunits is a necessary component of viable governance in multi-layered federalist countries, and in emerging supra-national polities such as the European Union.

The democratic imperative thesis captures an important driving force behind the constitutional revolutions in new democracies in Latin America or in the post-communist world. However, the attempt to adopt an EU Constitution has neither been accompanied by, nor resulted from, any transition to democracy, or any other fundamental changes in the EU’s basic organization or regime type. Since its inception, the EU has been a multi-unit, quasi-federal entity perpetually searching for a set of governing principles, separation of powers structures and power sharing mechanisms. It is therefore unclear what accounts for the seeming urge of prominent EU member states to adopt a constitution precisely in the early 2000s.

Another guise of the functionalist approach suggests that constitutionalization derives from a structural, organic political problem such as a weak, decentralized, or a chronically deadlocked political system. The more dysfunctional the political system is in a given democracy, the greater the likelihood of expansive judicial power in that polity.¹⁴ Constitutionalization, and political deference to the judiciary more generally, is seen as an effective way of overcoming political “ungovernablity,” and ensuring the unity and “normal” functioning of such polities. According to the ungovernability thesis, a polity’s structural inability to deal with its embedded social and cultural rifts, and the stalemate faced by that polity’s majoritarian politics corrode the authority of the legislative and executive branches of government, thereby leading to a systemic dependency of that polity on a dominant, seemingly apolitical, professional decision-making agencies (e.g. constitutional courts).

In its “consociational” variant, the needs-based explanation of constitutional transformation emphasizes political necessity in the development of formal mechanisms such as mutual veto and proportional representation, characterizing them as inevitable constitutional solutions that allow ethnically fragmented polities to function. According to this logic, constitutionalization in polities facing political polarization is the only institutional mechanism that enables opposition groups to monitor distrusted politicians and decision makers.¹⁵ This model of constitutions as effective power-sharing mechanisms is often applied, with variable degree of success, to understanding constitutional pacts in multi-ethnic countries such as Belgium, Spain, Switzerland, and other similarly situated polities.

Another functionalist, systemic needs-based explanation emphasizes the general proliferation in levels of government and the corresponding emergence of a wide variety of semi-autonomous administrative and regulatory state agencies as the main driving forces behind the expansion of judicial power over the past few decades. According to this thesis, independent and active judiciaries armed with judicial review practices are necessary for efficient monitoring of the ever-expanding administrative state. Moreover, the modern administrative state embodies notions of government as an active policymaker, rather than a passive adjudicator of conflicts. It therefore requires an active, policy-making judiciary.¹⁶

Following this logic, some accounts of the rapid growth of supranational judicial review in Europe over the past few decades portray it as an inevitable institutional response to complex coordination problems deriving from the systemic need to adopt standardized legal norms and administrative regulations across member-states in an era of converging economic markets and the need for international regulation and coordination.¹⁷ Some argue that successive treaties between the EU countries have created a mass of overlapping legal texts, which must be consolidated into a single document. According to this argument, there is a systemic need to address the basic questions at the heart of the EU legal structure such as supremacy, residual powers, and “subsidiarity.” Along the same lines, others argue that the enlargement from 15 to 25 countries will make the EU bureaucratic project much harder to manage. A two-thirds rise in membership may bring gridlock to a busy EU. Misunderstandings and disagreements will multiply, even with goodwill on all sides. Two or three disorganized or actively impudent countries will be enough to guarantee chaos.

This “standardization” or “simplification” argument stems from a broader view within international relations theory that sees governments’ pooling and delegation of sovereignty to international policy-making bodies as driven primarily by a quest for efficient solutions to complex coordination problems. According to this view, international institutions’ centralized technocratic functions are more efficient than decentralized governments at generating and processing information, economic planning and coordination.¹⁸ A similar “standardization” rationale may explain what may be called the “incorporation” scenario of constitutional reform. In this view, the constitutionalization in member-states of supranational economic and political regimes (the EU, for example), as well as signatory states to transnational trade and monetary treaties, occurred through the incorporation of international and trans- or supra-national legal standards into domestic law.¹⁹ The Constitutional Treaty does indeed consolidate all European treaties into a single document. However, it is still unclear why a constitution is needed to resolve foundational structure and jurisprudence problems in EU law, as all of these problems seem resolvable through already existing mechanisms of treaty-making, and multilateral agreements among member states.

In sum, while the evolutionist and functionalist theories outlined above account for some factors contributing to the adoption of constitutions, none analyzes the specific political vectors behind any of the constitutional revolutions of the past several years in a comparative, systematic, and detailed way. Moreover, none of these theories account for the precise timing of constitutional reform. If we apply these existing theories of constitutional transformation to a concrete example, they consistently fail to explain why a specific polity reached its most advanced stage of judicial progress at a specific moment and not, say, a decade earlier. Like the “democratic proliferation” thesis, both the “constitutionalization in the wake of World War II” argument and its corresponding “constitutionalization as pre-commitment” argument fail to account for the significant variations in the timing, scope, and nature of constitutionalization. It is hard to see, for example, why members of the Canadian polity in 1982, members of the Israeli polity a decade later, or members of the European Union in the first decade of the 21 century, chose to take precautionary steps against their own imperfections precisely in the year they did, and not earlier or later. What is more, the constitutionalization as pre-commitment argument is based on a set of hypothetical and speculative presuppositions concerning the origins of constitutions and judicial review that at the very best provide an ex post facto normative justification for their adoption. Moreover, the European Union is certainly not “structurally ungovernable,” and even if it were, it is difficult to see in what way it was more structurally ungovernable in the early 2000s than in the early 1990s, right after Maastricht, for example. Furthermore, both evolutionist and systemic needs-based theories of constitutional transformation tend to ignore human agency, and the fact that constitutional innovations require innovators – people who make choices as to the timing, scope, and extent of constitutional reforms. Both of these kinds of explanation overlook the crucial self-interested intervention by those political power-holders who are committed to constitutionalization and judicial expansion in an attempt to shape their institutional settings to serve their own agendas.

Another utilitarian approach – the institutional economics-derived theory of constitutional transformation – sees the development of constitutions and judicial review as mechanisms to mitigate systemic collective action concerns such as commitment, enforcement, and information problems. One such explanation sees the development of constitutions and independent judiciaries as an efficient institutional answer to the problem of “credible commitments.”^st

Political leaders of any independent political unit want to promote sustainable long-term economic growth and encourage investment that will facilitate the prosperity of their polity. Two critical preconditions for economic development are the existence of predictable laws governing the marketplace and a legal regime that protects capital formation and ensures property rights. The constitutionalization of rights and the establishment of independent judicial monitoring of the legislative and executive branches are seen as ways of increasing a given regime’s credibility and enhancing the ability of its bureaucracy to enforce contracts, thereby securing investors’ trust and enhancing their incentive to invest, innovate, and develop.

Indeed, as Max Weber noted, the fundamental building-block of every successful capitalist market is a secure “predictability interest.”²⁰ Without this, potential investors lack the incentive to invest. Scholars have shown how entrenched legal rights that enhance investors’ trust have led to economic growth in various historical contexts. Douglass North and Barry Weingast, for example, have illustrated how limitations on rulers’ power in early capitalist Europe increased legal security and predictability, thereby allowing certain polities to borrow capital from external lenders, who were protected by law from the seizure of their capital.²¹ More recent empirical studies have established a positive statistical correlation between the existence of institutional limitations on government action (rigid constitutional provisions and judicial review, for example) and fast economic growth.²²

Even if constitutionalization does indeed mitigate problems of information, commitment and enforcement, as suggested by this and related institutional economics-driven theories, these theories cannot explain how prosperous democratic polities managed to successfully address collective action problems prior to the establishment of a constitution. Indeed, a successful monetary union that addresses the credible commitments concerns has already been established in the EU, without reliance on formal constitutionalization. Constitutionalization, in other words, is not a necessary precondition for mitigating commitment problems. Constitutionalization in the EU context therefore cannot be explained solely by the EU’s efficiency-driven quest for the mitigation of such problems. More importantly, these theories do not explain why a certain polity – the EU for that matter – would choose to adopt such efficient mechanisms at a particular point in time, and not much earlier. If a constitution is indeed an efficient and essential credible commitments mechanism, why it has taken the EU authorities so long to adopt one?