Since the euro crisis, protest movements present the European Union as a neoliberal hegemony that undermines democracy and prevents progressive reforms. They call for acts of resistance and partial disintegration to force a renegotiation of the treaties. In this article, I ask whether these ‘disruptive’ political strategies can be defended as a democratic practice of constitutional politics. To that end, I turn to the notion of destituent power, according to which opposition to or withdrawal from public authority can function as a legitimate trigger for constitutional change. I systematise the emerging debate on destituent power and discuss the plausibility of competing approaches. I argue that destituent power is best understood as grounded in popular sovereignty. It denotes the right to dismantle constitutional orders without the intention to construct new ones. While this idea supports some of the acts of contestation proposed by European protest movements, it faces a lure towards the jurisgenerative dimension of constituent power. Ultimately, the potential of a purely negativistic logic of constitutional politics is limited.

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While the emerging debate about the disintegration of the European Union focuses on descriptive and explanatory questions, this article approaches the phenomenon from the perspective of democratic theory. Building on a concept of disintegration as a form of constitutional politics that includes various possibilities of dismantling supranational polities, I argue that disintegration gives rise to a democratic puzzle. While it must be possible, for democratic reasons, to partially or entirely reverse European integration, any such step threatens the European Union’s democratic achievements. Disintegration seems to be caught between legitimate change and regression. To address this democratic puzzle, I examine to what extent European integration has produced democracy-related ‘ratchet effects’ that limit the scope for legitimate reversal. This analysis leads to three principles of legitimate disintegration that can be applied to any supranational polity and have important implications for the post-Brexit relations between the United Kingdom and the European Union.

In The Crisis of the European Union Jürgen Habermas claims that the constituent power in the EU is shared between the community of EU citizens and the political communities of the member states. By his own account, Habermas arrives at this concept of a dual constituent subject through a rational reconstruction of the genesis of the European constitution. This explanation, however, is not particularly illuminating since it is controversial what the term 'rational reconstruction' stands for. This article critically discusses the current state of research on rational reconstruction, develops a new reading of Habermas' method and invokes this account for an explanation and evaluation of the notion of a European pouvoir constituant mixte.

In this article, I elaborate a conceptual innovation that underlies, if only in nascent form, Jürgen Habermas's notion of pouvoir constituant mixte and could significantly advance research on the democratic legitimacy of EU constitutional politics: the levelling up of constituent power. According to this idea, state-level pouvoirs constituants may issue an authorization for constitutional decision-making at the supra-state level and thereby bring about a new constituent power whose composition can take a variety of forms. This conceptual framework paves the way for a systematic analysis of the EU's pouvoir constituant and its relation to the demoi of the member states. At the same time, it renders it an open normative question of who should be in charge of EU constitutional politics.

Exceptional times call for exceptional measures—this formula is all too familiar in the domestic setting. Governments have often played loose with their state's constitution in the name of warding off an urgent threat. But after decades of increasing interconnectedness and emerging transnational governance, today one sees new forms of emergency politics that are cross-border in range. From the European Union to the World Health Organization, from supranational institutions to state governments acting in concert, the logic of emergency is embraced in international contexts, with Covid-19 the latest occasion. This Forum offers an entry-point into this emerging phenomenon. Taking as its point of departure two recent books, it examines the origins, forms, effects and normative stakes of emergency politics beyond the state. Among the matters discussed are the concept of emergency politics, the historical context of its contemporary forms, the patterns of decision-making associated with it, the implications for the legitimacy of transnational institutions, and the constitutional and political ways in which it might be contained. Transnational emergency politics seems likely to remain a central feature of the coming years, and our aim is to further its study in international relations.

Abstract:There is a growing sense that if the EU is to avoid disintegration, it needs a constitutional renewal. However, a reform negotiated between executives will hardly revitalise the European project. In light of this, commentators have suggested that the EU needs a democratic refounding on popular initiative. But that is easier said than done. Shaping the EU has been an elite enterprise for decades and it is hard to imagine how things could be otherwise. In this article, I map four public narratives of constituent power in the EU to sketch out potential alternatives. Political actors increasingly call into question the conventional role of the states as the ‘masters of the treaties’ and construct alternative stories as to who should be in charge of EU constitutional politics, how the respective subject came to find itself in that position, and how it should invoke its founding authority in the future. These public narratives represent a promising starting point for a normative theory that outlines a viable and justifiable path for transforming the EU in a bottom-up mode.

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