The Shifting Foundations of the European Union Constitution

Abstract

This article traces the contested and unresolved history of EU constitutionalism. In particular it looks at the interaction of three strands; judge-centred legal constitutionalism, implicit documentary constitutionalism (itself divided into more or less evolutionary or foundational sub-strands) , and Big 'C' explicit documentary constitutionalism. It examines the various shifts not only in the actual pattern of relations between these strands, but also in how they are incorporated into dominant insider narratives. After the failure and fall of the (first ever) explicit Constitutional Treaty of 2004, the dominant insider constitutional narrative remained explicit, but no longer tied to a self-certified constitution of a foundational nature. Rather, it (re)stressed in express constitutional language the incremental and evolutionary quality of the EU's distinctive polity development and achievement. Given the present Euro crisis however, the evolutionary narrative, predicated upon continuing overlapping consensus, is under threat, and the return (and, perhaps, final rejection) of explicit foundational constitutionalism cannot be discounted. The story of the EU's constitutional origins, therefore, remains unfinished, and is closely tied up with the very fate of the EU polity.