The Migration of Constitutional Ideas and the Migration of the Constitutional Idea: The Case of the EU

Abstract

This paper considers the dynamics of migration of constitutional ideas in the context of the gradually constitutionalizing EU, and in particular the advent of a first documentary Constitution in the shape of the new (and as yet unratified) Constitutional Treaty of 2004. The normal, and profound, complexities of tracking and evaluating the migration of constitutional ideas in the national context are exacerbated in the case of a supranational polity such as the EU. Empirically, its position as a partial and relational rather than a comprehensive and self-contained polity means that the migratory flow is thicker and the sense of a common EU 'habitat' to which ideas migrate is less distinct. Normatively, due to this empirical complexity, the classic arguments about the democratic dangers and the cultural insensitivity of constitutional migration do not apply in the same fashion. On account of the quasi-federal mediating role of the ECJ, the relative openness of the Constitution-making process, the emphasis upon relatively context-independent measures of institutional design, and the different normative significance of democracy as a principle at the supranational level, the democratic dangers of the migration of constitutional ideas are in the final analysis less pressing than at the national level. By contrast, however, the distinctive character of the European polity means that the importation of ideas honed in the state context and against a background of national politics may be inappropriate to the transnational political culture of the EU.

Keywords: EU Constitutional Treaty, constitution building, supranationalism, European identity