The False Promise of Constitutional Pluralism

Abstract

The paper argues that constitutional pluralism has insufficiently taken into account democratic concerns about the institutional position of national constitutional courts. Pluralists accept constitutional disagreement between the EU and its Member States, but on this basis generally see the possible constitutional conflict generated by national constitutional courts as fruitful. The articulation of national constitutional limits to the primacy of EU law is valued, because it opens a space for contestation or dialogue that is preferable over the rigid hierarchy imposed by EU law. The paper argues why such constitutional disagreements are better addressed in a democratic political process. Yet, where constitutional courts articulate constitutional limits to European integration they are likely to constrain political institutions in addressing constitutional questions themselves. Constitutional pluralism therefore presents a false promise: It promises a more legitimate way to resolve constitutional disagreements than its hierarchical alternatives, yet it will often lead to the opposite.

Keywords: constitutional pluralism, democracy, judicial review, judicial dialogue, national constitutional identity

JEL Classification: K33