Constitutional Pluralism: Chronicle of a Death Foretold?

Abstract

What remains of constitutional pluralism in the wake of the Euro-crisis? According to the new anti-pluralists, the recent OMT saga signals its demise, calling to an end the tense stalemate between the ECJ and the German Constitutional Court on the question of ultimate authority. With the ECJ’s checkmate, OMT represents a new stage in the constitutionalisation of the European Union, towards a fully monist order. Since constitutional pluralism was an inherently unstable and undesirable compromise, that is both inevitable and to be welcomed. It is argued here that this is misguided in attending to the formal at the expense of the material dimension of constitutional development, which is not to say that constitutional pluralism is alive and well; on the contrary it is in a precarious state. The material perspective reveals a deeply dysfunctional constitutional dynamic, of which the judicial battle in OMT is merely a surface reflection. This dynamic now reaches a critical conjuncture, encapsulated in the debate over ‘Grexit’, and the material conflict between solidarity and austerity. Constitutional pluralism, in conclusion, may be worth defending, but as a normative plea for the co-existence of a horizontal plurality of constitutional orders. This requires radical constitutional re-imagination of the European project.