Discursive Constituent Power and European Integration

Abstract

It is high time the “return of the political” in Western liberal societies began to be recognized in all its facets, especially as regards the inherently conflictual nature of constitutional claims. Looking at the constituent power is therefore all the more important nowadays. The idea of constituent power has always been controversial. Yet, despite its highly contested nature, the intensification of the process of constitutionalisation in the second part of the 20th century has contributed to its resurgence, at least in its popular version. Renewed attempts to derive the authority of a system of government from the decision taken by the constituent power (in particular, the people) acquire a peculiar significance in light of the wave of populism across the European Union (EU). Once again, we are faced with crucial questions, as regards the process of European integration. Is there a constituent power in the EU? And, if so, does it come from the people? From Bodin’s idea of sovereignty as “the highest power of command”, the final instance of coercion, to Paine and Sieyes’ notion of sovereignty as the power to found, to constitute, multiple approaches can be adopted. These approaches tend to convey the image of an unconstrained and undivided force, either in its repressive attitude or in its creative assertiveness. However, they seem increasingly unsuitable for the current conceptual landscape of transnational integration. This difficulty is confirmed by recent efforts to locate the constituent power in the international community, which may also, at best, be doubted. This paper seeks to unravel a different scenario, one in which a form of discursive constituent power emerges from the interstitial tissue of the EU. Subjectivity and crisis are thus strictly connected with each other. From this angle, all ambiguities and contradictions of the EU liberal project may be laid open. In particular, the paper follows a discourse theoretical line of research and adopts as its starting point a dual conception of “The People”: 1) as “mobile people”, i.e. a construction of people as moving from one place to another of the EU territory and 2) as “peoples” in the plural, i.e. a construction of “demoi” that is supposed to underpin the process of development of the EU as a polity. It will be shown that, in both configurations, the security and fundamental rights discourses as discourses of power are much more relevant than may seem. Fundamental rights are protected only to the extent their recognition is instrumental to ensuring the primacy, uniformity and effectiveness of EU law.