Essay: Postnationalism, (Dis)organised civil society and Democracy in the European Union: Is Constitutionalism Part of the Solution or Part of the Problem?

Abstract

The idea of a European constitution has been a constant refrain in academic and political discourse on European integration, and has recently gathered considerable momentum due to the intervention of politicians and the media and its explicit institutional recognition in the Laeken Declaration on the Future of the European Union. If much of the debate is characterised, tainted even, with a top-down logic of legal-constitutional engineering - a logic which arguably flows from the elitist political roots and philosophy of the project itself - there is nevertheless a growing tendency to examine the theoretical alternatives through which a more open and inclusive constitutional process might be understood. There is considerable irony in an endeavour to ‘democratise’ a postnational polity through a constitutional settlement, brought out when the theoretical underpinnings of the constitutional movement are laid bare, and the alternatives to a hierarchical or legocentric understanding of constitutionalism's reach are examined. The purpose of this paper is to suggest some of the possible pitfalls in a constitutionalist position fixated on a hierarchical or federal arrangement, and highlight some theoretical alternatives which appear accommodating, even demanding, of a more bottom-up approach and conducive to a radical inclusion of civil society, both organised and disorganised, in the structures of constitutional construction and negotiation.