Europe's Economic Constitution in Crisis and the Emergence of a New Constitutional Constellation

Abstract

The European Union rides through troubled waters. Its original reliance on law as the object and agent of the integration project and on the “economic constitution,” which the Economic and Monetary Union (EMU)—as accomplished by the Treaty of Maastricht— expected to complete, have proven unsustainable. Following the financial and sovereign debt crises, individuals perceive the EMU, with its commitments to price stability and monetary politics, as a failed construction precisely because of its reliance on inflexible rules. The European crisis management seeks to compensate for these failures by means of regulatory machinery which disregards the European order of competences, takes power from national institutions, and burdens—in particular—Southern Europe with austerity measures; it establishes pan-European commitments to budgetary discipline and macroeconomic balancing. This abolishes the ideal of a legal ordering of the European economy, while the economic and social prospects of these efforts appear gloomy and the Union's political legitimacy becomes precarious. A fictitious debate between Carl Schmitt and Jürgen Habermas addresses the present critical constellation, where a number of Schmittian notions seem alarmingly realistic. This essay pleads for a more modest Europe committing itself to “unity in diversity,” the motto of the ill-fated Constitutional Treaty of 2003.