The Constitutional Success of Ratification Failure

Abstract

The momentum behind the Constitutional Convention and the Constitutional Treaty was not that Brussels realised that the peoples of Europe were crying out for the drafting of a beautiful text, which they could take to their hearts as their very own constitution. That much, at least, has always been fairly clear. Of course, this should not present an impenetrable barrier to constitutional endeavour, because the constitutional possibility is the possibility that is generated by the effort of founding community in the honouring of community, honouring community in the recognition of community, recognising community in the identification of community, and identifying community in the founding of community. Every constitutional text is “guilty” of grasping and writing down its declarative commitment in this way. At two levels, then, the peculiarity of the European situation comes to light. First, this very fact that the people did not consider themselves part of a community that could be founded, honoured, recognised and identified through a constitutional register managed to become the crucial justifying motive for the production of a constitutional text. Secondly, and infinitely more significantly, this unspoken but widely-held belief in the constitutional impossibility becomes the register in which we seek to understand all the various positions and interests that emerge in the constitutional debate, and through which we seek to mandate those positions in the constitutional text.