The good, the bad and the ugly: The need for constitutional compromise and the drafting of the EU Constitution

Abstract

The Convention on the Future of Europe has provoked both cynicism and idealism. Cynics see it as a largely rhetorical exercise that consolidates but does not go beyond the achievements of recent intergovernmental conferences (IGCs) or greatly transform the nature of the EU. Idealists view it as offering the potential for a new departure that replaces intergovernmental bargaining with genuine deliberation to produce a genuine European consensus. According to this interpretation, a constitution should take the form of a contract that all rational individuals possessing a sense of justice would approve. This paper disputes both these views. Reasonable disagreement means that a constitutional consensus is never possible and some form of compromise necessary. Such compromises need not be simply the product of a self-interested bargain, though. There are good compromises as well as bad and ugly or poorly drafted and misguided ones. This paper provides criteria for distinguishing these three types and explores examples of each of them in the Convention on the Future of Europe and the resulting draft constitution.