The Legacy of the Lost EU Constitution

Abstract

The ‘lost constitution’ is the failed EU Constitutional Treaty (CT) of 2003-5, and its legacy is disputed. Some see it as an anomalous interlude – a temporary wrong-turning in the European project of little lasting significance. Others see it more negatively – part of a broader overreach by the EU that began with developments in social, monetary, security and foreign policy under the 1992 Maastricht Treaty, and has gradually threatened the traditional prerogative of member states. On this view, the CT’s legacy is corrosive. It has prompted a nationalist reaction, its destructive effects seen in the sovereign debt crisis, the migration crisis, the Brexit vote, and in the link in many member states between a new wave of populist authoritarianism and Euroscepticism. This paper explores a third approach. Drawing upon the significance of constitutions within the state tradition, it seeks to view the legacy of the failed CT more positively. Rather than a corrosive influence, it is seen as an early sign of the growth of a common sense of Europe-wide political community sufficient to indicate a preparedness to put things in common independently of the concurrent cause of the individual member states. The member states’ failure to reach agreement over the CT, while in some measure due to fundamentally anti-EU sentiments, was largely attributable to competing visions of the content and orientation of a shared pan-European approach. From this perspective, it is instructive that in the post-2005 years, although the CT was a dead letter, constitutional language actually became more embedded within EU legal and political discourse. Recent years have seen this taken a stage further, with the tentative renewal of efforts across the political spectrum to develop something like a formal constitutional settlement. This might be seen as a ‘politics of desperation’ in response to the kinds of nationalist reactions mentioned above. Alternatively, however, by reinforcing the growing sense of the EU’s problems as amounting to a shared predicament that invites a common response, this might support the idea of a written constitution as an incipient expression of common political community (as in the state tradition). The failed CT also carries practical lessons for constitutional renewal, two in particular. First, procedurally, any attempt to generate a pan-European vision requires a common popular referendum organised around a common debate rather than a disaggregated series of national processes and debates. Secondly, and substantively, a Constitution should aim for a limited statement of general principles and procedures, rather than an extended, detailed document that carries little expressive significance and succeeds only in taking important political choices off the table.