When and how to legally challenge economic globalization: A comment on the German Constitutional Court’s false promise

Abstract

Abstract The German Constitutional Court’s recent challenge to European law supremacy, and European lawyers’ strident critique of it, divert us from the conversation we need to have. The German Federal Constitutional Court wants us to focus on a surplus of European Union power, the European Court of Justice’s refusal to constrain it, the legal strategy of proportionality, and the goal of protecting national democracy. I defend national judicial pushback that is used to protect individual rights, democracy, and the national constitutional order. But demanding a German right to proportionality review of European Central Bank (ECB) monetary policy does not further these goals. Judicial review of monetary policy, especially in a context of radical uncertainty, makes little sense. Nor is the German Court’s doctrinal focus helpful as a way to address globalization. We need a new and different conversation focused on when and how constitutional review can effectively and helpfully push back against the adverse impacts that economic globalization is creating.