Constitution without the constitutional moment: A view from the new member states

International Journal of Constitutional Law

Volumn 3, Issue 2-3, 2005, Pages 243-261

  Sajó, András ^a  

^a CENTRAL EUROPEAN UNIVERSITY   (Hungary)

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[No Author keywords available]

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EID: 33746344336     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/moi018     Document Type: Article

References (48)

1. The most influential, or at least the most eloquent, contemporary theory of the constitutional moment is advanced in Bruce Ackerman, We the People (Belknap Press of Harvard Univ. Press 1998).
2. For a criticism of the attraction of the "people's will" position, see Lawrence G. Sager, The Incorrigible Constitution, 65 N.Y.U. L. Rev. 893 (1990). ("The claim of privilege [for popular will]... would have to be that popular will enjoyed a powerful advantage in accuracy or reliability [given a metric of what makes a political choice good] over other possible means of choosing among social options." Id. at 902.) It is noteworthy that, in contrast to the American founding-fathers myth, in Eastern Europe there is little veneration of those figures who laid the foundations of the new republics. Moreover, in countries such as Hungary, Slovakia, or Slovenia, there was little genuine public participation in the transition that was negotiated with communist elites.
3. This is what Michelman calls "existential bindingness" as "a matter of how things are (what I see that we in this country just happen to find ourselves doing)." Frank I. Michelman, Propter Honoris Respectum: Constitutional Authorship by the People, 74 Notre Dame L. Rev. 1605, 1607 (1999).
4. Max Weber, Wirtschaft und Gesellschaft: Grundrisss der verstehenden Soziologie [Economics and Society: An Outline of Interpretive Sociology] 16 (Mohr 1980).
5. It would be very costly to let parliamentarism or, alternatively, presidentialism prevail according to the predilections of a given political moment, on the assumption that one or the other form will serve the country better. Fujimori's presidentialism, for example, served Peru well for a while but ended in disaster.
6. Michelman, supra note 3, at 1609.
7. The plebiscites were relevant in this regard: It seems they were deemed necessary to indicate that the principle of popular authorship is still respected by the elite. On the other hand, the tribal understanding of the national community is problematic exactly in this regard, that it denies the possibility of participation. It is for this reason that references to division into good and bad (or "disloyal," i.e., Jewish, Roma, or, in Romania, Hungarian) citizens result in strong divisions.
8. William Wallace, Collective Governance, in Policy Making in the European Union 523, 529-530, (Helen Wallace & William Wallace eds., Oxford Univ. Press 4th ed. 2000).
9. See in particular Jeffrey Lewis, National Interests: Coreper, in The Institutions of the European Union 277 (John Peterson & Michael Shackleton eds., Oxford Univ. Press 2002).
10. See also Wessels'concept of 'fused' national and Brussels politics in Wolfgang Wessels, An Ever Closer Fusion? A Dynamic Macropolitical View on Integration Processes, 35 J. Common Mkt. Stud. 267 (1997).
11. For a criticism of the attraction of the "people's will" position, see Lawrence G. Sager, The Incorrigible Constitution, 65 N.Y.U. L. Rev. 893 (1990). "The claim of privilege [for popular will] would have to be that popular will enjoyed a powerful advantage in accuracy or reliability [given a metric of what makes a political choice good] over other possible means of choosing among social options." Id. at 902. It is noteworthy that, in contrast to the American founding-fathers myth, in Eastern Europe there is little veneration of those figures who laid the foundations of the new republics. Moreover, in countries such as Hungary, Slovakia, or Slovenia, there was little genuine public participation in the transition that was negotiated with communist elites.
12. Note Three, in Norman Dorsen et al., Comparative Constitutionalism 260-261 (Thomson/West 2003).
13. Leszek Lech Garlicki, The Presidency in the New Polish Constitution, 6 E. Eur. Con. Rev. (1997), available at http://www.law.nyu.edu/eecr/ vol6num2/feature/presidency.html.
14. Jürgen Habermas, So, Why Does Europe Need a Constitution? 4, European University Institute, Robert Schuman Centre of Advanced Studies (2001), at http://www.iue.it/RSCAS/e-texts/CR200102UK.pdf (last visited Dec. 2, 2004).
15. New members are no different from old ones in this regard: The size of the Commission received much more attention at the European convention than did the question of accountability. The problem is that such disregard of constitutional and democratic considerations reinforces the weakness of democratic commitment in Eastern Europe.
16. This is more than mere insufficiency in capacity building. The bureaucrats will learn (at least as fast as it happened in Greece or Italy) the Eurospeak of bureaucratic communication. But the professional and bureaucratic dislike of the rule of law (beyond the simple responsibility avoidance that is promised by legalism) will persist. It will reinforce the popular dissatisfaction and contribute to a disregard of the rule of law and acquiescence to a lack of democratic control.
17. Joseph H.H. Weiler, A Constitution for Europe? Some Hard Choices, 40 J. Common Mkt. Stud. 563, 567 (2002). Weiler finds additional shortcomings in the Community that preclude constitutionalism. The draft constitution would not have done away with these shortcomings.
18. Notwithstanding the rich literature available on networks and policy networks, the domestic and European constitutional implications of the network phenomenon are disregarded in the constitutional literature. It seems that the problem of the lack of interface between networks and constitutional structures is not recognized, either intellectually or in practical terms.
19. For a study of the constitutional relevance of independent agencies and their networking, see Andras Sajó, The Concepts of Neutrality and the State, in From Liberal Values to Democratic Transition 107-144 (Ronald Dworkin et al. eds., Central Eur. Univ. Press 2003).
20. See also András Sajó, Neutral Institutions: Implications for Government Trustworthiness in East European Democracies, in Building a Trustworthy State in Post-Socialist Transition 29 (János Kornai & Susan Rose-Ackerman eds., Palgrave MacMillan 2004);
21. on networking in international relations see Anne-Marie Slaughter, Global Government Networks, Global Information Agencies, and Disaggregated Democracy, 24 Mich. J. Int'l L. 1044 (2003)
22. on European networks see Renaud Dehousse, Regulation by networks in the European Community: The role of European Agencies, 4 J. Eur. Pub. Pol. 246 (1997).
23. See Giandomenico Majone, Functional Interests: European Agencies, in The Institutions of the European Union 300 (John Peterson & Michael Shackleton eds., Oxford Univ. Press 2002). In 2002, Majone found that although political compromise resulted in institutional designs with ambiguous responsibilities and uncertain competences, "the issue of independent and credible European agencies is still very much alive."
24. Id. at 323.
25. Any discussion of democratic accountability in the network age should start from Slaughter's warning: "the impossibility of fully "reaggregating" the state in a tidy democratic package will ultimately require a much more sophisticated understanding of networks and the interaction of nodes in a network with each other, whether individual or institutional." Slaughter, supra, at 1068.
26. See Giandomenico Majone, Regulatory Legitimacy, in Regulating Europe 284 (Giandomenico Majone ed., Routledge 1996). Majone states that "Recent empirical research provides additional evidence in favour of the thesis that non-majoritarian decision-making mechanisms are more suitable for complex, plural societies than are mechanisms that concentrate power in the hands of the political majority."
27. Id. at 286.
28. Note that the way European bureaucracy mastered governance beyond the state is "not the very way in which preferences get 'aggregated'" the aggregation is perhaps just a function of dominance. Kalypso Nicolaïdis & Robert Howse, This is my EUtopia. Narrative as Power, 40 J. Common Mkt. Stud. 767, 771 (2002). "In any case, as Europe's response to the Statue of Liberty, comitology may not be quite as inspiring."
29. Id. at 771.
30. Here I rely on Liesbet Hooghe & Gary Marks, "Does Identity or Economic Rationality Drive Public Opinion on European Integration," at http://www.jeanmonnetprogram.org/hauser/Marks_HauserS04.rtf (last visited Dec. 2, 2004).
31. One of the most famous illustrations of this thesis is that Community price support had always favored the richest farmers. See The Development and Future of the CAP - Reflections Paper of the Commission, COM(91)100 final.
32. On fiscal impacts, see, For example, Michele Ca'Zorzi and Roberto A. De Santis, The Eastward Enlargement of the European Monetary Union, EUI Working Papers 2004/31, The Robert Schuman Centre for Advanced Studies; on the impacts of industrial policies resulting in regional uneven development and qualitative differentiation between regions,
33. see, For example, Ray Hudson, Production, Place and Environment: Changing Perspectives in Economic Geography (Prentice Hall 2000).
34. Katarzyna Czernicka, Recycling of historical symbols and heroes: The case of anti-European campaign of LPR in Poland, presented at the 14th Biennial Conference of Europeanists (Mar. 11-13, 2004), available at http://www.europanet.org/conference2004/papers/B8_Czernicka.pdf.
35. Eurobarometer 57.2 (Apr.-June 2002); Candidate Countries Eurobarometer 2003.4 (Oct.-Nov. 2003).
36. Hooghe et al., supra note 21.
37. This distinction draws on Stephen Shulman, Challenging the Civic/Ethnic and West/East Dichotomies in the Study of Nationalism, 35 Comp. Pol. Stud. 554 (2002).
38. Some member state governments made encouraging statements concerning their intentions with regard to the seven-year transition-period provision of the accession treaty. However, Austria and Germany applied the restrictions in the strictest form allowed, and other member states followed their lead after public opinion was alarmed by a prospect of welfare-seeking entrants overloading their welfare systems.
39. Majone, supra note 18, at 287,
40. quoting Renaud Dehousse, "Institutional reform in the European Community: Are there alternatives to the majoritarian avenue?" European University Institute, EUI Working Paper, Robert Schumann Centre, RSC 95/ 4. (1995). The draft constitution moves in just the problematic direction of majoritarianism envisioned by Dehousse (increased role of Parliament in appointment of commissioners, stronger presidency to the detriment of smaller countries, majority voting in the Commission, etc).
41. See Cass R. Sunstein, Designing Democracy: What Constitutions Do 6-10. (Oxford Univ. Press 2001). In the approach that Sunstein exemplifies, constitutions serve as a set of "preconditions for a well functioning democratic order, one in which citizens are genuinely able to govern themselves." In Sunstein's view constitutions "should promote deliberative democracy an idea that is meant to combine political accountability with a high degree of reflectiveness and a general commitment to reason-giving."
42. Id. at 6-7
43. One can find a strong element of deliberative democracy at the Union level, in terms of formative principles: At least the ECJ finds that reasons must be provided as a formal condition of legislation. However, if one examines the reason-provision process, and the arguments offered in EU directives, one comes to the conclusion that reason-giving remains a formality at best. Deliberative communities are opaque and self-recruiting.
44. Frank I. Michelman, Terra Firma: Background Democracy and Constitutional Foundations, 99 Mich. L. Rev. 1827 (2001),
45. discussing Terrance Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U. Chi. L. Rev. 653 (1975).
46. Id. at 700.
47. Michelman finds these to be two distant or different positions. Michelman, supra note 30, at 1839.
48. On the difficulties of learning to trust the ECS and the Union as different but reliable protectors of fundamental rights, see András Sajó, Learning Co-operative Constitutionalism the Hard Way: The Hungarian Constitutional Court Turns its Gaze away from EU Supremacy (forthcoming 2005) (manuscript on file with author).