Why Europeans will not embrace constitutional patriotism

International Journal of Constitutional Law

Volumn 6, Issue 1, 2008, Pages 117-136

  Kumm, Mattias ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

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EID: 39049158847     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mom034     Document Type: Conference Paper

References (68)

1. See Treaty establishing the European Community, Nov. 10, 1997, O.J. (c 340) 3 [hereinafter EC Treaty], art.17.
2. On May 29, 2005, France held a referendum to decide whether the country should ratify the proposed constitution of the European Union. The result was a victory for the "no" campaign, with 55 percent of voters rejecting the treaty, on a turnout of 69 percent.
3. On June 1, 2005, a consultative referendum was held in the Netherlands to ask whether the country should ratify the proposed constitution of the European Union. Official results say that 61.5 percent ofvoters rejected the constitution, on a turnout of 63.3 percent.
4. In the parliamentary elections of June 2004, voter turnout was 45.7 percent, the lowest it has everbeen. For details, see http://www.elections2004.eu.int.
5. See EUROBAROMETER 60.1: CITIZENSHIP AND SENSE OF BELONGING (European Research Group 2 004), available at http://ec.europa.eu/public-opinion/archives/ebs/ebs-199.pdf (finding that 43 percent of European citizens feel they are nationals only, and 47 percent feel they are, first, citizens of their own country and, then, citizens of Europe. Only 7 percent feel they are Europeans first, and then citizens of their country, while 3 percent feel solely European).
6. See, more generally, A.-Paul Frognier & Sophie Duchesne, Is There a European Identity?, in PUBLIC OPINION AND INTERNATIONAL GOVERNANCE 194-226 (Oscar Niedermayer & Richard Sinnot eds., Oxford Univ. Press 1995).
7. The current draft is officially titled the "Draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community," although it may become known as the Lisbon treaty once it is signed by governments in December 2007.
8. In the Netherlands and France, for example, the reform treaty will be subject to the ordinary national treaty ratification procedure, without a popular referendum.
9. The Maastricht treaty (the Treaty on European Union [TEU], which was signed on February 7, 1992, in Maastricht, and entered into force on November 1, 1993) introduced, among other things, a commitment to a European currency, European citizenship, and significant expansion of qualified-majority voting.
10. The Single European Act, signed at Luxembourg on February 17, 1986, and at The Hague on February 28, 1986, with entry into force on July 1, 1987, effectively enabled the enactment of European legislation concerning the internal market by qualified-majority voting, rather than requiring unanimity in the Council of Ministers. This occurred by way of introduction of art. 100a (now art. 95) of the EC Treaty.
11. Empirical research suggests a strong correlation between the development of a European identity and support for European institutions. See Maurits van der Veen, Determinants of European Identity: A Preliminary Investigation, at http://www.Isanet.org/noarchive/ vanderveen.html (analyzing Eurobarometer statistics to show that a sense of European identity is not simply a proxy for support for European integration and has a far greater impact on support for integration than vice versa. Moreover, variables that are often argued to promote support for European integration are shown to do so primarily through their impact on a sense of European identity). For an explanatory account why that may be so, See JÜRGEN HABERMAS, Ist die Herausbildung einer europäischen Identität nötig, und ist sie möglichi]? [Is the development of a European identity necessary and is it possible?], in DER GESPALTENE WESTEN [THE DIVIDED WEST] (Suhrkamp 2004).
12. The debate on what European citizenship could mean was spurred by the inclusion of a citizenship clause in the Maastricht treaty. See, e.g. Franz Mayer & Jan Palmowski, European Identities and the EU - The Ties that Bind the Peoples of Europe, 42 J. COMMON MKT. STUD. 573 (2004)
13. John Fossum, The European Union in Search of an identity, 2 EUR. J. POL. THEORY 319 (2003)
14. JOSEPH WEILER, To Be a European Citizen: Eros and Civilization, in THE CONSTITUTION OF EUROPE 324 (Cambridge Univ. Press 1999)
15. Jesserum d'Oliveira, European Citizenship: Its Meaning, Its Potential, in EUROPE AFTER MAASTRICHT: AN EVER CLOSER UNION? (Renaud Dehousse ed., Kluwer 1994)
16. Josephine Shaw, Citizenship of the Union: Towards Post-National Membership, 6 COLLECTED COURSES OF THE ACADEMY OF EUROPEAN LAW 237 (Academy of European Law 1995).
17. See also GARCIA SOLEDAD, EUROPEAN IDENTITY AND THE SEARCH FOR LEGITIMACY (Pinter 1993).
18. Jan-Werner Miiller, On the Origins ofConstitutional Patriotisrn, 5 CONTEMP. POL. THEORY 2 78-296 (2006).
19. The best-known contemporary proponent of constitutional patriotism as an identity for citizens in liberal constitutional democracies, generally, as well as in the EU, is Jürgen Habermas. See Jürgen Habermas, Why Europe Needs a Constitution, in DEVELOPING A CONSTITUTION FOR EUROPE 19-35 (Erik Eriksen, John Fossum, Agustine Menèndes eds., Routledge 2004).
20. See also JÜRGEN HABERMAS, The European Nation-State: On the Past and Future of Sovereignty and Citizenship, in THE INCLUSION OF THE OTHER 105-127 (MIT Press 1998)
21. and HABERMAS, supra note 10.
22. See also Attracta Ingram, Constitutional Patriotism, 22 PHIL. & SOC. CRIT. 1 (1996).
23. See, most recently, JAN-WERNER MÜLLER, CONSTITUTIONAL PATRIOTISM (Princeton Univ. Press 2007).
24. See TREATY ESTABLISHING A CONSTITUTION FOR EUROPE (hereinafter, CT), art. 1-2 ("The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights
25. A prominent skeptic of constitutional patriotism is Richard Bellamy. See Richard Bellamy, Which Constitution for What Kind offurope? Three Models of European Constitutionalism (unpublished paper on file with author).
26. See also Richard Bellamy & Dario Castiglione, Legitimizing the Euro-Polity and its Regime: The Normative Turn in EU Studies, EUR. J. POL. THEORY 7 (2003).
27. See also Michelle Everson, Strong Evaluations, Self-Interpretation and Constitutional Patriotism, in CONSTITUTION MAKING AND DEMOCRATIC LEGITIMACY 177 (Erik Eriksen, John Fossum & Agustin Menéndez eds., Arena Report No. 5 2002).
28. See CT, art. I-1, para. 2 ("The European Union shall be open to all European states which respect its values and are committed to promoting them together").
29. The CT presupposes such a consensus in art. I-2, supra note 14.
30. See also art. I-59 (authorizing the suspension of certain rights in cases of a serious and persistent breach of these principles by a member state).
31. On the features and function ofessentially contested concepts in the context of European integration, focusing in particular on sovereignty, see Samantha Besson, Post-souveraineté on simple changement de paradigms? Variations sur un concept essentiellement contestable [Post-sovereignty or a Simple Paradigm Shift? Variations on a Fundamentally Contestable Concept], in LA SOUVERAINETÉ AU XXI-IÈME SIÈCLE [SOVEREIGNTY IN THE TWENTY-FIRST CENTURY] (Tiziano Balmelli, Alvaro Borghi & Pierre-Antoine Hildbrand eds., EdIS 2003).
32. "The political culture of a country crystallizes around its constitution. Each national culture develops a distinctive interpretation of those constitutional principles that are equally embodied in other republican constitutions... in light of its own history." HABERMAS, The European Nation-State, supra note 13, at 118.
33. CT, pmbl. ("DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values ofthe inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law...").
34. Id.
35. Id.
36. Id.
37. CT, art. I-10.
38. See WEILER, To Be a European Citizen, supra note 11 (emphasizing the interdependence between national and European citizenship).
39. See CT, prabl.
40. The original draft drawn up by the convention went further and described Europe as "a continent that has brought forth civilization," claiming that "freedom, equality and respect for reason" were humanist (as opposed to religious) values and introduced the preamble with a quote from Thucydides on the meaning of democracy in ancient Greek (a language that fewer than 3 percent ofEuropean citizens can read. Furthermore, the secularist triumphalism ofthe original draft made no mention of "bitter experiences." [insert cite to official text of draft document in question] After strong criticism, the Intergovernmental Conference that later approved the CT made the revisions in June 2004.
41. See Armin von Bogdandy, The European Constitution and European Identity: Text and Subtext ofthe Treaty establishing a Constitution for Europe, 3 INT'L J. CONST. L. (I•CON) 295 (2005).
42. See http://www.elections2004.eu.int/ep-election/sites/en/ results1306/turnout_ep/index.html.
43. In the new member states - Slovakia and Poland, for example - voter turnout was below 20 percent. Less than one third bothered to vote in the Czech Republic, Estonia, and Slovenia. On the other hand, voter turnout in Malta was above 80 percent. In Belgium and Luxembourg it was over 90 percent. Id.
44. For a helpful analysis of the elections, see Richard Rose, Europe Expands, Turnout Falls: The Significance of the 2004 European Parliament Election, at http://www.idea.int/elections (last visited Feb. 2, 2005).
45. The number ofseats that each state has was determined by negotiations and reflects a compromise between the idea ofequal representation of states, which would require all states to have the same number of representatives, and the principle ofequal representation of citizens, which would require the number of seats to be proportional to the national population. Luxembourg, for example, has 6 MPs, Germany has 99. This means that there is one MP for every 67,000 citizens of Luxembourg, but only one MP forevery 828,000 citizens of Germany.
46. For a discussion of this issue, see Miguel Maduro, Where to Look for Legitimacy?, in CONSTITUTION MAKING AND DEMOCRATIC LEGITIMACY 81 (Erik Eriksen, John Fossum & Agustin Menéndez eds., Arena Report No. 5 2002).
47. A standard Eurobarometer survey consistently shows that a great majority ofEuropeans would prefer a parliament with a strong supervisory function over a European executive.
48. Andrew Moravcik, In Defense of the 'Democratic Deficit': Reassessing Legitimacy in the European Union, 40 J. COMMON MKT. STUD. 603 (2002).
49. "Pareto-optimizing" refers to the situation in which, given alternative allocations among parties, allocations that leave at least one individual better off, without making any others worse off, are Pareto-optimized, in line with the theories on economic efficiency by Italian economist/sociologist Vilfredo Pareto (1848-1923).
50. For the relevance ofthis principle to EU legislative processes, see Fritz Scharpf, Negative and Positive Integration in the Political Economy of European Welfare States, in GOVERNANCE IN THE EUROPEAN UNION 15 (Gary Marks et. al. eds., Sage 1996).
51. See Dieter Grimm, Does Europe Need a Constitution?, 1 EUR. L. J. 282 (1995)
52. Fritz Scharpf, Democratic Policy in Europe, 2 EUR. L. J. 136 (1996).
53. Art. I-19 CT lists the European Parliament as the first element of the EU's institutional framework. Art. I-20 provides details about the Parliament. Arts. I-21 to 25 CT address the European Council, Council president, and Council of Ministers, and art. I-26 CT addresses the Commission.
54. Art. I-46 CT establishes that the functioning of the Union "shall be founded on representative democracy" and immediately thereafter states that "citizens are directly represented at Union level in the European Parliament," before going on to mention the European Council and Council of Ministers as institutions representing member states accountable to national parliaments or citizens.
55. Art. I-20 sect. 1 states that the European Parliament "shall elect the President of the Commission."
56. Germany, for example, has amended its Constitution (art. 23 of its Basic Law) to enable domestic actors to better control the actions of the executive. Denmark, too, has established effective procedures to better control the actions of the executive branch on the European level.
57. The now-prevailing procedure, introduced under the Maastricht treaty, by which the European Parliament and the Council of the European Union adopt legislation jointly, provided they agree on an identical text.
58. ANDREAS OLDAG & HANS MARTIN TILLACK, RAUMSCHIFF BRÜSSEL [SPACESHIP BRUSSELS] (Argon Verlag 2003).
59. For a conception of European history that supports the development of a European identity and the role of public education, see Mattias Kumm, The Idea of Thick Constitutional Patriotism and Its Implications for the Role and Structure of European Legal History, 6 GERMAN L. J. 319 (2005).
60. For an argument that the development of national identities was linked to the emergence of representative institutions on the national level, replacing more indirect forms of rule, see MICHAEL HECHTER, CONTAINING NATIONALISM (Oxford Univ. Press 1999).
61. See Grimm, supra note 37.
62. See, e.g., Andrew Moravcik, In Defense of the 'Democratic Deficit': Reassessing Legitimacy in the European Union, 40 J. COMMON MKT. STUD. 603 (2002)
63. and Renaud Dehousse, Beyond Representative Democracy, in EUROPEAN CONSTITUTIONALISM BEYOND THE STATE 135 (Joseph Weiler & Marlene Wind eds., Cambridge Univ. Press 2003).
64. The procedure whereby the Commission involves national administrations in preparing implementation of EU legislation. Such legislation often instructs the Commission to work with a committee of representatives of member states to ensure that implementation measures are appropriate to the situation in each affected country. See 1999/468/EC; OJL 184/ 23 of 17.7.199 9 ("the Comitology Decision").
65. Christopher Lord & David Beetham, Legitimizing the EU: Is there a "Post-Parliamentary Basis" for its Legitimation?, 39 J. COMMON MKT. STUD. 443, 454 (2001).
66. See Neil Walker, Postnational Constitutionalism and the Problem of Translation, in EUROPEAN CONSTITUTIONALISM BEYOND THE STATE, supra note 40, at 27.
67. Joseph Weiler, In Defense of the Status Quo: Europe's Constitutional Sonderweg, in EUROPEAN CONSTITUTIONALISM BEYOND THE STATE, supra note 40, at 7.
68. See Renaud Dehousse, Beyond Representative Democracy: Constitutionalism in a Polycentric Polity, in EUROPEAN CONSTITUTIONALISM BEYOND THE STATE, supra note 40, at 135, 136, and 155 (attacking parliamentarianism as "orthodoxy... deeply anchored in western political culture" and "resting on a mechanical, transmission belt vision of public policy" that loses its plausibility once "a complex constellation of preferences and interests" are revealed to be behind "convenient abstractions").