A Polity without a state? European constitutionalism between evolution and revolution

Abstract

In this paper the relationship between constitution and state is analysed. The EU's constitutional structure is evaluated according to three ideas of constitutionalism: the evolutionary or functionalist idea; the power-binding idea; and the power-establishing or revolutionary idea. It is found that one can claim that the EU has a constitution both in functional and power-constraining terms. What is lacking though is the revolutionary idea of a democratic constitution made by the people, facilitated through strong publics and authorised through general public debate. It is not the conventions of an elite remote from the public but only the citizens themselves who can turn the legally existing constitutional text books against the imperial and hegemonic reality of European law.