Contemporary European constitution-making: constrained or reflexive?

Abstract

The overarching question that informs this chapter is whether the Laeken process (after the Laeken Declaration of 2001 that gave the Convention its mandate) has managed to come up with a solution to the EUs legitimacy deficit. My focus here is on the Convention and I seek to establish which legitimation strategy the Convention exercise is reflective of. In the chapter I present and evaluate the Convention exercise in relation to four legitimation strategies. The strategies are all based on deliberative theory, but vary with regard to the deliberative virtues that they privilege, i.e., epistemic, transformative, and moral. Each strategy is developed so as to yield a diagnosis of the EUs legitimacy deficit, which serves as a focal-point for assessing the purpose of the reform; a depiction of how the strategy envisages the reform body and the reform process; and a characterization of the constitutional nature of the output. I find that the Convention was able to tap the virtues of democratic deliberation to an unprecedented degree in EU constitution-making, and the draft also moved the process of constitutionalization forwards, as it holds numerous provisions that will strengthen the EUs democratic quality. The EU has adopted an approach to constitution-making that has become increasingly reflexive, although its gradualist approach is still embedded in a framework with strong built-in safeguards for member states, so that the results are curious mixtures. Reflexivity constrained is the most appropriate label for this.