The End of Judicial Constitutionalisation? (p135-155)

Summary: Conventional academic discourse, within both law and political science tells the story of how the European Court of Justice, though its judgments and judicial practices has ‘constitutionalised’ the EC Treaty, reformatting an intergovernmental bargain into a federal legal order. Many accounts have presented the Court as the heroic champion of integration, pushing the integrationist agenda forward when political channels are blocked, and integration through political and legislative means stalled. This article considers whether, in the period following the rejection of the formal constitutionalisation project, it is appropriate to look to the Court to step in and continue the drive towards further, deeper integration, and to further develop and entrench its own constitutional role. It is argued that such a view should not be too readily accepted, as it could be seen as affording too great a respect for the rhetoric of judicial constitutionalisation, which is presented as both fallacious and unhelpful, and as
affording insufficient recognition of the realities of the Court’s role as a legal institutional actor operating within a complex context in which it has limited autonomy.
The paper reviews existing academic assessments of the constitutionalising role of the Court, before considering the significance of the recently proposed Treaty changes to the role and position of the Court, which leads to a consideration of the limited prospects for continued judicial ‘constitutionalisation’ in the future.