Alexander Somek: “Constitutionalization”: A second look at a dogma

Ostensibly, we owe it to Eric Stein and to Joseph Weiler that we have come to perceive the path taken by the EU as a “process” of “constitutionalization”. This interpretation has risen to the level of a dogma of EU law studies. It is based on the idea that a constitution is higher law. But this is questionable. Many things are higher law, and what is higher law vis-á-vis other law is always relative. Owing to the dogma we Europeans turned Marshall’s core idea (law that is constitutional law ought to be higher law) upside down. It is not the case that anything that is higher law is therewith already constitutional law. This is a mistaken belief that is now common sense in Europe. Indeed, it may well be a scandal that to treat that which is not a constitution as higher law in Europe. EU law has come to be what it is in without originating from what Bruce Ackerman would call “higher-law-making processes”. Instead, is the product of judicial fiat and cunning member state acquiescence.