Constitutional pluralism beyond ideal theory

Constitutional pluralism was born in the days of liberal constitutional triumphalism, when the commitment of all actors to the values of liberal constitutionalism was uncritically assumed. But 25 years after its inception, these assumptions seem increasingly shaky. With the rise of authoritarian populism in parts of Europe, it has been argued that it is time to definitively replace pluralism with uncontested primacy of EU Law. However, the lack of constitutional consensus in the EU just as much erodes the assumptions underlying the demand for uncontested EU law primacy as those underlying some principled form of constitutional pluralism. I argue that, in the age of ‘constitutional bad faith', normative theory must be recalibrated: we need to shift from ideal to nonideal theory in thinking about the European legal order. We can no longer assume that all actors within the European legal order would feel addressed by our normative demands, and normative theory should reflect this.