Unconstitutional Constitutional Amendments: the case of the European Union

This paper explores ‘unconstitutional constitutional amendments’ within the EU. This is a topical issue given both the challenges to the ‘constitutional equality’ of Member States from the economic crisis, and the rule of law crisis across Europe. One could question whether fundamental constitutional ideas such as State equality and the rule of law are of such weight as to operate as limits to future amendments to the Union legal order.
Such ideas highlight unsettled questions about the nature of the EU legal order. Are the Member States ‘the masters of the Treaties’? Or is there a role for European Court of Justice to enforce (and perhaps to recognise) substantive limits to amendment?
The paper thus captures the political reality of EU amendment. It challenges the idea that ‘hard’ public law concepts of ‘unconstitutionality’ can address seemingly intractable political problems. Indeed, the current crises are rooted in concerns over sovereignty, national identity, and economics.