Unconstitutionnality Unchained: The End of Liberal Economic Constitutionalism

My paper argues that economic constitutionalism needs a paradigm change. Liberal economic constitutionalism is a rather recent phenomenon in Europe. Only the Maastricht Treaty introduced a new liberal constitutional paradigm into the economic constitution of the EMU, and the related Maastricht Judgment of the BVerfG instilled the expectation that courts would guard the economic constitution. The liberal constitutional paradigm reached a dead end in the Euro Crisis. The FCC managed to divert the blame for the disappointment caused by the liberal constitutional paradigm to the ECJ, the ECB, and the government. The idea of unconstitutionality therefore plays a key role in what is becoming Germany’s equivalent to the Brexit debate. Nevertheless, fully “reparliamentarizing” economic governance, including the ECB, seems unhelpful. Instead, a combination of goal definition, technocracy, political and judicial control might be more promising. It requires rethinking ECB independence, though.