This paper will claim that despite the negative experience from the past nothing in the nature of constitutionalism as a concept stands in the way of the European Union eventually adopting a constitution. Of turning the EU tacit and silent constitutionalism into an explicit one. What is more, the past crises of European integration, which have been more in suspense rather than resolved, might make the case for explicit constitutionalization of the EU even stronger. While it is thus by no means certain that constitutionalism is a normatively and empirically viable alternative for shaping the future of the European Union, and while this cannot be known until it is tried, the paper will claim, in conclusion, that there are indeed good reasons to try it again, at least as a ‘thought experiment’. Eventually it will be for the political process and its pragmatic considerations to decide whether to cope with constitutional problems of the EU explicitly in a constitutional way or not.
There is serious EU law scholarship arguing against defending the EU values towards backsliding Member States, such as Hungary. It is, inter alia, invoking the need to respect domestic democracy and national identity. This paper argues that there is hardly any democracy and genuine national identity left to be respected in Hungary anymore. Its regime of ‘illiberal democracy’ isn’t just illiberal, […], it isn’t democratic either, because the outcome of the elections are not uncertain anymore. The current Hungarian government also abuses the concept of national constitutional identity referred to in Art. 4(2) TEU, justifying non-compliance with the values enshrined in Art 2 TEU by referring to national sovereignty. Since there is neither democracy nor genuine national constitutional identity to respect in Hungary not defending the joint values of the Union means to protect a one-party regime in a Member State, and giving up on the idea of the EU as a community of values.
Despite all theoretical and institutional efforts, the core of EU constitutionalism today is more than it has been since the time before Maastricht intergovernmentalism. The problem with this are manifold. There are immanent general deficits of a system that claims to be supra-national, yet operates often like an enhanced international organization. There are also specific practical problems like the lack of trust between the member states, and the instability of member state coalitions. One core implication of this is that the EU today is the most advanced governmental unit in the world without a government. The mismatch between the many competences “the EU” has and the lack of institutional unity the EU represents is the core problem of its constitutional structure.
The rejections of the Constitutional treaty in 2005 was a not a
constitutional moment. It was a contrived top down attempt to generate
popular endorsement for modest progressive developments, which took place anyway in the home of the Lisbon Treaty. Today we have public officials and leaders downplaying a moment where there are generally fundamental constitutional issues to be resolved: They relate to finance and solidarity, immigration and belonging, as well as peace and defense in Europe and the World.