Looking at the general trend in normative scholarship on militant democracy, the traditional model of militant democracy appears increasingly outdated. ‘Neo-militant’ scholars engage very critically with the legitimacy costs of constraining anti-democratic actors. Another key difference with regard to militant democracy’s historical roots is that more recent accounts are departing from a deep scepticism of popular sovereignty and emotionalism, instead being supportive rather than sceptical of popular self-government via open, democratic procedures. This is a positive first step towards reconciling militant democracy and its prima facie restrictive nature with the inherently aspirational, dynamic and forward-looking character of democracy as a form of government. In this regard, a crucial question is how to reconceive militant democracy, both at the national and the EU-level, for it to have an enabling rather than restrictive or patronising effect on democratic self-government.
The interaction between national constitutional courts and the CJEU has never been easy. The issue of whether EU law takes precedence over national constitutions and who is competent to determine that has always been at the center of their discussion. Many constitutional concepts have now become part of EU law therefore this is the right time to shift from competitive to cooperative discourse. In view of illiberal tendencies, the CJEU and national constitutional courts even have a common responsibility to join their efforts in safeguarding the values of constitutionalism in Europe. Where the difference lies between “diversity” and “abuse”? Are national constitutional courts and the CJEU allies or enemies in safeguarding the values of constitutionalism in the EU? How to ensure that both courts act with the same systemic understanding in mind?
When the inertia of Parliament results in a legislative gap with respect to fundamental rights enshrined in the Constitution, one wonders whether the ‘Judge of the Laws’ in contemporary liberal democracies can fill that lacune in order to ensure an effective fulfilment of the Higher Law. In the absence of clear ad hoc rules, several legal systems witnessed the creation of mechanisms to rebuild constitutional rights in its fullest extent through different manoeuvres of procedural engineering performed by Courts. To what extent can constitutional courts use their powers to fix Legislatures’ omissions? Can this behaviour be considered judicial activism? Does it erode constitutionalism’s principles? As examples of transformative constitutionalism, German and Italian constitutional justice systems will be compared to try to find provisional answers to the above mentioned questions.
Consultive bodies play a balancing and moderating role in constitutional democracies. Despite their supportive and auxiliary nature, several constitutions across Europe concede these bodies the status of constitutional organs. However, even if governments are bound to request an advisory opinion there has been a decline in the level of observance and compliance with their recommendations. Thanks to their technical expertise decision-makers are supported by unelected actors that enrich their decisions with extra-political input that may alter the final outcome. Nonetheless, consultive organs lack the majoritarian character that derives from elections and their legitimacy. The main questions are: What is the role that consultive bodies play in European constitutional democracies, especially on executive decision-makers? What impact may deviating from consultive opinions have on constitutional erosion and degradation?