5 Contemporary Constitutionalism
and the Rule of Law
.........................................................................................................................................................................................
The character and degree of moral and political consensus necessary to
support constitutionalism has emerged as an important question when
evaluating debates over supranational eVorts at constitution-making within
European integration. The process of proposing, drafting, and ratifying a
constitution for the European Union has exposed the tensions of reconciling
constitutions, as forming the legal basis of states, and international treaties as
forming the legal basis of supranational institutions. As approved in 2004 , but
still lackingWnal ratiWcation by all the present member states ( 25 ), the EU
constitution brings together collections of treaties and agreements on which
the EU is based, and determines the powers of the Union in terms of where it
can and cannot act without member states enforcing a veto. Deemed previ-
ously to have been already part of a ‘‘Constitutional Legal Order’’—and thus
to have demonstrated constitutionalism without a constitution—under the
2004 Treaty for establishing a Constitution of Europe, the EU has in addition
to its present European Parliament, a president, a foreign minister, a supreme
court, a civil service, aXag, and a community anthem (Weiler 1995 , 219 ).
Centralization will be increased and qualiWed majority voting 2 will legitimate
greater uniWed action with regard to immigration and asylum policy across
Europe. The EU will thus have ‘‘legal personality’’ in that its laws will trump
those of the national parliaments of the member states in the areas over which
it has been given policy jurisdiction. However, issues of national defense, of
explicitly national foreign policy, and of national taxation remain under the
control of individual member states. In addition, both critics and supporters
of the EU constitution have long recognized that this supranational form of
constitutionalism leads to a disconnection between three elements that
thinkers as far removed as Aristotle and Charles McIlwain have believed
foundational to the concept of a constitution: nationality, citizenship, and
national identity (Preuss 1995 , 280 ; Weiler 1995 , 219 ; Pitkin 1987 , 167 ). Thus the
diYcult questions associated with the character of a European demos or of
2 A qualiWed majority in the EU is deWned as at least 55 percent of the members of the Council,
comprising at least fifteen of them and representing member states comprising at least 65 percent of
the population of the Union. This system replaces an earlier federal one within the European Union
under which each country has a speciWc number of votes and seeks to represent a fairer balance
between smaller and larger member states.
constitutionalism and the rule of law 327