The absence of political constitutionalism in the EU: three models for enhancing constitutional agency

Abstract

This article argues that EU constitutionalization has taken place in the absence of political constitutionalism. This concept is defined as the ability of citizens and member states to act as ongoing constitutional agents in determining the evolution of individual rights and national prerogatives. A historical comparison with Swiss and American constitutional development is used to show the development of two forms of political constitutionalism: respectively, direct democracy and presidentialization. These mechanisms allowed territorial units and citizens to influence major constitutional debate outside parliamentary channels. However, attempts to replicate these forms of political constitutionalism in the EU are impractical and undesirable because they fail to respect the political equality of member states and citizens. A more promising avenue is the development of ‘politicization' by providing an opportunity to oppose EU policies via national parliaments and civil society. Indeed, engendering constitutional agency can create a novel democratic bond across demoi.