European Legal Studies Center
In the constellation of international governance regimes, the European Union occupies a singular place, and not merely because it has recently engaged in the process of drafting a document whose title includes the words A Constitution for Europe'. Even if that particular document, or any such document, were never to see the light of day as a fully adopted and ratified instrument (an eventuality I consider to be unlikely), the EU will already have been constitutionalised, albeit in a fashion unfamiliar to those who, like most of us, are accustomed to the constitutions of Nation States. To claim that the EU may properly be understood as a constitutional experiment may be to push quite far the boundaries of what is an acceptable definition of a constitution, but that is what the EU experience challenges us to do.
One best begins by not even mentioning the terms constitution or constitutional, but rather by making a simple observation, albeit a seemingly paradoxical one. On the one hand, the EU has in various iterations – the original European Coal and Steel Community, the European Economic Community, the European Community, the European Union – travelled further along the road away from 'pure' intergovernmentalism than virtually any other international governance r6gime, and than one might realistically ever have imagined at the outset. No other international governance regime can even plausibly present itself as governing a 'polity', especially a polity in the most day-today, operational, 'business as usual' sense of the term.
And yet, viewed from a greater distance and over time, the EU does seem to be beset by a pattern of vicissitude and more than occasional crisis. Some of these vicissitudes and crises are not altogether unusual or atypical of constitutional r6gimes. (I think, by way of example, of the resignation of the Santer Commission under pressure by the European Parliament.) But others of them are more unusual, and their chronic character inevitably raises the question of just how much it is in the EU that has been 'constituted'. Surely the collapse last December in Brussels of the constitution-adopting project is one of those.
Editorial: The European Union as a Constitutional Experiment,
European Law Journal, Vol. 10, p. 363, 2004
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1333