The Drafting of a Constitution for the European Union: Europe's Madisonian Moment or a Moment of Madness?

I. IntroductionThe European Union (EU) stands at the brink of a major decision about its political future-in what has been described as an Ackermanian constitutional moment in its history1-concerning whether it will enact a European Constitution. Over the past two years, the EU has spent a great deal of political energy debating and designing proposals for such a constitutional document. During the Intergovernmental Conference that will take place in late 2003 and early 2004, Europe's political leaders will decide collectively whether to endorse and recommend a final version of this document and will decide individually whether to consign it to a popular vote or other form of national ratification. Comparisons (both favorable and unfavorable) with the Philadelphia Convention and the adoption of the United States Constitution in 1787 abound.2 How is it that this apparently Madisonian moment has come about after more than fifty years of gradualist and incremental project-driven integration?This Article explores some of the different reasons and objectives that proponents have forwarded for adopting an EU constitution, and examines the results contained in the Draft Treaty establishing a Constitution for Europe as presented by the Convention on the Future of Europe in July 2003,3 to see which, if any, of these objectives that the text achieves. My argument is that of the many objectives that proponents suggested, there are essentially two primary, competing reasons that explain the decision to adopt a constitution. Although the political rhetoric surrounding the establishment of the Convention and the drafting of a constitution focused primarily on one of these objectives, the process has in fact produced a text whose main achievement is the other. More specifically, the rationale commentators most often articulate for the need for a European Constitution, and that on which the discourse of the participants in the Convention process mainly focused, was the internal legitimacy of the EU-the problems of democracy, decisionmaking, 'closeness to the citizen,' and the balance of power between the EU, the states, and their regions. However, the final text produced by the Convention is less concerned with addressing its internal crises and displays a much stronger orientation towards the outside world, particularly with strengthening Europe's international identity, unity and global role.II. The Emergence of a Constitutional DebateThe EU is an economic and political organization that has been in existence, albeit in changing form, for just over fifty years. During that time it has expanded geographically from six to (soon-to-be) twenty-five member states,4 it has deepened its level of economic integration with the establishment of economic and monetary union and a single currency, it has expanded into many new fields such as social, environmental and immigration policy, and it is gradually developing a capacity in political and foreign affairs. Yet, during these five decades, apart from within the specialized world of lawyers, who from the 198Os on have frequently analyzed the emergence and evolution of the European entity as a process of "constitutionalization,"5 the idea of a European Constitution was not a politically viable subject. Indeed, what lawyers meant by "constitutionalization" referred primarily to the process by which the European Court of Justice over time deemed provisions of an international treaty (the original EEC Treaty) to take primacy over national laws (the supremacy principle) and by which that court declared that provisions of the treaty could be directly invoked by individuals in their national and local courts (the principle of direct effect).7 No European political leader made any serious mention of the term 'constitution' until the surprising eruption in 2000 of an open debate, led by the German foreign minister Joschka Fischer,8 about the desirability or otherwise of a constitution for the EU, with virtually all of the major heads of state or government and many foreign ministers and leading political figures intervening to make a contribution to the debate. …