Taking "Constitutionalism" and "Legitimacy" Seriously

"The recent debate surrounding the ‘Treaty Establishing a Constitution for Europe’ and the following ‘Lisbon Treaty’ has been framed around the question‘constitution Yes or No’ and the language of constitutional and legitimacy theory. This paper argues that we should not discuss whether the EU has a ‘formal’ constitution or not, but rather whether the EU treaties embody the principles of ‘constitutionalism’ as developed by the European enlightenment tradition. These principles include ‘limited government’, ‘bill of rights and judicial review’, ‘checks and balances and separation of powers’, and, last but certainly not least, ‘the normative construction of political responsibility’. Judged by these standards, the EU treaties, independently of whether we call them, collectively, a ‘constitution’ or not, are definitely defective on ‘constitutionalist’ grounds because they very poorly substantiate these fundamental principles.