The main constitutional aspect of constitutionalisation

the requirement of referendums on a new constitution

Experience suggests that the consolidation of democracy occurs if [*]:

1. An assembly is convoked for the explicit purpose of drafting a constitutional document;

2. The members of this assembly are elected, not selected, but not automatically empowered to convert themselves into a regular parliament;

3. The decisions of this body are taken by the largest possible margin and not by some “minimal winning majority” according to the short-term, a historical logic of individualistic rational choice;

4. Its product is widely publicized and ratified by the citizenry as a whole, usually in a referendum;

5. Once it has been popularly ratified, the constitution is ceremonially promulgated, placed on public display and subject to periodic interpretation by a specialized juridical process.

In contrast with the case of democratic constitutionalisation, in the case of the Lisbon Treaty we find the following:

1. An assembly has NOT been convoked for the explicit purpose of drafting a constitutional document. None of the EU’s institutions have been publicly authorised to act so. The product of the former constitutional convent was rejected and it has never been declared that with the Lisbon Treaty the EU constitution will be redrafted in a new form. The drafting of the constitutional Lisbon treaty has been carried out in secrecy, not even revealing the very fact that it is a constitution.

2. The members of the assembly drafting the Lisbon Treaty were NOT elected but selected.

3. Neither the European Parliament nor any other body of the EU has been elected or specifically authorised by public voting to act as a constitutional assembly and to pass a decision regarding a constitution on behalf of the affected citizens.
None of the bodies of the EU have been authorised by the public to act as a constitutional assembly.

4. It is NOT publicised at all that the product drafted and accepted by the EU -the Lisbon Treaty- is a constitution. What is widely publicised by the “official” sources of the EU are statements desperately hiding the fact of the federal constitutionalisation by the Treaty. The presentation of this constitution hides its constitutional content and hides the system it designs.

5. Since the Lisbon Treaty has not been popularly ratified -on the contrary, it has been ratified against the popular will of the French and Dutch- any related ceremony is only to “celebrate” the abolition of Europe’s democracy.

[*] “Contrasting approaches to political engineering: Constitutionalisation & Democratization“, by Philippe C. Schmitter (European University Institute February 2001)

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