Reclaiming Constituent Power? Emerging Counter-Narratives of EU Constitutionalisation

• Applicants: Professor Dr. Peter Niesen; Dr. Markus Patberg
• Subject Area: Political Science
• Term: from 2016 to 2021
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 319145390

• Final Report Year: 2021

Final Report Abstract

This project has examined the meaning and salience of constituent power for the democratic legitimacy of European integration. To that end, we have identified public narratives that chal- lenge the standard interpretation of the European Union as a polity to be developed in an intergovernmental mode. The shared motif of these stories is opposition to the role of the member states as the ‘masters of the treaties’. All narratives insist that citizens have been illegitimately withheld the right to shape the EU. In dramatic plots, they explain why the time has come to reclaim constituent power. Drawing on competing political theories of EU democracy, we have developed the re- constructed narratives into four models of constituent power in the EU, thus outlining a new typology: regional cosmopolitanism, demoi-cracy, pouvoir constituant mixte, destituent power. The regional-cosmopolitan model holds that constituent power lies with the political community of EU citizens. The demoi-cratic model claims that constituent power is held by the peoples of the member states. The model of pouvoir constituant mixte argues that the EU’s constituent power is composed of European citizens and European peoples. Finally, the model of destitu- ent power attributes to a non-delineated multitude the right to dismantle constitutional struc- tures in the EU. Evaluating all models from the standpoint of democratic theory, the project has deter- mined their strengths and weaknesses. On this basis, and employing the method of rational reconstruction, we have developed a new theory of constituent power in the EU. This theory consists of, first, a new conceptual framework centred on the notion of higher-level constituent power; second, a systematic justification for the idea that the EU has a dual constituent subject composed of citizens all the way down; third, an account of extraordinary partisanship that addresses the problem of political agency; fourth, an institutional proposal for a permanent constitutional assembly as part of the EU political system. Finally, the project dealt with democratic problems of disintegration and the re-allocation of constituent power by means of sovereignty referendums, as they arose in the context of Brexit as well as the Catalan and Scottish independence movements. We have mapped the potential democratic costs and benefits of different types of EU disintegration (retreat, revoca- tion, exit, expulsion, dissolution) and have formulated criteria that allow to distinguish between pro tanto legitimate and illegitimate claims to constituent power in federative polities.

Publications

• (2017): Constituent Power in Global Constitutionalism. In: Lang, Anthony/Wiener, Antje (eds.): Handbook on Global Constitutionalism. London: Edward Elgar, pp. 222-233.
  Niesen, Peter
  
• (2017): The ‘Mixed’ Constituent Legitimacy of the European Federation. Journal of Common Market Studies 55 (2): 183-192
  Niesen, Peter
  
• Symposium 2017: The EU’s Pouvoir Constituant Mixte, Introduction. Journal of Common Market Studies 55 (2): 165-222.
  Patberg, Markus (ed.)
  
• (2018): Challenging the Masters of the Treaties. Emerging Narratives of Constituent Power in the European Union. Global Constitutionalism 7 (2): 263-293.
  Patberg, Markus
  
• (2019): Reframing Civil Disobedience. Constituent Power as a Language of Transnational Protest. Journal of International Political Theory, Vol. 15. 2019, Issue 1, pp. 31-48.
  Niesen, Peter
  
• (2019): Resistance, Disobedience, or Constituent Power? Emerging Narratives of Transnational Protest. Journal of International Political Theory 15 (1- Special Issue): 2-133.
  Niesen, Peter (ed.)
  
• (2020): Can Disintegration Be Democratic? The European Union between Legitimate Change and Regression. Political Studies 68 (3): 582-599
  Patberg, Markus
  
• (2020): Constituent Power in the European Union. Oxford: Oxford University Press
  Patberg, Markus
  
• (2020): Das Volk der verfassunggebenden Gewalt. Von Föderationen zu multinationalen Staaten. In: Bung, Jochen/Kuhli, Milan (eds.): Volk als Konzept in Recht und Politik. Berlin: de Gruyter, S. 73-97.
  Niesen, Peter
  
• (2021): The Democratic Ambivalence of EU Disintegration. A Mapping of Costs and Benefits. Swiss Political Science Review, 27 (3): 601-618.
  Patberg, Markus
  
• (2022) Two Cheers for Lost Sovereignty Referendums. Campaigns for Inde-pendence and the Pouvoir Constituant Mixte. German Law Journal , Vol. 23. 2022 , Issue 1 , pp. 44 - 55.
  Niesen, Peter