Functional constitutionalism in the European Union

Note to readers: This is the second chapter of a book manuscript entitled Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State. The manuscript considers the question of adapting constitutionalism as a form of political and legal ordering to postnational institutions of governance in light of the EU’s legal system. It argues, more specifically, that the EU instantiates a new model of constitutional rule, which I propose to term “functional constitutionalism.” Constitutional theorists tend to think of constitutional authority as deriving from two key principles: democratic self-­‐rule and individual liberty. Although the EU has many of the features of a constitutional system, it derives its authority from neither of these principles. Instead, its claim to bind member states and their citizens is based on a logic of effective government: the delegation of governance tasks to supranational institutions is commonly viewed and justified a way of responding to policy challenges and systemic imperatives that member states cannot address acting singly. In the first chapter, I argued that this power-­‐building logic is prominent in other, domestic instances of constitutional rule, drawing on work by North and Weingast, Holmes, Elster, and others on the enabling nature of sovereign commitment. In the second chapter, included below, I argue that the EU prioritizes this power-­‐building logic as the primary normative justification for the extraordinarily wide scope of authority wielded by supranational institutions. The chapter explains why the EU legal order should be considered an instance of a) functional b) constitutionalism