Revisiting the Role and Future of National Constitutions in European and Global Governance: Introduction to the Research Project

Abstract

The Introduction provides an overview of the research project 'The Role and Future of National Constitutions in European and Global Governance', which was funded by a five-year grant of 1.2 million EUR, awarded by the European Research Council (ERC). The research findings are published in the present two-volume book, containing national reports from twenty-eight EU Member States, and a twenty-ninth reportfocusing on constitutional reforms related to global governancefrom Switzerland. The reports are based on the project Questionnaire. The main themes are threefold: (a) constitutional amendments with a view to EU membership; (b) constitutional adjudication at the national level regarding EU measures such as the Data Retention Directive, European Arrest Warrant and ESM Treaty; and (c) novel challenges that are increasingly highlighted in the wider context of global governance (i.e. beyond the classic international treaties that advance human rights, peace and environmental protection) in relation to democratic participation, judicial review and the rule of law. Whilst in the mainstream discourse national constitutions have typically

How EU Juridification shapes Constitutional Social Rights

“…This shapes both the nature of rights and the politics of social policy. Similar to the arguments above about how different socioeconomic policies and institutions shape the impact of law‐driven EU integration, recent legal research demonstrates that the impact of EU law on member states' constitutional law varies subject to their constitutional tradition (Albi and Bardutzky, 2019). This prompts the core question of this article; namely, how the EU juridification of rights challenges constitutional social rights norms associated with distinct constitutional traditions.…”

“…The power and effect of such constitutional principles depends also on the broader constitutional tradition in which they are embedded, which determines how the power to interpret these rights and the responsibility to protect them is distributed. The dominant constitutional traditions in Europe are legal and political constitutionalism (Albi and Bardutzky, 2019, p. 12–13; Castillo‐Ortiz, 2019, p. 51). This distinction also largely corresponds to the distinction between historical and revolutionary constitutions (Besselink, 2006).…”

“…Accordingly, a judicial kind of institution, typically a constitutional court, has the power to invalidate laws based on their being incompatible with the constitution (Castillo‐Ortiz, 2019, p. 52). These constitutions have often been enacted radically and in response to authoritarianism and totalitarianism in a way that has been formative for the state in question (Albi and Bardutzky, 2019, p.14; Müller, 2015, p. 22).…”

“…This is important not only for understanding how different ways of securing well‐being are changing in the context of EU integration, but also for understanding the impact that EU law has on national constitutional law. Though constitutions are often treated in mainstream EU discourse as relatively monolithic sets of instruments that primarily serve to protect sovereignty, bottom‐up perspectives can show that the effects of EU law on specific areas of constitutional culture vary (Albi and Bardutzky, 2019, p. 12).…”

“…As Castillo-Ortiz (2019) has argued, this distinction to some degree loses its distinctive meaning in light of the recent political appointments of judges to constitutional courts in member states like Poland and Hungary, subsequent to which these courts have become a device to circumvent constitutional constrains and concentrate power in the hand of the ruling political elites. Bearing this important caveat in mind, we nonetheless stick to this basic distinction as it is well established in constitutional theory Albi and Bardutzky (2019). also employ this distinction as a basis for deriving more specific sub-categories (pp.…”