The Nemesis of European “Constitutionalism”: Peter Lindseth’s Power and Legitimacy

Lindseth’s claim in his new book is simple, intriguing, and surely will be seen as radical by most European law scholars: the European Union (EU) should be studied as an administrative rather than a constitutional project. Instead of reading the Lisbon Treaty as Member States’ acquiescence to a European constitutional order – one in which EU law is paramount and European Courts are empowered to strike down national legislation – Lindseth takes up Giandomenico Majone’s challenge from the early 1990s, to reconceptualize the EU as a “fourth branch of government.” But Lindseth then explores this redefined EU – most importantly its dynamic relation with its Member States – in significantly greater legal-historical depth.

In particular, Lindseth argues, the States’ reaction to the growth of EU regulatory power, a mix of acceptance and resistance, should be seen as a form of “reconciliation” or redefinition of European powers by domestic governmental and judicial bodies. European legitimacy, in his view, springs not from the Court’s purported neutrality and independence, but rather from these different moments of reconciliation between Brussels and national agencies, administrative tribunals, and constitutional courts.

The book openly rejects the powerful narrative of European constitutionalism, which has conventionally portrayed the EU as firmly set on a clear trajectory: departing from a mere intergovernmental organization, transforming itself into a supranational entity and finally achieving a more democratic constitutional union. The dominance of this view among EU scholars is self-evident: for over two decades the legal integration of Europe has triggered many interesting and different projects. Lacking Lindseth’s rich comparative and historical account of European integration, however, such projects have all been straitjacketed by a rigid constitutional narrative for Europe.

In the early 1990s, Joseph Weiler’s Transformation of Europe successfully framed the EU as a constitutional or quasi-federal union so that subsequent scholars felt constrained to make explicit or implicit references to US constitutionalism. In addition, scholars suggested that European constitutionalism was promoted silently by the European Court of Justice through the supremacy and direct-effect doctrines that ultimately were accepted, albeit not without resistance, by the Member States (Slaughter and Mattli, Alter). The academic focus was therefore fixed on Brussels, the Commission and the European court, rather than on the public and private legal orders of the Member States.

In the late 1990s, another strand of constitutionalism began addressing European governance as legitimated by its self-standing power rather than as a product of Member States’ delegation (Sabel, Simon, Gerstenberg, Cohen). In this strand, European constitutionalism was moving beyond courts and looking at new deliberative fora whose production of soft law and policy guidelines became an exemplary form of governance and a response to the failures of representative democracy. Constitutionalization became synonymous with the Europeanization of regulatory regimes going beyond the economic sphere, and increasingly encompassing social and civil rights. From a descriptive project, European constitutionalism became a normative one, insofar as academics were ambitiously attempting to solve pressing democratic and social problems.

In the post-Lisbon scenario, however, European constitutionalism has lost much of its appeal: Power and Legitimacy represents its nemesis. Scholars are reminded by Lindseth that relatively autonomous EU bodies draw legitimacy from the judicial, executive and parliamentary mechanisms set in place by each Member State. Therefore Lindseth sets a timely and important scholarly agenda calling for a more penetrating analysis of European integration, its past and its future, through a careful understanding of what ideas were received and promoted by political and legal elites and what were the unintended consequences of the integration process. In Lindseth’s view the “reconciliations” between the Member States and Europe are ongoing, complex legal and political battles fought by administrative and judicial bodies addressing the disconnect between multiple regulatory powers and the need for democratic recognition.