REVIEW #16: Value of Constitutionalism in European Union

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Olga Łabendowicz for 4liberty.eu Review

The European Union (EU) has been thriving for decades. A subtle yet important factor in its achievement of economic prosperity and further institutional integration has been the agreement on and commitment to upholding common values laid out in Article 2 of the Treaty on European Union (TEU), providing that the EU is “founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”

These provisions of the EU legal system are not only fundamental values in a constitutional democracy, but are also the founding values of the European Union. These values form the core of the institutional identity of the EU. 


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TANJA PORČNIK_THE VALUE OF CONSTITUTIONALISM IN THE EUROPEAN UNION


In the last decade, the European Union has seen an increasing number of attacks on, or even rejection of, some of these founding values by none other than democratically elected governments of EU member states. The opposition to these EU constitutional values was most explicitly and systematically formed by political elites in two member states in Eastern Europe (Poland and Hungary). 

The recent developments of constitutionalism backsliding pose risks of detrimental institutional effects not only on the political system and constitutional order of respective EU member states, but also on the EU itself. Unless each EU member state upholds constitutional democracy in their respective society, the European Union, as it is defined and constituted today, does not have a future.

For the European Union to persevere and keep thriving as a community of liberal societies and democratic political systems, it needs to show unwavering commitment to constitutionalism, which is defined by limited government and the rule of law.

In doing that, the EU needs to endorse liberal values and methodological individualism that underpin constitutionalism by reaching out to as many open minds as possible to embrace constitutionalism. Consequently, the European Union, as we know it, will survive or fall depending on the strength and robustness of constitutionalism in its member states.

On Constitutionalism

In the pursuit of better effectuation of the fundamental principles of the political regime, constitutionalism defines and delimits the political ends and means within the realm of politics by imposing constraints on the power of the state and the discretion of its government officials. With the aim to ensure that those who exercise state power in a constitutional state guarantee adequate legal protection and procedural respect of the fundamental principles, and not to infringe upon them, constitutionalism should be distinguished from the mere presence of a constitution.

A constitution may, or may not, provide effective constitutional constraints on the people in government. On the other hand, constitutionalism, when embedded into constitutional order and protected by actors in the political system, is an effective constraint on constitutional government.


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Tanja Porcnik
4liberty.eu