In the early 2000s many people believed that European constitutionalism could push the integration project to a qualitatively new stage. Some understood the adoption of the Treaty establishing a Constitution for Europe by the high contracting parties in 2004 as the Union’s constitutional moment, realising their much wished-for utopia. Then the Treaty was rejected in the French and Dutch referenda and the European Council officially abandoned the ‘constitutional concept’. The kind of constitutionalism emerging from the last decade has lost its utopian character: the need to adopt a new constitutional settlement is seen not as a further step in European integration but as an obstacle better to be avoided. Do we need to care about this utopia then?
Utopias are crucial for preserving opposition to the status quo as aspirational schemes that seek actualisation. European constitutionalism is also an ideology, however: another component of constitutional imagination, whose role is to integrate individual subjects and their beliefs into a common whole. Ideology conceals the gap between political order’s claim to legitimacy and its subjects’ beliefs. This can be seen as indispensable to make the political rule possible – a ‘necessary fiction’, or as an instrument of domination.
In my view we need to maintain, to the extent it is possible, both views of ideology. We need to understand why, in the different periods of European integration, European constitutionalists hold particular views about the constitution (both conceptual, referring to the realm of constitutional theory, and empirical, related to their understanding of the ‘really existing’ constitution of the EU) – without interpreting them as ‘simply having been afflicted with psychological pathologies’, seeking power or even domination. When establishing the meaning (or meanings) of the European constitution, one needs to take their ideas as seriously as possible.
