Constitutional change as constituent process: a transnational opportunity

Much theoretical effort has recently been spent on the gap between the so-called democratic erosion/deficit and the non-seemingly stronger evolution and diffusion of constitutionalism both within and without the borders of nation-states. This research often starts from criticalities internal to constitutionalism, such as the lack of democratic credentials or the low epistemic impact of judicial review on the wider society, or those identity-based claims of authority, which could justify democratic backsliding in a context of constitutional pluralism - as in the emblematic case of Hungary and Poland. Several contributions come from the republican/participatory approach to democratic constitutionalism, seeking major and renewed popular engagement in processes of public reasoning, both in ordinary politics and constitutional change. The present paper however argues that these very political demanding approaches have been mostly limited to the national dimension, often swinging from dualistic systems between a ‘higher’ public reasoning and popular participation to constitutional change, and a monistic view of the latter. They overlook the democratic and constitutional potential of transnational entities such the EU in implementing a different kind of constitutional change: considering the enlargement and multiplication of public reasons, the opening of the respective national spheres, the paper adopts a deliberative constitutional approach which envisions an institutionalised and permanent constituent process. Against this background, this paper does three things: firstly, it provides a state of-the-art of recent contributions on political demands of popular constitutionalism; secondly it proposes an idea of institutionalised constituent process to be hinged in the new European political space; ultimately, this constituent process may both apply to recent experience where an idea of permanent deliberative process was at least hinted – Conference on the future of Europe – and as a regulatory and distinctive ideal to explain how transnational constitutionalism guides constitutional change beyond national borders.