Vol. 34 No. 03 (May 2024) pp. 23-25THE EU AND CONSTITUTIONAL TIME: THE SIGNIFICANCE OF TIME IN CONSTITUTIONAL CHANGE, Massimo Fichera. Edward Elgar Publishing, 2023. pp. 180. Cloth $115.00. ISBN: 9781789908992.
Reviewed by Nathan Griffith. Department of Political Science. Belmont University. Email: Nathan.Griffith@belmont.edu.
The EU and Constitutional Time is a normative and descriptive work, which is not a particularly felicitous combination. The book also suffers from a lack of clarity in organization and sometimes in substance, which makes it difficult to report on what exactly its thesis is, or how well the work supports it. This is especially problematic as normative rather than causal theory, since it makes it difficult to assess the reasoning (rather than evidence) that should support this vision of what should be over others.
The third chapter provides an excellent example to highlight both some of the excellent descriptive work and the visible seams in the organization. The title of the chapter is “The Rule of Law and Populism.” The first section of the chapter is “Recent Case Law on the Rule of Law/Democratic Backsliding and Comparison with the US Nullification Doctrine.” The six pages of that section give a clear, concise, and insightful account of the nullification dispute, from the Virginia and Kentucky Resolutions to Calhoun and Webster. Yet there is no definition of democratic backsliding, nor even an explicit use of the term until the penultimate sentence. There is no comparison of that constitutional debate (or even dispute) with recent EU case law or even recent events in the EU. Instead, the penultimate paragraph of the chapter begins with: “To a limited extent…some parallels can be drawn between the nullification crisis and the current state of affairs in the EU—as seen in Chapter 2” (p. 55). No parallels follow. The reference to the previous chapter does not help; that chapter was an abstract, theoretical discussion of how constitutions change through discursive constituent power. Nor is there a discussion of recent case law—though the section references cases involving Hungary and Poland, even the names of the cases appear only in the footnotes, and there is no further discussion of them or how they develop or illuminate case law.
The next section of the chapter is a discussion of populism. It is again in turns enlightening and disjointed or ineffective. The author presents a clear and concise summary of the critiques populism tends to make of liberal democracy, and relays (from Benjamin Arditi) perhaps the best metaphor for the role of populism in democracy, that of a drunken party guest who offends through both lack of manners and willingness to say what no one else will. But the author then repeats three more lists that mostly echo the first, without discussing how they relate or differ.
He claims that “none of the main tenets of populism are necessarily in contradiction with EU constitutionalism as such,” (p. 58) when the tenets involve the will of the people, where people is restricted to “authentic” people, whose sovereignty should not be circumscribed or circumvented. This rather stretches the meaning of “necessarily,” as “authentic people” has often, if not uniformly, been defined in populism to exclude at least foreigners, and a transnational constitution must limit national sovereignty (much as the federal one did state sovereignty in the US) if it is to have any meaning—and that transnational institution will, of necessity, involve foreigners implementing those constraints.
In fairness, perhaps the author means that an EU populism is possible, much as the construction of a national identity over time made populism possible at the national level in the US. If so, it would first require the construction of an EU national identity. What seventy years has not accomplished should not be assumed so off-handedly, not to say tacitly, without even an acknowledgment of the challenge or likelihood of overcoming it.
In terms of structure, then, the book seems less like a coherent or cohesive whole and more like a quilt made of stitching pre-existing work together. In non-metaphorical quilts, however, the threads are easier to find and follow. If pressed to give a thesis for the work, the best I could do would be simply that time matters. If pressed for something less vague, I would turn to this quote: “…it is only by looking at a gradual, incremental process of (self-) constitutionalisation that it is possible to understand the transformation of the EU from a common market into an area of freedom, security and justice…” (p. 36).
While that may be a thesis, I cannot call it the thesis of this work. It is a claim—one of many in the book—but it is hardly central. If it is the thesis, it is not explained, not justified, and not tested. Its performance is not compared to that of other explanations, whether neofunctionalism, or intergovernmentalism, or multi-level governance. (The author uses the term “heterarchy,” and while it is not clear if it is meant to be the same as multi-level governance, or to be distinct from it in some fashion, one might hope that this more elegant term would supplant the other.) In fairness, the author does not promise testing—he says, at least in regard to the second chapter, that “an explicit normative angle is adopted, based on methodological openness” (p. 26). Whatever “methodological openness” may mean, it does not seem to entail either rigorous logical examination or empirical falsification.
In fairness, perhaps the clear statement of a thesis comes in the last part of the book. Having gone through most of it without the guidance of a clear statement or organization of the ideas, I finally surrendered before finishing it. The author spends time in the second chapter discussing the idea of discursive constituent power. In keeping with the theme of organizational opacity, the term is used several pages before being defined (and then more discussed than defined). Though I cannot find a clear statement of how this idea relates to the theme, it seems, in hindsight, to be central.
This idea is that the people create the meanings of words through discourse, that a meaning of these words is agreed to at the time when institutions (like constitutions) are created, but that the discourse must continue. Through this discourse, the institutions are renewed or renovated. For example, the meanings of words in constitutions are constantly redefined, adapting the constitution to changes in community values. Though the idea of discourse is dropped after that chapter, this seems to fit with the idea of populist criticism—that redefining institutions rather than replacing them allows both the stability of continuity and the flexibility of adaptation to new values. This seems to be the process the author would use to describe the process of European integration.
It is difficult to reconcile that with an embrace of populism as a source of criticism and, therefore, renewal. A central tenet of populism is that the popular will should not be defeated. The point of a constitution is to limit the popular will so that it does not eat its young. In other words, there are values that a constitution enshrines, such as self-restraint and respect for the limits laws make. Observing these limits is what enables us to live together in peace; your right to swing your fist stops where my nose begins, as the old saw goes.
Constitutions only make sense in a classical liberal sense—at least, as limitations of power. In other theories, they are simply the government giving you fair warning about what they are allowed to do to you. When the values that underpin the classical liberal constitution—ordered liberty, observing boundaries between the rights of individuals, as well as between individual rights and government power—are removed, the nature of democracy changes. Rather than restrain the majority to protect the individual, it enables the majority to coerce the individual. It becomes naked, tyrannical force cloaked in the language and legitimacy of liberty.
In other words, there are shifts in values so significant that they do not simply alter the system. Instead, they destroy it, only to use its lifeless hulk to stalk prey—the wolf in sheep’s clothing. The author does not seem to recognize this boundary, that liberal democratic values are what allow the discourse to continue. At least, it is not evident in his explanation of discursive constituent power.
This book is, in the end, thought-provoking. Unfortunately, it is the flaws that provoke the thoughts—in the effort to clarify and understand the ideas, rather than as result of the ideas themselves. Its focus is on stating the author’s beliefs—in fact, I more than once questioned whether the work was better described as a credo—is ultimately a disservice to them, as the interlocution with other ideas prompts more careful definition and explanation. Instead, it is part of an interesting dinner conversation, the part of the guest who leaves no space for others to join in the discourse.
© Copyright 2024 by author, Nathan Griffith.
