Toward a European Bund. The Constitutionalism Deficit of Integration and How to Fix It

This dissertation examines the nature of the European political and legal order and evaluates it in light of the principles of liberal and democratic constitutionalism. The EU, I argue, has features of both an international organization and a heterarchical federation, or Bund, in which neither the units nor the center are sovereign and the member state peoples retain their independent political existence. Due to its peculiar hybrid character, the status quo has a constitutionalism deficit: enforcement of formal competence limits is weak, the legislative process is undemocratic, and the European Court of Justice wields too much unchecked power to elaborate the content of basic rights. Adequate reform would eliminate residual features of the international organization model and establish a proper Bund. The dissertation examines how this political form differs from a federal state and provides normative reasons to prefer a heterarchical solution. I further contend that in a possible future Bund, domestic parliaments should have a stronger oversight role. The European Parliament might then still have a supporting function, but direct election would no longer be useful and indeed counterproductive. Last, the dissertation argues that if a federal compact were agreed upon, the best ratification method would be to hold national conventions, similar to the state assemblies that ratified the US constitution. This procedure is superior to both a national referendum and a vote of the domestic parliament.