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Integration by constitution

Dieter Grimm*

1. The normative and symbolic effects ofconstitutions

When we speak of the integrative function of constitutions, we are referringto the extralegal effects of a legal object. It is essential to keep these conceptsdistinct. The object—the constitution—is a special set of legal norms that dif-fer from others in terms of their subject matter and status. With regard to sub-

ject matter, these norms regulate the creation and exercise of political power. Instatus, they take precedence over all other legal norms. The effect—integration— is an actual process by which the members of a polity develop a communal spiritand a collective identity that differentiates them from other polities. In this sense,integration may be viewed as the condition for both unity and collective actionin polities that do not endeavor to eliminate forcibly the plurality of opinions andinterests existing within them.

The question is whether constitutions can have such an integrative effect and,more specifically, whether we can expect a European constitution to foster theintegration of EU citizens. The answer depends on how one characterizes themethod by which social integration takes place.1 According to action theory,social integration is primarily promoted by values and norms that are acquired ina socialization process, influencing the behavior of a society’s members.According to systems theory, the constraints that are most decisive are thoseimposed by the society’s various functional systems. These systems determine

individual behavior to such an extent that little room is left for norm-related moti-vation. Depending on one’s approach, the integrative effect of constitutions mustbe sought either in the area of systems development and coordination or in thatof value determination. There is, however, a link between these two approaches if one admits that systemic constraints do not completely determine the fulfillmentof social functions but, rather, leave space in which normatively influencedattitudes gain significance.2

I·CON, Volume 3, Numbers 2 & 3: Special Issue May, 2005, pp. 193–208 doi:10.1093/icon/moi014© Oxford University Press and New York University School of Law 2005. All rights reserved. For permissions

please email [email protected]

* Dieter Grimm, professor of public law, Humboldt University, Berlin; rector, Wissenschaftskolleg zu Berlin;

distinguished member, global law faculty, NYU School of Law; former justice, Federal Constitutional Court

of Germany; email: [email protected]

1 BERNHARD PETERS, DIE INTEGRATION MODERNER GESELLSCHAFTEN [THE INTEGRATION OF MODERN SOCIETIES]

(Suhrkamp 1993); DEMOKRATIE, VERFASSUNG UND NATION. DIE POLITISCHE INTEGRATION MODERNER

GESELLSCHAFTEN [DEMOCRACY, CONSTITUTION AND NATION. THE POLITICAL INTEGRATION OF MODERN

SOCIETIES] (Jürgen Gebhardt & Rainer Schmalz-Bruns eds., Nomos 1994).

2 Dieter Grimm, Welche Elite für welche Gesellschaft? [Which elite for which society?], in

BÜRGERGESELLSCHAFT. WAS HÄLT UNSERE GESELLSCHAFT ZUSAMMEN? [CIVIL SOCIETY. WHAT HOLDS OUR SOCIETY

TOGETHER?] 81 (Eduard J. M. Kroker & Bruno Deschamps eds., Societäts-Verlag 2002).

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194 Keynote essay

As the embodiment of the highest-ranking legal norms, the constitution isprimarily intended to produce normative effects. It constitutes the publicpower of a society that has resolved to form a political entity, and it determines

how this power is to be organized and exercised in the expectation that in sodoing it best serves the needs and convictions of the polity. As a result, consti-tutions always claim that the political order established by them is “good” and“just.” For the public authorities that it forms, the constitution functions asa standard of behavior. For the controlling organs and the general public itfunctions as a standard of judgment, allowing them to see whether behavioralcodes have been observed or violated. Violations of the constitution may, of course, still occur. However, the constitution allows for a distinction to be made

between lawful and unlawful claims to power or acts of governance, and itregulates the consequences of any unlawful exercise of power.

This results in a variety of advantages that make the constitution one of human civilization’s great achievements.3 One principal advantage is that itenables political power to be exercised not despotically but according to a set of rules. These rules make state actions predictable and give citizens a funda-mental feeling of security in their dealings with officeholders and publicauthorities. Another advantage is that—due to the distinction betweenthe rules for political decision making and the political decisions themselves—

certain fundamental values and procedures are excluded from day-to-daypolitical debate and are employed, instead, as a common basis for rival politi-cal forces. This allows society to resolve political conflicts peacefully and toreplace governments without the use of force. Finally, by distinguishingbetween long-term principles and day-to-day decisions, a constitutionregulates how a society adapts to changed conditions and thus, reconcilescontinuity and change.

Precisely as a result of its bestowal of these benefits, a constitution is subject

to expectations that extend far beyond its normative regulatory function. Peopleexpect the constitution to unify their society as a polity, thereby transcendingthe differences of opinion and conflicting interests that exist in all societies. Theconstitution is regarded as a guarantee of the fundamental consensus that isnecessary for social cohesion.4 If a constitution is successful in this respect, itcan even help shape a society’s identity. The constitution then serves as a

3 Niklas Luhmann, Verfassung als evolutionäre Errungenschaft [Constitution as evolutionary

achievement], 9 RECHTSHISTORISCHES JOURNAL 176 (1990); PETER HÄBERLE, VERFASSUNGSLEHRE ALS

KULTURWISSENSCHAFT [CONSTITUTIONAL THEORY AS CULTURAL SCIENCE] 28 (Duncker & Humblot 1998);Dieter Grimm, Ursprung und Wandel der Verfassung [Constitutional origins and change], in

HANDBUCH DES STAATSRECHTS, VOLUME I [MANUAL OF PUBLIC LAW, VOLUME I] 17 (Josef Isensee &

Paul Kirchhof eds., 3d ed., C. F. Müller 2003).

4 HANS VORLÄNDER, KONSENS UND VERFASSUNG [CONSENSUS AND CONSTITUTION] (Duncker & Humblot

1981); see also INTEGRATION DURCH VERFASSUNG [INTEGRATION BY CONSTITUTION] (Hans Vorländer ed.,

Westdeutscher 2002); but see Ulrich Haltern, Integration als Mythos [The myth of integration],

45 JAHRBUCH DES ÖFFENTLICHEN RECHTS NF 31 (1997).

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D. Grimm 195

document in which society finds its basic convictions and aspirations expressed.This aspect of a constitution can be termed its integrative function.

Yet, the normative and the integrative functions are fulfilled on different

levels. The processes of constituting, legitimizing, and regulating publicauthority take place on a juridical level. The constitutive function is fulfilled bythe very existence of the constitution. It is what it exists for: creating and reg-ulating public authority that did not previously exist or did not exist in thesame form. The same is true of its legitimizing function, as the constitutiondefines who is entitled to wield political power. The constitution’s function as astandard of behavior and judgment is no different. The constitution sets outthis standard, conferring upon it a legal validity that is independent of

whether or not the standard is actually followed. Individual violations of a lawdo not invalidate the constitution. Its effect consists in allowing people to deter-mine what behavior is lawful or unlawful and in attaching legal consequencesto these qualifications.

The question is now whether the integrative function of a constitution is of the same nature as the normative. Is this function an inevitable product of aconstitution’s very existence? Skepticism appears justified. A recentlypublished book entitled Was hält die Gesellschaft zusammen? (What HoldsSociety Together?) does not even mention the constitution as an integrative

factor.5 Indeed, history offers many examples of constitutions that have failedto contribute to social integration. A prime example is the Weimar constitu-tion, which not only failed to integrate but actually drove Germans apartduring the transformations following World War I. On the other hand,one cannot deny the considerable integrative power of many constitutions.The best example of this is the United States Constitution, which is seen bymany as the veritable embodiment of the national myth.6

While constitutions—provided they are intended to operate as legally binding

texts—automatically produce normative effects, their integrative influence is adifferent matter. Taken together, the examples of Weimar and the U.S. show thatthis influence can, but need not, exist. The reason is that the process of social inte-gration does not unfold on a normative level. Integration takes place in the realworld. It is a social process that can be promoted by the constitution but is notcontrolled by it. This limitation is generally characteristic of legal norms. Lawscan influence, but never determine, such processes. This is true even if, in the

5 WAS HÄLT DIE GESELLSCHAFT ZUSAMMEN? [WHAT HOLDS SOCIETY TOGETHER?] (Wilhelm Heitmeyer ed.,Surhkamp 1997); see also WAS TREIBT DIE GESELLSCHAFT AUSEINANDER? [WHAT DRIVES SOCIETY APART?]

(Wilhelm Heitmeyer ed., Suhrkamp 1997).

6 William Y. Elliott, The Constitution as the American Social Myth, in THE CONSTITUTION RECONSIDERED

209 (Conyers Read ed., Harper & Row 1968); HANS KOHN, AMERICAN NATIONALISM: AN INTERPRETIVE

ESSAY 8 (Macmillan 1957); SAMUEL P. HUNTINGTON, AMERICAN POLITICS: THE PROMISE OF DISHARMONY 30

(Belknap 1981); Frank J. Schechter, The Early History of the Tradition of the Constitution, 9 AM. POL.

SCI. REV. 707, 713 (1915).

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absence of voluntary compliance, legal rules are implemented by force. In thiscase, the use of force can be ordered. However, since such commands are exe-cuted in the real world, they will only be successful if government officials are

both willing to follow the law as well as able to break the resistance of thoseaffected by the law.

In contrast to those actions that can be legally ordered and, if necessary,implemented by force, integration as a collective mental process cannot evenbe ordered by law. A norm that would require a constitution to have an inte-grative effect would be a norm without regulatory value. And a regulationforcing constitutional integration upon its citizens would be truly in vain.Thus, a constitution may fail to have an integrative function despite its legal

efficacy. This failure need not result in disintegration, since the constitution isnot the only integrative factor in a polity. Other factors, such as nationhood,religion, history, culture, or a common enemy, have more reliable integrativeeffects than the normative constitution and may therefore liberate it fromextralegal expectations.

The European Union, however, is at a particular disadvantage compared withnation-states because the nonlegal integrative factors within its borders arepoorly developed or lacking altogether. This explains the current desire for a con-stitution. The stakes become particularly apparent when we ask why a constitu-

tion is currently considered so urgent even though the European Union hasmanaged for fifty years without one. The fact that the EU has existed for so longwithout a constitution does not mean it has not had a basic legal framework— quite the opposite. It has had one from its very inception. However, in contrast tothe basic legal framework of nation-states, the legal framework of the EU isfounded on international treaties. If these treaties have at times been described asconstitutions, we must see this as an analogy rather than a reality. The treatiesfulfill some legal functions that, in nation-states, are assigned to the constitution.

Yet, for some time now, many have viewed this basic legal framework asrequiring reform. There are two main reasons for that. First, since theupheavals in 1989–90, the role of Europe on the stage of world politicshas been transformed, but its restricted capacity to act in the area of foreignand security policy has left it poorly equipped to face the challenges. Second,and above all, it was the admission of ten new member states in May 2004 thatmade structural reform necessary in EU bodies and decision-making processes.For a long time now, there has also been a call for a clearer definition of the

jurisdiction of the EU and its member states. The intergovernmental conference(IGC) that negotiates changes to the treaties foundered on precisely this point.Therefore, it assigned the creation of a draft to a convention—a model thathad proved successful with the EU Charter of Fundamental Rights.

It is important to notice, however, that the need for institutional reform doesnot imply the transition from treaty to constitution. Just as all previouschanges to the legal foundation of the European Union were carried outwithin the framework of its treaties, the required reforms could have been

196 Keynote essay

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implemented by changing the treaty texts as well. None of the essential ordesirable reforms depended on the translation of the treaties into a constitu-tion. Neither the content of the regulations nor their rank in the hierarchy of

norms would have differed in a constitution. From a legal viewpoint, the formof a treaty did not preclude any reform measure; neither did the form of aconstitution add anything to the legal validity of the reforms. Hence, legalconsiderations did not make a constitution necessary. For this reason the IGCleft open the question of “treaty versus constitution” in its assignment to theconvention.

This means that there must be other reasons why the demand for a consti-tution won out in the convention. Since these reasons had nothing to do with

legal necessity, we must search for them on the integrative level. One crucialfactor has been the European Union’s undeniable weakness when it comes tolegitimating itself. The European project is losing support and is met with grow-ing skepticism among its citizens. A divide is opening up between economic andpolitical integration, on the one hand, and social integration, on the other.Eurobarometer surveys reveal that the majority of EU citizens now believes thatthe EU’s disadvantages outweigh its advantages.7 The voter turnout at theEuropean Parliament elections left the impression that EU citizens do not viewthe European Union in its present form as their “business.” Brussels is thought

of in terms of its weak ties to its citizens, not as a beacon of unity.The European Union and its member states cannot remain indifferent to

these developments. Certainly, there are some who assert that the integrationof systems in Europe is so far advanced that the success of the EU is notdependent on social integration. Meanwhile, today’s problems are no longeronly economic but are political in nature, as well, and cannot be resolved onthe basis of the functional constraints of market integration alone (as thequestion of Turkey’s accession and the enlargement of the European Union

have shown).8

The lack of social integration is increasingly proving to be anobstacle to further economic and political integration. It renders EU citizensever less willing to support unification, to accept being outvoted when theirnational interest is at stake, and to show the kind of solidarity to all of Europethat is typically shown to nation-states. The various national governments,which determine the fate of the EU in the European Council while answeringonly to their national constituencies, cannot entirely ignore this sentiment.

Not completely ignorant of these matters, the European Union has beenpursuing for quite some time an identity policy that places Europe at the cen-ter of appealing image advertisements, hoping to sell the idea of the EuropeanUnion through symbolic means. The European Union’s flag and anthem are

D. Grimm 197

7 EUROBAROMETER Nr. 25ff. (Europäische Kommission ed., 1993); CHRISTINE LANDFRIED, DAS POLITISCHE

EUROPA [POLITICAL EUROPE] 108 (Nomos 2002).

8 Jürgen Habermas, Die aktuellen und die langfristigen Herausforderungen der EU [The current

and long-term challenges of the EU] (2004) (unpublished manuscript, on file with author).

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part of this campaign.9 Efforts to secure a European constitution must also beseen in this context. The constitution has a positive connotation and is wellsuited to mobilizing support. Although the majority of EU citizens no longer

views the European Union in a positive light, surveys reveal that a majority isin favor of a European constitution.10 Consequently, it is not the constitution’slegal functions that are of central importance—these could be fulfilled bytreaties. Rather, the constitution is viewed as crucial because of its anticipatedcollective and emotive benefits and thus its integrative value.

2. The preconditions for a constitution’s

integrative powerIn the context of the European Union, the fact that a constitution’s integrative(as opposed to its legal) function may not necessarily take hold has addedsignificance. The question of exactly why some constitutions produce an inte-grative effect and why others miss the mark is raised. It is easier to ask thisquestion than to answer it. Although the integrative function of constitutionshas recently attracted greater interest, it has yet to be sufficiently examined.11

Existing theories—which are rudimentary at best—are not supported by

empirical data. The comparative historical studies needed to fill this gap have

198 Keynote essay

9 Ulrich Haltern, Europäische Identität [European Identity], in EUROPÄISCHE IDENTITÄT: PARADIGMEN UND

METHODENFRAGEN [EUROPEAN IDENTITY: PARADIGMS AND METHODOLOGIES] 57 (Ralf Elm ed., Nomos

2002); Ulrich Haltern, Pathos and Patina: The Failure and Promise of Constitutionalism in the

European Imagination, 9 EUR. L.J. 14, 30 (2003); Armin von Bogdandy, Europäische Verfassung und

europäische Identität [European Constitution and European Identity], in L’EUROPE EN VOIE DE CONSTITUTION

[EUROPE ON THE WAY TOWARD A CONSTITUTION] 657 (Olivier Beaud et al. eds., Bruylant 2004).

10 European Commission, The Future European Constitution, FLASH EUROBAROMETER No. 159

(Feb. 2004), at 21; Olivier Beaud & Sylvie Strudel, Démocratie, Fédéralism et Constitution

[Democracy, Federalism and Constitution], in L’EUROPE EN VOIE DE CONSTITUTION, supra note 9, at 12.

11 INTEGRATION DURCH VERFASSUNG, supra note 4; Haltern, supra note 4; Gebhardt & Schmalz-Bruns,

supra note 1; VERFASSUNG UND POLITISCHE KULTUR [CONSTITUTION AND POLITICAL CULTURE] (Jürgen Gebhardt

ed., Nomos 1999); Jürgen Gebhardt, Verfassung und Symbolizität [Constitution and Symbolism], in

INSTITUTIONALITÄT UND SYMBOLISIERUNG [INSTITUTIONALISM AND SYMBOLIZATION] 585 (Gert Melville ed.,

Böhlau 2001); GARY S. SCHAAL, INTEGRATION DURCH VERFASSUNG UND VERFASSUNGSRECHTSPRECHUNG?

[INTEGRATION BY CONSTITUTION AND CONSTITUTIONAL ADJUDICATION] (Duncker & Humblot 2000); ANDRÉ

BRODOCZ, DIE SYMBOLISCHE DIMENSION DER VERFASSUNG [THE SYMBOLIC DIMENSION OF CONSTITUTIONS]

(Westdeutscher 2003); GÜNTER

FRANKENBERG

, AUTORITÄT UND

INTEGRATION

. ZUR

GRAMMATIK VON

RECHT

UND VERFASSUNG [AUTHORITY AND INTEGRATION. THE GRAMMAR OF LAW AND CONSTITUTION] (Suhrkamp

2003); Günter Frankenberg, Tocquevilles Frage. Zur Rolle der Verfassung im Prozess der Integration

[De Tocqueville’s Question: The role of constitution during the process of integration], in

BUNDESVERFASSUNGSGERICHT UND GESELLSCHAFTLICHER GRUNDKONSENS [THE FEDERAL CONSTITUTIONAL COURT

AND FUNDAMENTAL SOCIAL CONSENSUS] 31 (Gunnar Folke Schuppert & Christian Bumke eds., Nomos

2000); CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY (Michel Rosenfeld ed., Duke Univ.

Press 1994); for an early contribution see RUDOLF SMEND, VERFASSUNG UND VERFASSUNGRECHT

[CONSTITUTION AND CONSTITUTIONAL LAW] (Duncker & Humblot 1928).

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not been undertaken. Under these circumstances, though it is possible to show,to a limited extent, the factors contributing to a particular constitution’ssuccess (assuming it has proved integrative in concrete cases), little is known

about the general conditions that must be met for successful integration.This paper cannot compensate for the lack of research. For now, our

answers will have to remain rather abstract, and we will only be able to sub-stantiate them using specific examples. Let us start with the observations thata constitution’s legal effectiveness is no guarantee of its integrative power andthat the criteria for this power must be sought in extralegal spheres of society.In general, one might say that a constitution will only have an integrative forceif, within its area of application, it stands for more than what it is in juridical

terms, that is, more than a mere legal text. The quality that allows a constitu-tion to exceed its legal efficacy is its symbolic power. A constitution will havean integrative effect only if it embodies a society’s fundamental value systemand aspirations, and if the society perceives that its constitution reflectsprecisely those values with which it identifies and which are the source of itsspecific character.12

Consequently, the degree of integration that is achieved by a constitutiondepends on how the constitution is perceived. This perception is only looselyrelated to its legal quality. It is true that a constitution’s integrative effect will

depend on its legal validity—it is improbable that a society would find anidentity in a constitution that was never intended to be valid or which can bepermanently ignored without consequence by those in power.13 Yet, the factthat a constitution functions legally does not mean that it will have anyintegrative power. Because their integrative power is ensured less by the legalquality of their regulations than by the way in which the members of a con-stitutionally formed polity perceive them, constitutions can acquire or forfeitintegrative power without prior textual changes to, or altered interpretations

of, their content.In contrast, there is a much closer link between a constitution’s integra-

tive power and the polity’s fundamental principles, to which it gives both legalexpression and a generally binding character. As a normative text embodyingthese principles of order, a constitution can confer identity only as long as thesystem it has established is perceived as being a “good” one.14 If the societydoes not see the system as “good,” it will reject the very constitution that

D. Grimm 199

12

Hans Vorländer, Integration durch Verfassung?, in INTEGRATION DURCH VERFASSUNG, supra note 4, at 9.13 Constitutions of this type are frequently called “symbolic constitutions.” Symbolic constitution in

this sense, however, should not be confused with the symbolic effects of normative constitu-

tions. See MARCELO NEVES, SYMBOLISCHE KONSTITUTIONALISIERUNG [SYMBOLIC CONSTITUTIONALIZATION]

(Duncker & Humblot 1998); MARCELO NEVES, VERFASSUNG UND POSITIVITÄT DES RECHTS IN DER PERIPHEREN

MODERNE [CONSTITUTION AND THE MODERN TREND OF LEGAL POSITIVISM] (Duncker & Humblot 1982);

BRUN-OTTO BRYDE, VERFASSUNGSENTWICKLUNG [CONSTITUTIONAL DEVELOPMENT] 27 (Nomos 1982).

14 Vorländer, supra note 12, at 9.

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protects the system and gives it a binding character. This was the fate of theWeimar constitution.15

As a rule, the perception of a system as “good” presupposes a high degree of

inclusivity. As more people in a society identify with their constitution, its powerto create social integration will grow. Open wording in a constitution fostersthis process. It helps to prevent competing ideas about the meaning of the textfrom undermining the citizenry’s identification with it. Thus, it may be correctto say that a constitution’s symbolic power increases with its interpretativeambiguity, although its legally determinative power decreases to thesame degree.16 Of course, this can only refer to slight shifts in the balance. Onthe one hand, there is no such thing as a legal norm that does not need to be, or

cannot be, interpreted. On the other hand, when applied to concrete cases, alllegal norms must be given an unambiguous reading relevant to each case.

The question of application is again relevant to social integration. If a con-stitution fails to exert authority in the real world of politics, not even a conceptof order perceived as “good” will be able to confer identity-building powerupon it. This is why constitutions that are linked to an authoritative instancesuch as a constitutional court (or a general court with the power of judicialreview) for the enforcement of constitutional provisions have a greater chanceof promoting integration than those that leave compliance up to government.17

Even so, it would be rash to assume that constitutional courts can fill the gapwhen the constitution lacks sufficient symbolic force and does not of fer societya sufficiently attractive focus with which to identify.

In order for integration by constitution to occur, our accumulated know-ledge suggests that the circumstances under which a society is founded playa crucial role. Bruce Ackerman, in particular, has emphasized the signifi-cance of the “constitutional moment” for a constitution’s integrative andidentity-building force.18 He uses this term to refer to those rare moments that

stand out from the usual course of politics, moments in which the desire to

200 Keynote essay

15 Detlef Lehnert, Desintegration durch Verfassung? [Disintegration through constitution?], in

INTEGRATION DURCH VERFASSUNG, supra note 4, at 237.

16 BRODOCZ, supra note 11; André Brodocz, Chancen konstitutioneller Identitätsstiftung. Zur symboli-

schen Integration durch eine deutungsoffene Verfassung [Chances of constitutional identity formation.

The symbolic integration by an open constitution], in INTEGRATION DURCH VERFASSUNG, supra note 4, at 101.

17 Helge Rossen-Stadtfeld, Verfassungsgericht und gesellschaftliche Integration [Constitutional court

and social integration], in BUNDESVERFASSUNGSGERICHT UND GESELLSCHAFTLICHER GRUNDKONSENS, supra note

11, at 169; SCHAAL, supra note XX; Brun-Otto Bryde, Integration durch Verfassungsgerichtsbarkeit und

ihre Grenzen [Integration by the constitutional jurisdiction and its limitations], in INTEGRATION DURCH

VERFASSUNG, supra note 4, at 329.

18 Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L REV. 775 (1997); Constitutional

Politics/Constitutional Law, 99 YALE L.J. 453 (1989); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS

(Harvard Univ. Press 1991); BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (Harvard Univ.

Press 1998); see also the papers presented at the symposium Moments of Change, 108 YALE L.J.

1917–2349 (1999).

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revise the principles of social order or the conditions of rule triumphs and isanchored in constitutional law. In fact, the great majority of both historicaland currently existing constitutions have been drafted for the establishment or

refounding of polities. Historical ruptures within societies frequently play acritical role here. Such events primarily take the form of triumphant revolu-tions toppling despised foreign rulers or oppressive regimes or, on occasion, acountry’s resurgence following a catastrophic collapse, as well.19

However, a “constitutional moment” must not be understood as the conditio

sine qua non for successful, integrative constitutions. There are constitutionswith great integrative power that have not emerged during such moments.One example is the new Swiss Constitution (billed as an “update” of the old).

Conversely, we know of constitutions that have emerged in a constitutionalmoment but did not gain any integrative capacity. The numerous Frenchconstitutions are vivid examples. A constitutional moment creates favorableconditions for effective, integrative constitutions in cases where a society con-tinues to recognize itself in a historical moment, and thus the emergentconstitution creates a link between past and present.

The United States exemplifies the triumphalist model of the “constitutionalmoment.” The history of the United States began with a successful revolutionagainst its mother country and culminated in the foundation of an independ-

ent state. These acts found expression in two founding documents—theDeclaration of Independence (1776) and the U.S. Constitution (1787). Bothare important to the collective memory of the U.S. and symbolize the originsand development of that country’s polity. While the Declaration of Independence stands for the casting off of foreign domination, the founding of a new polity—based on self-government, liberty, and the rule of law—findsexpression in the Constitution. The day on which the Declaration of Independence was adopted has become a national holiday, devoted to the

annual commemoration of the founding of the nation. Integration, however,is primarily achieved through the Constitution. There is no other polity inwhich the constitution plays such an important role in social integration asthe United States.20

This has something to do with the difference between structure and event.The adoption of the Declaration of Independence is an event that people cancommemorate on national holidays, just as the storming of the Bastille

D. Grimm 201

19 Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L. REV. 775 (1997); Louis Henkin,Revolutions and Constitutions, 49 LA. L. REV. 1023 (1989); ULRICH K. PREUß, REVOLUTION, FORTSCHRITT

UND VERFASSUNG [REVOLUTION, PROGRESS AND CONSTITUTION] (Wagenbach 1990); DIETER GRIMM, DIE

ZUKUNFT DER VERFASSUNG [THE FUTURE OF CONSTITUTIONALISM] 31 (3d. ed., Suhrkamp 2002).

20 MICHAEL KAMMEN, A MACHINE THAT WOULD GO OF ITSELF (Knopf 1987); Jürgen Heideking, Der

symbolische Stellenwert der Verfassung in der politischen Tradition der USA [The symbolic value of the

constitution in the political tradition of the U.S.A.], in VORLÄNDER, INTEGRATION DURCH VERFASSUNG,

supra note 4, at 123.

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provides a focal point for commemorating the French Revolution. But theDeclaration of Independence and, therefore, the American Revolution werelegitimized by values which would subsequently form the basic principles of

a new order expressed in the Constitution. Only through the Constitution as anormative text did the new order assume permanence and acquire a legallyvalid form. The Constitution remains valid, with relatively few changes, eventoday. It blends with the founding myth of the U.S. and keeps the myth alive inpeople’s minds. The Constitution embodies convictions that unite allAmericans independently of their origins and traditions. This unity is fosteredby the pithiness and openness with which the Constitution was formulated.

With the exception of the period of bloody civil war between the northern

and the southern states, Americans have always revered and celebrated theirConstitution in metaphors and rituals borrowed from religion. There are twofactors that have been largely responsible for this reverence. First, the UnitedStates, as a land of immigrants, could not offer the same potential for identifi-cation as full-fledged nation-states—prior to the adoption of the Constitutionno nation existed. Furthermore, for anyone emigrating to the new country,emigration meant breaking with their own tradition. The new tradition beganwith the Constitution, which distinctly stands for people coexisting in freedomwith respect for one another’s differences. Second, America’s constitutional

jurisdiction ensured from the very start that people would always recognize theimportance, as well as the social and political relevance, of the Constitution.

The Federal Republic of Germany may serve as an illustration of the catas-trophe model, since its Constitution was the product not of a successfulrevolution but of a profound defeat. Germany had lost much of its territoryand what remained was divided into two states hostile to each other. The countrywas burdened with guilt about its National Socialist past. Consequently, inpostwar Germany—as in the U.S. (albeit for different reasons)—traditional

identification factors did not exist. Because it was divided, the nation was outof the question. Its history was off limits, as it was closely associated with theHolocaust. Finally, culture could not enter the equation, because it was neededas a unifying bond for the divided nation. Where other nation-states found asound basis for integration and identity, postwar Germany faced a vacuum.

At the same time, a long phase of undisturbed economic growth turned theFederal Republic into a prospering economic power and stable democracy. Itssuccess was increasingly attributed to the Basic Law. In contrast with Weimar,whose constitution was held responsible for the collapse of the first republic,the Basic Law was identified with the rise of the Federal Republic of Germany.Adopted in reaction to National Socialism, the Basic Law symbolized not onlyGermany’s return to the fold of civilized nations but also a superior alternativeto communism. In Germany, as in the U.S., the introduction of a constitutionalcourt meant that Germans were able, for the first time in their constitutionalhistory, to perceive the Constitution as a relevant document that gave eachindividual the means to defend his fundamental rights against the state. This,

202 Keynote essay

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in turn, reinforced the legal efficacy of the constitution without which thesymbolic effect is unlikely to emerge.21

The Basic Law was thus able to fill the vacuum of identification factors. Its

popular esteem grew from decade to decade, as the dedications expressed atthe various jubilees testify. From the 1970s on, it even became a model formany states that had liberated themselves from dictatorships of every ilk.These states saw the German constitution as a guarantee of economic pros-perity and political stability and borrowed from it when they drafted their ownconstitutions. Nothing describes the German situation more aptly than theexpression (which has no parallel in any other country) “constitutional patri-otism,” a phrase with which people on both the left and the right could iden-

tify.22

Thus, constitutional patriotism became an expression of the fact that, ina society deprived of its other bases for national identification, the constitutionwas the document that represented the achievements and cherished values of the West German society.

The strength of this patriotism is in no way altered by the fact that inGermany—as in the U.S.—the meaning of certain constitutional norms andthe demands these norms place on government in specific situations werefrequently the subject of heated debate and the source of profound conflicts.Unlike discord in the Weimar Republic, conflicts in the Federal Republic did not

revolve around the Constitution as such, but around different interpretationsof a constitution that was fundamentally accepted. For when people argueover the correct meaning of a constitution and refer back to it in political andsocial conflicts, they are basically affirming the constitution through thesevery conflicts. When such conflicts arise, the constitutional court, operating ata distance from politics, has the opportunity both to assert the constitution’sauthority over the political branches of government and to anchor itmore firmly in the minds of the population. Even though disputes over the

interpretation of the constitution sometimes divide society, they do not generallyaffect the constitution as such.

D. Grimm 203

21 Dieter Grimm, Das Grundgesetz nach 50 Jahren [The Basic Law after fifty years], in BEWÄHRUNG UND

HERAUSFORDERUNG. DIE VERFASSUNG VOR DER ZUKUNFT. DOKUMENTATION ZUM VERFASSUNGSKONGRESS “50

JAHRE GRUNDGESETZ —50 JAHRE BUNDESREPUBLIK DEUTSCHLAND” 39 (Otto Depenheuer & Heinrich

Oberreuter eds., Leske Budrich 1999); Dieter Grimm, Verfassungspatriotismus nach der

Wiedervereinigung [Constitutional patriotism after reunification], in DIE VERFASSUNG UND DIE POLITIK

[CONSTITUTION AND POLICY] 107 (Dieter Grimm ed., Beck 2001).

22 The original texts are Dolf Sternberger, Verfassungspatriotismus [Constitutional patriotism],

FRANKFURTER ALLGEMEINE ZEITUNG, May 23, 1979, at 1; JÜRGEN HABERMAS, EINE ART

SCHADENSABWICKLUNG [A WAY OF DIMINISHING THE DAMAGE], (Suhrkamp 1987); see also Josef Isensee,

Die Verfassung als Vaterland [The constitution as Fatherland ], in WIRKLICHKEIT ALS TABU [REALITY

AS TABOO] 11 (Armin Mohler ed., R. Oldenbourg Verlag 1986); Jürgen Gebhardt,

Verfassungspatriotismus als Identitätskonzept der Nation [Constitutional patriotism as a national identity

formation], in VERFASSUNG UND POLITISCHE KULTUR, supra note 11, at 15.

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3. The integrative potential of the Europeanconstitution

Proceeding from these findings, we can now return to the European constitutionand ask ourselves—when considering the legitimacy deficit of the EuropeanUnion—whether the constitution is likely to evince the integrative power that isexpected of it. In order to answer this question, it is helpful if we bear in mindthat the need for institutional reform does not render a constitution necessarysince this need can be fully satisfied within the framework of the existing treaties.All the changes that appear desirable or necessary to the constitution could beinserted into these treaties. Under these circumstances, the success of theprojected constitution—which the convention found so urgent—depends onwhether or not the document, once it has come into effect, fulfills expectationson a symbolic level and compensates for the lack of a natural basis for integra-tion. This would be similar to what the American Constitution managed to do ina country of immigrants, and the Basic Law in a divided Germany.23

Of course, no one can predict what will happen with any degree of certainty.The symbolic effect of a constitution is not necessarily realized with its promulga-tion. This effect will be the result, ultimately, of the people’s attributing to the con-stitution a metalegal meaning, in particular, achievements and aspirations of

society—all of which can change over time. In 1949, nobody expected the BasicLaw to have such integrative power. The general public did not show any greatinterest in it when it was being drafted and came into effect. Many legal expertsinitially took a skeptical and critical view of the Basic Law. Hence, with regard tothe European constitution, one can only ascertain whether the preconditions forsuccessful integration by the new document are generally favorable. In the mean-time, its efficacy at the legal level, as the prerequisite for its effectiveness at thesymbolic level, can be taken for granted. There is no reason to assume that it willbe appreciably less effective than the current legal basis of the European Unioneven though the simplification and transparency originally hoped for have notbeen achieved in every respect.

The European Union resembles both the U.S., as a country of immigrants,as well as a formerly divided Germany, inasmuch as the Union cannot rely ontraditional means of integration. In both countries, the lack of traditionalintegrative means offered the constitution an opportunity to fill the gap.Whether or not this opportunity was taken depends, however, on a variety of additional conditions. In particular, both of these integratively successful

constitutions emerged from a constitutional moment, in Ackerman’s sense,in order to distance themselves from a past that was viewed with disdain, andto shape a new idea of political order that was then made legally binding.

204 Keynote essay

23 Armin von Bogdandy, Europäische Verfassung und europäische Identität [The European constitution

and European identity], JURISTENZEITUNG 2004, at 53; Haltern, Pathos and Patina, supra note 9;

Haltern, Europäische Identität, supra note 9.

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Thus created, both constitutions have become symbols of the polities’ founda-tions and lasting successes.

In contrast, the document drawn up by the convention in 2003 is not a

striking symbol of the historical realization of European unity. We are neitherwitnessing the foundation of the European project nor a new beginning aftera radical historical break. On the contrary, European integration is a process of gradual expansion and consolidation. The stages of this process are marked bythe accession of new member states and amendments to the relevant treaties.None of these stages displayed the typical features of a constitutional moment.To be sure, the Maastricht treaty of 1992 did stand out among the variousstages of European unification inasmuch as it made the public aware, for the

first time, of the degree of community already attained. Until then, integrationhad escaped public notice and was basically achieved by administrative and

judicial paths. However, growing public interest did not give the EU greaterlegitimacy but only made its weak support visible. Since Maastricht, the num-ber of EU citizens who see the Union as “a good thing” has been declining.24

It is important to remember, however, that the process of establishing a con-stitution has been in conjunction with the expansion of the European Unionto include ten new members, most of whom, until 1989, had very differentsocial orders from their western counterparts. Yet, the European Union had

accepted new member states in the past without people ever viewing theprocess as a constitutional moment. The expansion of 2004 is not regarded asa triumph of the European cause, as it might have been in 1989—a year thatwould have undoubtedly supplied the preconditions for a constitutionalmoment and for elevating the constitution to symbolic status. In view of theweak economies and unstable democracies in many of the new member states,the older members tend to view current developments with concern.Additionally, people in the new member states evidently do not feel that they

are witnessing a memorable moment, as indicated by the level of participationin the European elections soon after these new countries had acceded to theEuropean Union. It is too early to say whether this will change in the future.

Certainly, the process of European integration has achieved somethingwhich, considering Europe’s painful history, should not be underestimated.One can be almost certain that, owing to their high degree of integration, it isvery unlikely the EU member states will ever wage war on one another again.Yet, almost sixty years after the end of World War II, and nearly fifty years afterthe founding of the European Communities, this achievement is now takenfor granted to such a degree that few are likely to attribute it to a Europeanconstitution that only came into being in 2004. Even though the expression“constitutional moment” should not be taken literally, and even though a goodten years passed between the Declaration of Independence and the adoption of

D. Grimm 205

24 LANDFRIED, supra note 7.

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the Constitution in the United States, it would be stretching things to see aconnection between two events that are separated by sixty years.

In other respects, too, we are witnessing the birth of a constitution at a

moment in time that does not seem suitable to the making of a memorablemyth. A constitutional moment, in Ackerman’s sense, is not in sight. Eventhose who think that the year 2004 has the stuff of which constitutionalmoments are made must refer to developments in the context of an uncertainfuture.25 At present, the transition from the European Union’s current legalsystem, which is founded on international treaties, to a constitution appears tobe but one more stage of many on Europe’s path from a single market to apolitical union. This process is quite similar to the manner in which the Single

European Act and the Maastricht treaty were also stages in this development,though they did not acquire symbolic character or foster European identity.

Similarly, the text of the constitutional document does not lend itself tosymbolic effects. It is true that, as a single text, it represents a step forward fromthe previous legal basis, which was spread over a number of different docu-ments. However, it is cumbersome compared with an integrative constitution.Apart from its two preambles, the draft by the convention comprises 465 arti-cles as well as five protocols and three declarations. In contrast, the U.S.Constitution (including later amendments) has 27 articles; the Basic Law con-

tains 183 articles (including amendments); the Portuguese constitution, thelongest of any EU member state, contains 299 articles. Hence, the Europeanconstitution is very long, detailed, and technical. It is difficult to grasp theinterplay of organs, the allocation of competencies between the Union and themember states, as well as the decision-making procedures.

This appraisal does not proceed on the assumption that the citizens of a stateknow the wording of their constitution. This is not even the case in the UnitedStates. Yet, as a rule, citizens have some idea of the guiding principles on which

their Constitution is based. They even remember the precise wording of certainmemorable notions and use them to support arguments when necessary.Whether or not the ideas contained in a constitution are memorable depends,to a certain extent, on the way they are phrased. National constitutions, espe-cially those that owe their origins to a constitutional moment, tend to containsuch formulations. The text preserves something of the pathos of a constitu-tional moment. Such formulations are few and far between in the conventiondraft, which has not cast off the complicated language of diplomaticallynegotiated treaties and is, in fact, identical in wording over long stretches.

Fundamental rights, which of all the parts of a constitution are mostconducive to producing integrative effects, are not likely to achieve much either.

206 Keynote essay

25 Neil Walker, After the Constitutional Moment, in A CONSTITUTION FOR THE EUROPEAN UNION: FIRST

COMMENTS ON THE 2003-DRAFT OF THE EUROPEAN CONVENTION 23 (Ingolf Pernice & Miguel Poiares

Maduro eds., Nomos 2003); Ingolf Pernice, The Draft Constitution of the European Union. A

Constitutional Treaty at a Constitutional Moment?, id. at 13; von Bogdandy, supra note 23.

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After all, they do not mark the end of a period of oppression and despotism in aEurope deprived of basic rights. Despite the absence of a written charter of fundamental rights, the European Union has long enjoyed the protection of

fundamental rights through the European Court of Justice, based on theEuropean Convention of Human Rights and the member states’ catalogues of fundamental rights. Moreover, the Charter of Fundamental Rights offers citiz-ens of the EU a third catalogue of human rights (in addition to the national oneand the European convention adopted by the Council of Europe) to protectthem from public authority. This is likewise true for the citizens of the newmember countries. In federalist states, such as the Federal Republic of Germany,the Charter actually constitutes a fourth catalogue that citizens can invoke.

Ultimately, the new document raises the question of whether it reallydeserves to be called a constitution.26 According to the standard set by theAmerican and French revolutions, as the origins of modern constitutionalism, itis in the constitution that a society determines the form and content of its polit-ical unity. In so doing, society exercises its right to self-determinationvis-à-vis the ruling order, thereby demonstrating that it is sovereign and the solesource of public authority. It is for this very reason that constitutions are nor-mally adopted by the people, or at least attributed to them as the origin of allpublic authority, while state organs derive their existence and powers from the

people and exercise them in the citizens’ name. The basic legal order of the European Union, by contrast, has neither originated in a decision made by itscitizens, nor is it attributed to them. It is a matter for the member states tocontractually agree upon a basic legal order, which is then ratified by each mem-ber state. This is not an act of self-determination but of external determination.

The constitution of a political entity can, however, come about on the basisof a treaty prepared by its founders. This is, indeed, the standard procedurewhen several states combine to create a greater political whole. In this case, a

treaty is merely the mode of constitution making. The founding treaty is, at thesame time, the final international treaty providing the legal basis of the newpolitical entity. With the adoption of the treaty, its character as treaty is con-summated. From then on, the new political entity disposes itself on this legalbasis, which thereby becomes its constitution, as is apparent in the provisionsrelating to constitutional amendments. If the constitutional treaty is the lasttreaty under international law and subsequent amendments are decidedupon by the entity so constituted, the basic legal order is a constitution. If themember states still retain the power to make amendments by way of concludingtreaties on the basis of international law, the basic legal order remains a treatyin nature and does not become a constitution.27

D. Grimm 207

26 Dieter Grimm, Verfassung—Verfassungsvertrag—Vertrag über eine Verfassung [Constitution—

Contract—Contract establishing a constitution], in L’EUROPE EN VOIE DE CONSTITUTION, supra note 9, at 279.

27 For examples from American constitutional tradition, see GORDON S. WOOD, THE CREATION OF THE

AMERICAN REPUBLIC (2nd ed., Univ. of North Carolina 1995).

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What is the situation with respect to the European constitutional treaty? Incontrast to the previous version, the one now agreed upon distinguishes betweendrafting constitutional amendments and passing decisions on them. In the

preparatory phase, an ad hoc convention is to be summoned regularly to draft thetext. During the decision-making phase, everything remains as it was before. AnIGC, which is not an organ of the EU, has to approve the draft unanimously—withor without amendments—and then submit it to the member states for ratification.This is in no way changed by the fact that in some countries the people themselvesare to decide whether the treaty is to be adopted or not. For in this case the “peo-ple” are not the citizens of the EU, and their decision is not a decision upon theconstitutional system of the EU. The people are the citizens of different nation-

states, deciding on whether or not their state is to approve the signed treaty.Neither is this qualification altered by the fact that the governments of the

member states, which negotiate the treaty at the IGC, are democraticallyelected by their citizens, by which one could conclude that the basic legal orderis ultimately attributable to the European Union’s citizens.28 Here, too, thepeople are only involved as citizens of nation-states, and only inasmuch asthey elect the national parliament and, in some countries, the president. It is,therefore, fictitious to claim that all decisions made by the elected organs areresults of the popular will. The document remains in the hands of the member

states. Measured against a somewhat meaningful notion of a constitution, thisdocument cannot be considered a constitution. One could not credibly beginthe European constitution with those famous words introducing the USconstitution, “We the People,” with which every American is familiar.

For all these reasons, it will be difficult—at least in the near future—for thenew constitution to produce integrative effects. There is nothing for which itcould be seen to stand in addition to its legal validity, which is nonethelessundiminished. From the legal viewpoint, and all criticism notwithstanding, it

is an improvement in both form and content over the present legal basis of theEuropean Union. But the fact that it will function on the legal level does notalone elevate it to the symbolic level. Since this depends on the nonlegal effectsof the constitution, it would require emotional associations that do not exist.Consequently, the desire for a transition from treaty to constitution, namely, topromote the lacking social integration, still lacks a solid basis in reality. Atpresent, there is little reason to expect that the constitution will make up forthe European Union’s legitimacy deficit, anchor the Union in the hearts of Europe’s citizens, and, in so doing, play an integrative and identificatory role.

208 Keynote essay

28 See, e.g., Ingolf Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European

Constitution-Making Revisited?, 36 COMMON MKT. L. REV. 703 (1999).

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