Building Europe’s Constitution. The parliamentarization and institutionalization of human rights

Over the past half century, the European Parliament has undergone a remarkable transformation from an assembly endowed with supervisory powers to a directly-elected legislator, co-deciding most secondary legislation on equal footing with the Council. Furthermore, while human rights were not institutionalized in the founding Treaties, the European Court of Justice began to make references to fundamental rights in its jurisprudence since the late sixties, and the recent past has seen the codification of fundamental rights in the Charter of Fundamental Rights. Under what conditions have the parliamentarization and the institutionalization of human rights at the EU level progressed? We explain the constitutionalization of the EU – parliamentarization and the institutionalization of human rights – as strategic action in a community environment. According to this approach, community actors use the liberal democratic identity, values and norms that constitute the EU’s ethos strategically to put social and moral pressure on those community members that oppose the constitutionalization of the EU. We find that salience has been the most relevant condition for triggering incremental constitutionalization: The more a proposed or implemented decision by the member states to pool or delegate sovereignty is perceived to curb the competencies of national parliaments and to undermine national or other international human rights provisions, the more salient the “legitimacy deficit” of European integration becomes. This state of affairs, in turn, generates normative pressure on EU actors to redress the situation through strengthening the powers of the EP and human rights provisions at the EU level.