The Constitution’s Gift? A deliberative democratic analysis of constitution-making in the European Union

Our aim in this article is to consider whether the Union’s deliberation over and decision-making on constitutional norms, can contribute to render it more democratic. From a normative perspective, the way a constitution is forged has deep implications for its democratic legitimacy. In light of recent events, we consider how procedural changes in constitution-making might contribute to rectify the Union’s democratic deficit. To do so we first develop a thin model of constitution-making based on the central tenets of deliberative democracy. We seek to outline how a legitimate constitution-making process will look from a deliberative democratic perspective. Second, we distil out some of the core characteristics of the Intergovernmental Conference (hereafter, IGC) model and assess this against the normative model, to establish the democratic quality of the IGC model. Third, we assess the current Laeken process by means of spelling out the central tenets of this mode of constitution-making, and we assess it in relation to the normative standards of the deliberative model. In the fourth and final step, we consider what contribution constitution-making might make to the handling of the EU’s legitimacy deficit(s). This article has later been published in European Law Journal vol. 11, No.4, pp. 380-410