Adieu to constitutional elitism?
The negative referendum results in France and the Netherlands have been construed as signs of a deep gap between the European Union’s leaders and its people(s). Treaty-making/change in the European Union has historically been conducted through an intergovernmental, executive-style approach, with limited popular input, at least until the referendum stage. The latest instance, the so-called Laeken process (from the Laeken Declaration to the popular referenda, 2001-2005), cast the undertaking in explicit constitutional terms and opened and democratized aspects of the process. The negative referendum results however raise questions as to whether the Union can and should continue down the constitutional route. This article examines political and democratic challenges and opportunities associated with transition from an executive-style to a more open and democratic approach to constitution-making/change. The purpose is to derive theoretical and practical lessons from other comparable polities, which have sought to democratize their executive-style approach to constitution making. This article has later been published under the title On democratizing European Constitution Making: Possible lessons from Canada’s experience in Supreme Court Law Review Vol.37, pp. 343-381.
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