"The Assent of the People is Not Necessary to the Formation of a Confederation": Notes on the Failure of the European Constitutional Referendums
‘The Assent of the People is Not Necessary to the Formation of a Confederation’: Notes on the Failure of the European Constitutional Referendums

Summary/Abstract: It is the thesis of this paper that the main causes for the failure of the European Constitution result from the bad preparation and management of a complex process of constitution-making for a union of states of continental proportions. The crucial reasons for the failure of the European Constitution are elaborated as certain preliminary propositions. The first proposition is that in the normative sense, there is no reason and need for the people to be directly engaged in the creation of a confederal union or in the amending of its fundamental documents. The next and related proposition is that there are powerful political reasons to avoid popular ratification of constitutional documents, especially in federal unions. The argument is that a referendum is more suitable for pulling down than to build up Constitutions is similar to the former – that the people should have nothing with confederations. However, the former argument starts from the normative proposition that the people should not ratify confederal treaties, and the latter means to point out that there could be significant problems with constitutional acceptance when that constitution has to be ratified by some sort of direct involvement of citizens (by people’s conventions or referendum). The third argument is that the European constitution-makers’ ambivalent approach to the method of constitutional ratification and the complete absence of a ratification strategy, resulting in the compromise procedure of ratification “in accordance with their respective constitutional requirements”, was extremely detrimental from the standpoint of ratification.

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