Constitutionalism vs. Europe

Pablo José Castillo Ortiz

4 mins - 25 de Enero de 2024, 07:00

In 2024, elections to the European Parliament will take place, and in the speeches of Eurosceptic leaders you will frequently hear one concept: constitution.

Brexit, which Eurosceptics across the continent celebrated as a victory of their own, has become an uncomfortable episode for many of these parties. In the UK, the obstinate and unrepentant leavers are a dwindling minority. Elsewhere in Europe, many Eurosceptics are silent when the bold still talk of a British-style exit from the European Union.

The situation is such that many Eurosceptics are now resorting to the mobilisation of constitutionalism, a tool that was not traditionally among the strategic instruments of these parties, so often marked by populist and sometimes authoritarian impulses. But after all, isn't constitutionalism an idea deservedly loaded with positive connotations and respectability? What better tool than this, then, to counter the idea of a Europe integrated in diversity?

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Some, the more radical ones, will still be ready to call for an exit from the European Union: this has been announced in Germany by Alternative für Deutschland. But many Eurosceptics will avoid talking much about what was, in theory, the culmination of the Eurosceptic agenda, the resounding Brexit. They will often try to draw a discreet veil of silence over this episode and instead try to set themselves up as guardians of constitutionalism. This is the Euroscepticism to come, the one that is articulated with constitutional concepts. 

In this Eurosceptic rhetoric, national constitutions would be threatened by European integration. With national constitutionalism eroded, nation-state democracies are equally endangered. These discourses are built on the pretence of a proposal for a different Europe: one in which national sovereignty and national constitutionalism prevail. These discourses, however, are also built on silences and half-truths, and above all on the unacknowledged costs of eroding European integration.

The Eurosceptics therefore claim constitutional supremacy over the primacy of European law, but they fail to explain that without EU supremacy, the EU would become an empty, impotent, and dysfunctional structure. Why propose an exit from the EU when it is easier to do away with it from within and without openly acknowledging it? 

As part of these strategies, we will see Eurosceptics mobilising constitutional jurisprudence against the EU, perhaps with the desire to make constitutional courts the protagonists of their nationalist daydreams. In Poland, in fact, they came close to achieving this, when the Constitutional Tribunal controlled by the illiberal Law and Justice party – now, finally, in opposition – decided to antagonise the case law of the Court of Justice of the European Union. The European Union is, in reality, integration through law. That is why using national constitutional courts as pawns in a battle against Europe is not a mere anecdote of judicial politics: it strikes a painful blow at the heart of integration.

Mobilising constitutions and courts against European integration thus has an enormous cost. As a strategy it is more discreet, but no less dangerous, than the one with which Boris Johnson led the UK into the perplexing chaos of Brexit. This is because both forms of Euroscepticism lead to the same place, only by different paths: the nationalism of Eurosceptics, who choose not to cooperate in diversity, is transformed into loneliness and powerlessness.

In 2024 there are elections to the European Parliament, and many Eurosceptics will talk about constitutionalism. But theirs is a closed and hostile constitutionalism, different from the open constitutionalism that was born with the post-war democracies. Le Pen will speak of French constitutionalism. Abascal will speak of Spanish constitutionalism. But in the echo of their speeches the tragic buffoonish tone of Boris Johnson's Brexit will resound, and the shadow of their narratives will cast for the whole of Europe the political bankruptcy that the United Kingdom of 'take back control' is already experiencing in its flesh. 
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