Judges and lawyers beyond constitutive power

The unfortunate fate of the European Constitution raises interesting questions about European law. As a former Advocate General confirms, European lawyers are unconcerned by current constitutional malaise, having long argued that Europe is already in possession of something resembling a constitution.2 Nonetheless, the failure to identify a ‘popular’ European constitutive moment must surely cast some degree of doubt on the validity of European law’s current constitution-making activities. For all that European lawyers claim to play a legitimate role in constitutionalizing integration, European publics have left us in little doubt; not that they wholly reject a constitution, but, rather, that they are utterly divided about the appropriate content that should be ascribed to it. Vitally, as Dutch and French referenda confirmed, the split is ideological and not national: some rejected the draft treaty because it was too liberal in nature; to others, it was anathema, since it imposed too great a welfare burden.