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The Paradox of ConstitutionalismConstituent Power and Constitutional Form$
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Martin Loughlin and Neil Walker

Print publication date: 2008

Print ISBN-13: 9780199552207

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199552207.001.0001

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Post-Constituent Constitutionalism? The Case of the European Union

Post-Constituent Constitutionalism? The Case of the European Union

Chapter:
(p.247) 13 Post-Constituent Constitutionalism? The Case of the European Union
Source:
The Paradox of Constitutionalism
Author(s):

Neil Walker

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199552207.003.0014

This chapter considers the general question of the relationship between constituent power and constitutional form in the context of new or shifting non-state political configurations, and specifically in the case of the constitionalization of the European Union. It examines four hypotheses on the concept of a European constituent power: non-constituent constitutionalism, constitutional scepticism, constitutional vindication, and a post-constituent constitutionalism that, unlike the others, recognizes the initial absence of a supranational constituent power but insists upon both the value and the plausibility of its subsequent development. The chapter develops a position in defence of such a post-constituent constitutionalism — one that nurtures at least some ‘constituent’ qualities without undermining the continuing constituent authority of states.

Keywords:   constituent power, European Union, transnational constitutionalism, post-constituent constitutionalism

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