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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

(p.247) 13 Post-Constituent Constitutionalism? The Case of the European Union
The Paradox of Constitutionalism

Neil Walker

Oxford University Press

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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