Abstract: “We the People” and the corresponding concept of constitutional authorship have gripped our imagination of the legitimacy of constitutional democracy since the American and French Revolutions. In contrast to this Big Bang scenario of constitutionmaking, the constitutionalization of the European Union (EU) as a supranational entity is the product of a decades-long process, departing from the Revolutionary tradition of constitutionalism. Whether this “presentist” project of constitutionalization without making a constitution, which is characterized by polyarchical everyday policy negotiations and apolitical judicial decisions in the normality of the constitutional order, will succeed in reconstructing our imagination of political order as an alternative to constitutional authorship remains to be seen. This paper aims to answer this question through a close inspection of Frank Michelman’s critical engagement with theories of constitutional legitimacy. My investigation shows that Michelman arrives at a presentist view of constitutional democracy after pointing out the inadequacy of theories of constitutional legitimacy rooted in the Revolutionary tradition of constitutionalism. I argue, however, that Michelman’s presentist view cannot fully account for the legitimacy of public institutions in constitutional democracy without presupposing a transtemporal view of identity, which is the reason why Michelman finds constitutional authorship in tension with liberalism, and thus unacceptable. By showing that Michelman’s presentist view of constitutional democracy is coherent with, rather than being at odds with, constitutional authorship, I conclude that the latter will continue to play a central role in our concept of the legitimacy of constitutional democracy. Accesibil la http://cadmus.eui.eu/dspace/handle/1814/9014

Abstract:     
The Constitutional Court is one of the most characteristic features of the German constitution. The most important power of the Court rests in litigable fundamental rights. According to established jurisprudence, any governmental interference with freedom or property needs justification. It must pursue a legitimate aim, and the interference must be conducive to this end, it must be the least intrusive measure, and it may not be out of proportion. Conceptually, this dogmatic tool could become the vessel for a long-standing dream of (some) political scientists. It could turn the Constitutional Court into an authority for assessing political outcomes. The paper demonstrates the many obstacles, originating both from political sciences and from law. They call for high modesty and prudence. But they do not turn the dream into outright utopia. Systems theory, very liberally employed, allows us to define a subsidiary role for the Constitutional Court in assessing political outcomes. The paper concludes by analyzing the dogmatic consequences for the interpretation of fundamental rights. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=296367.

Articolul prezinta o analiza a legitimitatii procesului decizional in cadrul pilonului II al UE- politica externa si de securitate comuna : http://www.arena.uio.no/publications/working-papers2008/papers/wp08_06.pdf.

Abstract
The maintenance of the Rule of Law is a concern for all established polities. For a still emerging polity such as the EU, it has a more fluid and more dynamic significance. If we examine the various functions that the Rule of Law is capable of performing – regulatory, authorizing, instrumental, community-identifying and promotional – all of these hold significant potential in the EU context. At the same time, however, the EU’s effective capacity to exploit that potential is highly precarious. This paper argues that the promise and the vulnerability of the Rule of Law in the supranational context are two side of the same coin. They spring from the same background political circumstances of limited and uncertain ‘polity legitimacy.’ The paper concludes nevertheless that, provided investment in the Rule of Law embraces an awareness of these difficulties and is suitably modest, it still has a vital role to play in the development of a legitimate supranational order. http://www.law.ed.ac.uk/file_download/series/43_theruleoflawandtheeunecessitysmixedvirtue.pdf

The Irish No vote represents a “victory for freedom and reason over artificial elitist projects and European bureaucracy,” he added. http://euobserver.com/9/26331

A central issue is any future European constitution concerns the inter-relationship of national courts and the ECJ, in particular in relation to the claim to supremacy over national law contained in the ECJ’s jurisprudence. The discussion begins with a brief account of the Community’s supremacy doctrine. This will be followed by an analysis of the reaction of national courts to this claim. The focus will then shift from positive law to the normative evaluation of a number of issues that are central to this topic. The analysis concludes with some thoughts on the relevant provisions of the Preliminary Draft European Constitution that has emerged from the Laeken Convention. http://www.ecln.net/rome2002/craig.pdf