This article argues that, despite the negative historical experience, nothing in the nature of constitutionalism as a concept stands in the way of the European Union (EU) eventually adopting a constitution, and so turning its tacit and silent constitutionalism into an explicit project. Furthermore, the past crises of European integration, which have been left in suspense rather than resolved, make the case for explicit constitutionalisation of the EU even stronger today. However, for this case to succeed, the EU should not repeat the old constitutional mistakes, in particular by eschewing its constitutive reliance on the statist, and hence monist, American constitutional experience. While it is thus by no means certain that constitutionalism is a normatively and empirically viable alternative for shaping the future of the EU, and while this cannot be known until it is tried, the article concludes that there are good reasons for which a refined, pluralist constitutional imaginary could succeed in reconstituting the EU with all of its legal, democratic, political and federalist conceptual novelties.
Matej Avbelj is Professor of European Law. The research for this article has benefited from the support of the Slovenian Research Agency within the framework of the research project No.J5-1791 (A) “An integral theory on the future of the European Union.” It has also been written as part of the Jan Komarek’s Project IMAGINE, which has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (Grant Agreement No.803163).
The final draft of the article was published as IMAGINE Working Paper No. 9.