When the people come in: Constitution-making and the belated politicisation of the European Union

The EU has over decades gradually developed a material constitutional arrangement, with very limited public input. Since 2001, the Laeken constitutional process which produced the Treaty establishing a Constitution for Europe has become greatly politicized. This automatically directs our attention to the public sphere as a core requirement of any modern constitutional system. More specifically, this paper will analyse the structural determinants of mediation and public communication between European constitution-makers and their diversified constituencies. The aim is to relate the negative referendum results or what we refer to as ratification failure to the European public sphere deficit. Three possible explanations for ratification failure will be discerned and discussed: The first posits that constitution-making, in order to be successful, must rely on pre-existing resources of common trust, solidarity and understanding, which are constitutive of a shared public sphere. The second explanation takes as its point of departure that a process of constitution-making has a catalytic function that in turn can constitute a shared public sphere. The third explanation attributes ratification failure to the manner in which mediatisation affects public communication in the EU. As will be argued, the contingent character of mediatisation contains particular risks for the European constitutional endeavour which merits further research attention.

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