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The European constitution and

European identity: Text and subtextof the Treaty establishing aConstitution for EuropeArmin von Bogdandy*

1. Theme and premises1.1. Scope and developmentSince the beginnings of European integration, many have asserted thatestablishing a European identity is essential.1 They consider citizens identifi-cation with the supranational organization as necessary to its expansion intoa viable political community. Official efforts were already directed toward this

goal by the early 1970s, finding a first peak in the 1973 declaration of headsof state and government on European identity.2 The only moderate success of identity politics,3 thus far, has significantly contributed to current effortstoward a written European constitution, which is to bring citizens closer tothe European design and European institutions.4

Not all scholars agree that EU citizens are actually required to identify withthe Union in order for it to attain its objectives in the long run. Certainly, aviable community cannot consist of irreconcilable religious, ethnic, or social

ICON, Volume 3, Numbers 2 & 3: Special Issue May, 2005, pp. 295315 doi:10.1093/icon/moi021 Oxford University Press and New York University School of Law 2005. All rights reserved. For permissionsplease email [email protected]

* Director, Max Planck Institute for Comparative Public Law and International Law, Heidelberg. I would liketo thank my colleague Rdiger Wolfrum for his fruitful criticism and my assistants, Stefan Huler andDietrich Westphal, for their help in researching the relevant literature. Email: [email protected]

1 ERNSTHAAS, THE UNITING OFEUROPE16 (Stanford Univ. Press 1958); Ulrich Meyer-Cording,DieEuropische Integration als geistiger Entwicklungsproze [European integration as a process in mentaldevelopment], 10 ARCHVR 42, 45, 49, 58ff., 68 (Mohr Siebeck 1958). For the recent debate, seeMaria Zanichelli,LEuropa come scelta[Europe as choice], 31 QUADERNIFIORENTINI PER LA STORIA DELPENSIERO GIURIDICO MODERNO917 (2002).2

Document on European Identity, adopted by the Foreign Ministers of Member States of theEuropean Communities on 14 December 1973 in Copenhagen, Europa-Archiv Folge 2/1974,D 50. In the absence of institutionalization by the European Council, formal adoption rested withthe Foreign Ministers of the member states.3 Detailed data on this point can be found in the Eurobarometer,at http://europa.eu.int/comm/public_opinion/archives/eb/eb59/eb59_en.htm.4 Preface, Draft Treaty establishing a Constitution for Europe, 2003 O.J. (C 169) 1 (Aug. 18,2003).
http://europa.eu.int/comm/http://europa.eu.int/comm/


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groups.5 However, absent such stresses, this merely implies a civil form of interaction, not a common identification of citizens with the political organi-zation (that is, a we).6 Assertions that such an identity is necessary for acommunitys viability are generally not well-proven conclusions of empiricalresearch but, rather, axioms of normative theories that advocate communalspirit and public unity.7 The term identity is attractive for such theoriesbecause it allows for the concealment of normative premises.8

Nonetheless, the scientific debate affords sufficiently plausible support forthe following assertion: the development of a collective identitycanbe helpfulfor the viability of a political community. Note, however, that this assertiondoes not allow normative conclusions. The basic rights to freedom of con-

science, speech, and association make any legal requirement to identify with aspecific we highly problematic, as it would touch the core of an individualsautonomy and dignity.9 Thus, even if there were a proven need for a common

296 A constitutional identity for Europe?

5 See especiallyHermann Heller,Politische Demokratie und soziale Homogenitt[Political democracy and social homogeneity], in 2 GESAMMELTEWERKE421 (1971). According to Heller, the Weimar Republicdepended on a single circumstance: the ruling classes needed to convince the proletariat that itcould improve its material well-being within the process of the Weimar Constitution. Contrary tothe famous quotation by the Federal Constitutional Court in its even more famous Maastricht

judgment (BVerfGE 89, 155, 186), Heller disregards the integration function of substantial homo-geneity. The factors for integration and identity (e.g., common language, history, and culture),which the Federal Constitutional Court considers as decisive, and on which it refers to Heller, areconsidered by Heller as phenomena of the past.Id . at 429.6 The conceptual counterpart, which is skeptical of identity, would focus instead on the decision-making processes, which must accomodate the many forms of diversity. For a detailed treatment,see Armin von Bogdandy,Europische und nationale Identitt: Integration durch Verfassungsrecht?[European and national identity: Integration by constitutional law] VVDSTRL 62, 157, 178ff. (2003).7 For evidence that the need for collective identity is often overestimated,seeFreidhelm Neidhardt,

Formen und Funktionen gesellschaftlichen Grundkonsenses[The form and function of social consensus],in BUNDESVERFASSUNGSGERICHT UND GESELLSCHAFTLICHERGRUNDKONSENS[THE FEDERALCONSTITUTIONALCOURT ANDSOCIALCONSENSUS] 15, 16f., 26f. (Gunnar Folke Schuppert & Christian Bumke eds.,Nomos 2000).See alsoHans-Hartwig Bohle et al.,Anomie in der modernen Gesellschaft[Anomy inmodern society], in WAS TREIBT DIEGESELLSCHAFT AUSEINANDER? [WHATDRIVESSOCIETYAPART?] 29, espe-cially 54ff. (Wilhelm Heitmeyer ed., Suhrkamp 1997); RALF DAHRENDORF, GESELLSCHAFT UNDDEMOKRATIE INDEUTSCHLAND[SOCIETY ANDDEMOCRACY INGERMANY] 161ff., 174f. (R. Piper & Co.1965); Erhard Denninger,Integration und Identitt[Integration and Identity], 34 KJ 447 (2001).8 For a sharp and well founded critique of the use of the termidentityin many discourses,seeLUTZNIETHAMMER, KOLLEKTIVEIDENTITT, HEIMLICHEQUELLEN EINER UNHEIMLICHENKONJUNKTUR[COLLECTIVEIDENTITY: HIDDENSOURCES OF ANUNCANNYSITUATION] 33ff (Rowohlt 2000).9 Ernst-Wolfgang Bckenfrde,Das Grundrecht der Gewissenfreiheit[The fundamental right to liberty],in ERNST-WOLFGANGBCKENFRDE, STAAT, VERFASSUNG, DEMOKRATIE[STATE, CONSTITUTION, DEMOCRACY]200, 219, 226f., 241f. (Suhrkamp 1991); Erhard Denninger,Streitbare Demokratie und Schutzder Verfassung [Contentious democracy and constitutional protection], in HANDBUCH DESVERFASSUNGSRECHTS[TREATISE ONCONSTITUTIONALLAW] 16, Nr. 75 (Ernst Benda et al. eds., 2d ed.1994). See Unified Communist Party v. Turkey 1 Eur. Ct. H. R. 1 (1998), para. 57; Sidiropoulosand Others v. Greece, 4 Eur. Ct. HR 1 (1998), para. 44; Party for Freedom and Democracy (zdep)


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political identity (which is not the case), normative conclusions would stillface important obstacles. With a focus on hermeneutics, prognosis, and, tosome degree, ideological critique, this article surveys some relevant aspects of the Treaty establishing a Constitution for Europe (hereinafter, constitutionaltreaty or CT) as concluded by the intergovernmental conference on June 18,2004, 10 and highlights some significant changes with respect to the earlierdraft presented by the European convention in July 2003 (hereinafter, draftconstitutional treaty or draft CT).11

1.2. Collective identitywhat is it?The phenomena of social identity are regarded, in the aggregate, as a

collective identity and establish a we, insofar as human beings understandthemselves to be members of a group.12 The essential element of collective

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v. Trkey 31 Eur. Ct. H. R. 674 (1999), para. 44; Stankov and the United MacedonianOrganisation Ilinden v. Bulgaria X Eur. Ct. H. R. X (2001), para. 102. For an analysis,see JulieRingelheim,Identity Controversies Before the European Court of Human Rights: How to Avoid theEssentialist Trap?,3 GERMANLAW JOURNAL(2002), available at http://www.germanlawjournal.com.10 Conference of the Representatives of the Governments of the Member States, IGC 2003Meeting

of Heads of State or Government, Brussels, 17/18 June 2004, CIG 85/04, PRESID 27 (June 18,2004), available athttp://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/misc/ 81109.pdf.11 Draft Treaty, supra note 4. Among the early analyses of the draft constitution,see FlorenceChaltiel,Une Constitution pour lEurope, An I de la Rpublique Europenne[A Constitution for Europe:Year One of the European Republic], REVUE DUMARCH COMMUN ET DE LUNION EUROPENNE471, 493(2003); Paul Craig,What Constitution does Europe Need? The House That Giscard Built, THEFEDERALTRUST, August 2003; Michael Dougan,The Conventions Draft Constitutional Treaty: A Tidying-UpExercise that needs some tidying-up of its own, THEFEDERALTRUST, August 2003; J. O. Frosini et al.,I lavori della Convenzione europea[The work of the European convention], QUADERNI COSTITUZIONALI387(2003); Daniel Halberstam et al.,Making It Our Own, A trans-European proposal on amending the draftConstitutional Treaty for the European Union, at http://www.umich.edu/~iinet/euc/MiscHTML/EUnews.html; Fabienne Kauff-Gazin & Martin Pietri,Premires analyses du projet de ConstitutionEuropenne[Initial analyses of the European constitutional project], EUROPE- DITIONS DU JURIS-CLASSEURNr. 3 (2003); Bertrand Mathieu & Michel Verpeaux,Brves remarques sur le projet de ConstitutionEuropenne [Some brief remarks on the European Constitution project], 45 LASEMAINE JURIDIQUE1909f.(2003); Andreas Maurer, Schliet sich der Kreis? Der Konvent, nationale Vorbehalte und dieRegierungskonferenz[Coming full circle? The convention, national reservations, and the intergovernmentalconference], Teil I, at http://www.swp-berlin.org/pdf/brennpunkte/eukonvregkonfanalyse01.pdf; Jrgen Meyer & Sven Hlscheidt,Die europische Verfassung des Europischen Konvents[TheEuropean constitution of the European convention], EUZW 613 (2003); Jos Martn y Prez deNanclares, El proyecto de Constitucin europea: Reflexiones sobre los trabajos[The EuropeanConstitution project: Reflexions on the work thus far ], REVISTA DEDERECHOCOMUNITARIOEUROPEO527(2003); Michael Pinto-Duschinsky,All in the translation What the proposed European Constitutionmeans for Britain, TLS, 13 Jun. 2003, 3; Thomas Oppermann,Eine Verfassung fr die EuropischeUnion[A constitution for the European Union], DVBl., Part 1, 1165, Part 2, 1234 (2003); JrgenSchwarze,Ein pragmatischer Verfassungsentwurf [A pragmatic draft constitution], EUR 535 (2003).12 The linkage of collective identity to psychological processes of individual citizens appears advis-able in order to avoid problematic essentializations, Ulfrid Neumann,Wissenschaftstheorie und
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identity isaccording to social psychologya mutual perception of belonging.13Cognitive processes account for the phenomenon of collective identity.

Social psychology explains it thus: every perception brings about an act of categorization, which then organizes the object of perception into discontinu-ous classes. This categorization provides clarity in an otherwise diffuse world bygrouping potentially infinite and infinitely diverse stimuli into a limited numberof categories. Individuals arrange themselves and others within their system of classification. It is, then, not merely a matter of deciphering what one perceivesbut also of self-locating. The individuals self-conception is based on assignmentof self to particular categories. Social identification is the internalization of asocial category, or the transformation of a given social category into an internal

designation. In metaphorical terms, collective identity is based on entries (as thecore elements of a groups discourse) that compose a sort of collectivedictionary and that must exist for every group.14 A change in the categories, bywhich an individual defines his or her own identity, will consequently influencethis identity. Current social psychology considers social identity to be arelatively fluid construction rather than a stable entity.

Collective identity is social affiliation that is conscious and reflexive. Inexactly this sense, European identity politics strives to shape the Europeancitizen. He or she should conceive of him or she as being part of that group of Europeans organized by the supranational organization and should then actaccordingly in the social sphere. Given that identity is based on social con-structs, the formation of such a European identity, based on a constitutionaldocument, appears possible;15 such a position does not require recourse to thephilosophy of constitutional patriotism.16


Rechtswissenschaft[Scientific theory and jurisprudence], in EINFHRUNG IN DIERECHTSPHILOSOPHIE UNDRECHTSTHEORIE DERGEGENWART[INTRODUCTION TOCONTEMPORARYPHILOSOPHY ANDTHEORY OFLAW], 422,

430ff. (6th ed., Arthur Kaufmann & Winifred Hassemer eds., Mller 1994); this parallelsmethodic individualism, Hans Albert,Methodischer Individualismus und historische Analyse[Methodic individualism and historical analysis], in TEIL UNDGANZES [PART AND WHOLE] 219(Karl Acham & Winifried Schulze eds., Beck 1990).13 On the following,see ORIETTAANGELUCCI, ZUR KOLOGIE EINER EUROPISCHENIDENTITT[ON THEECOLOGY OF AEUROPEANIDENTITY], 33ff., 53ff. (Nomos 2003), which bases itself on the theory of social identity.See especially,HENRITAJFEL, HUMAN GROUPS AND SOCIAL CATEGORIES: STUDIES IN SOCIAL PSY-CHOLOGY(Cambridge Univ. Press 1981) and the theory of social representation in SERGEMOSCOVICI,LA PSYCHANALYSE, SON IMAGE ET SON PUBLIC[THEPSYCHOANALYST: IMAGE ANDAUDIENCE] (PUF 1961) andSOCIALREPRESENTATIONS(Robert Farr & Serge Moscovici eds., Cambrige Univ. Press 1984).14 This terminology is well established;see, e.g.UNANIMA PER LEUROPA. LESSICO DI UNIDENTIT POLITICA[EUROPEANSPIRIT: A LESSON INPOLITICALIDENTITY] (Furio Cerruti and Enno Rudolph eds., ETS 2002).15 It seems almost impossible to predict the number of years before a collective identity is estab-lished. The decade would probably be a proper unit of measurement.But seeANGELUCCI, supranote13, at n.160, 163f., shows that demonstrable changes can occur during a period of five years.16 On this philosophy,see Jrgen Habermas, Geschichtsbewutsein und posttraditionale Identitt[Historical consciousness and postmodern identity], in JRGENHABERMAS, EINEARTSCHADENSABWICKLUNG


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A constitution, certainly, can only be one element in a broad, social evolu-tion that shapes the identities of citizens.17 It is, moreover, a long way from aconstitution, which is initially a mere constitutional text, to the psychologicalprocesses of self-categorization by citizens. It is useful to distinguish betweendirect and indirect effects. A constitution directly affects identity formation, if it is a criterion per se for the relevant identity process. This would require thatthe large majority of citizens identify and affiliate with their group on the basisof the constitution, as such, or on the basis of specific constitutional principles.In turn, constitutional law indirectly affects identity formation when it shapesor creates the relevant criteria that then form identity. In any event, a consti-tutions identity-forming force depends on suitable starting points for citizens

identification processes. This article analyzes the constitutional treatyspotential from this perspective.

2. Elements for identity in the constitutional treaty2.1. A common originResearch on nationalism shows that an important entry in the dictionary of collective identity is a common history.18 A we is most often anchored in a

common past. Such a historical entryto borrow from Jean-FranoisLeotardmay be characterized as a great narrative.19 Many examples can

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[MITIGATING THEDAMAGE] 173ff. (Suhrkamp 1987); Dolf Sternberger,Verfassungspatriotismup[Constitutional patriotism], in 10 SCHRIFTEN, especially17ff., 24, 30f. (1990).See also Joseph H.H.Weiler, Federalism without Constitutionalism: Europes Sonderweg, in THEFEDERALVISION63 (KalypsoNicolaidis & Robert Howse eds., Oxford Univ. Press 2001).17 This can be demonstrated by comparison with Germany, where the identity-forming role of the

Basic Law seems rather important.See J. Gebhardt,Verfassungspatriotismus als Identittskonzept der Nation[Constitutional patriotism as national identity], AUSPOLITIK UNDZEITGESCHICHTEB 14/93, 31,n.33 (1993); M. RAINER LEPSIUS, INTERESSEN, IDEEN UNDINSTITUTIONEN[INTERESTS, IDEAS, ANDINSTITUTIONS] 63, n.77 (Westdeutscher 1990); H. Rausch,Politisches Bewutsein und politischeEinstellungen im Wandel[Political consciousness and political attitudes in flux], in DIE IDENTITT DERDEUTSCHEN[GERMANIDENTITY] 119, 130 (Werner Weidenfeld ed., Hanser 1983). On the relevantrole of the Federal Constitutional Court,seethe articles in Schuppert & Bumke,supranote *; UlrichHaltern, Integration als Mythos[Integration as myth], JR 45 (1997); Josef Isensee,Die Verfassung alsVaterland [The constitution as the fatherland ], ALLMANACH71 (1988).18 BENEDICTANDERSON, DIE ERFINDUNG DERNATION [THE INVENTION OF THENATION] (Campus 1996);KARL DEUTSCH, NATIONENBILDUNG NATIONALSTAAT INTEGRATION[NATION-FORMATION, NATION-STATE,INTEGRATION] (Bertelsmann Universittsverlag 1972); ERNESTGELLNER, NATIONALISMUS UNDMODERNE[NATIONALISM ANDMODERNITY] (Rotbuch 1991); ERIC HOBSBAWM, NATIONEN UNDNATIONALISMUS[NATIONS ANDNATIONALISM] (2d ed. 1992); HAGENSCHULZE, STAAT UNDNATION IN DER EUROPISCHENGESCHICHTE[STATE ANDNATION INEUROPEANHISTORY] (2d ed., Beck 1995).19 JEAN-FRANOISLYOTARD, DAS POSTMODERNEWISSEN [POSTMODERNWISDOM] 63ff., 112 (4th ed.,Passagen 1999); JEAN-FRANOISLYOTARD, DER WIDERSTREIT[THE CONFLICT] 12, 251ff. (2d ed., Fink1989).


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be cited showing how an intellectual elite construed a narrative out of amor-phous historical material, which it then used as a common whence (orwhere we are from) for a planned, emerging, or existent group.20

Whence narratives circulating within European societies vary greatlyfrom nation to nation. This is hardly astonishing, since they originated at atime when mutual dissociation was politically desired by most European states.At present, no socially anchored, pan-European narrative unites most Unioncitizens under a persuasive, common whence.

Considering both the contingency and construction of the currentnarratives, a project to write a new and common European history seemspossibleif it can pursue, in a sustained way and with the proper instruments,

the (re)interpretation of the historical materials. In text-centered culture, suchas Europe, it stands to reason that the contours of a groups whence can bewritten into the fundamental document of its political structure. To the extentthat a constitution is supposed to contribute to such a narrative, the preamble isparticularly well suited to the task.21 Indeed, the constitutional treaty attemptsin its preambleas do many of the new constitutions of Central and EasternEuropeto establish the contours of such a narrative. The preamble candirectly affect identity formation through the promulgation and reading of thepreamble itself. Or it can indirectly influence the relevant narratives and,thus, the concomitant constructions of reality by providing an origin for furtherconstructions, such as are found in educational materials.22

At this point, one encounters a most remarkable difference between theconstitutional treaty and the conventions draft. The convention tried toanchor a common European narrative in a myth that was deleted by the inter-governmental conference. The convention puts at the beginning of the draftconstitutional treaty not words but a picture. For the formation of identity, thisappears to have been a shrewd move, since a picture, as is often said, is worth

a thousand words. A picture can frequently deliver a thought with muchgreater impact than language. This is especially true in the multilingualEuropean Union with its translation problems. On opening the conventions


20 On the difficulties of such constructions, especially in a European context,seeF. Hanschmann,Geschichtsgemeinschaft[Historical community], in RECHTSGESCHICHTE[HISTORICAL JURISPRUDENCE](forthcoming 2004).21 On the functions of preambles,see PETER HBERLE, EUROPISCHEVERFASSUNGSLEHRE[EUROPEANCONSTITUTIONALSTUDIES] 273ff. (Nomos 20012002); Horst Dreier,Prambel, in 1 GRUNDGESETZ[hereinafter GG], n.8 (Horst Dreier ed., 1996); Josef Isensee,Staat und Verfassung[State and Constitution], in 1 HBSTR 13, n.4 (Josef Isensee & Paul Kirchhof eds., 2d ed. 1995);Christian Starck,Prambel, in 1 DASBONNERGRUNDGESETZn.29ff. (von Mangoldt et al. eds., 1999);H.-D. Treviranus,Preamble, in 3 EPIL 2, 1097f. (Rudolf Bernhardt ed., 1997); Armin vonBogdandy,Preamble, in TENREFLECTIONS ON THECONSTITUTIONALTREATY FOREUROPE3 (Bruno de Witteed.),available athttp://europa.eu.int/futurum/documents/other/oth020403_en.pdf.22 See J. ALDEBERT, EUROPISCHESGESCHICHTSBUCH. GESCHICHTLICHESUNTERRICHTSWERK FR DIESEKUNDARSTUFEI UNDII [EUROPEANHISTORY FORSECONDARYSCHOOLINSTRUCTION, VOLS. I ANDII] (1992).
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draft constitutional treaty, the Union citizen sees two lines of ancient Greekletters. Since only a small, vanishing segment of the population still hasknowledge of ancient Greek, most Union citizens do not perceive a thought,expressed in words, but an image with various associations. One might assumethat this pictureassisted by the name Thucydidesevokes ancient Greece.

For most Europeans, ancient Greece represents a myth. A myth is a foundingnarrative, a story told to illuminate the present by the light of its origins, toldto orient oneself in time and space. A myth contains a truth of a higher order,thus providing normative standards with formative power.23 It can uniteseparate individuals, by way of a shared self-conception and shared knowl-edge, into a we: not only in jointly binding rules and values but also in memory

of a shared past.The Hellenic enthusiasms of the late 18th and early 19th centuries stilllargely determine the content of this mythical Greece. Ancient Greece is therealm of beautiful freedom,24 evocative of dashing heroes like Hercules,Achilles, and Odysseus;25 of a world that crafted eternal works of art, philoso-phy, and science; of free and virtuous citizens prepared to fight despotism. Theworld of ancient Greece represents the Other to our present, petty-mindedepoch, which nevertheless is still bound to its standards. It is no mere coinci-dence that the most celebrated Western cultural critic was a classical philologist:Friedrich Nietzsche. It is no coincidence that Whitehead described the whole of Western philosophy as footnotes to Plato.26 Scholarly research into the far lessluminous reality of ancient Greece has hardly dimmed the myths radiance.27

The image as an introduction to the constitution for Europe evokes an attrac-tive and accessible idea of where we come from and which moral and culturalstandards we consider authoritative.28 Although many countries claim to beancient Greeces heirs, most Europeans would assert that their claim is thestrongest; this is one facet of the European idea that is universal and particular

at the same time, emblematizing a narrative that relates to widespread and pos-itive associations and common knowledge. This symbolism is maintained, in nosmall part, by the entertainment industryalmost always with positive depic-tions. With its opening quotation from Thucydides, the draft constitutionaltreaty professed its allegiance to this myth and claims it as its own.

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23 JANASSMANN, DAS KULTURELLEGEDCHTNIS[CULTURALMEMORY] 52, 75f. (3rd ed., Beck 2000).24 GEORG W.F. HEGEL, VORLESUNGEN BER DIEPHILOSOPHIE DERWELTGESCHICHTE[LECTURES ON THEPHILOSOPHY OFWORLDHISTORY] I, 249 (Johannes Hoffmeister ed., 1955).25 In this sense, the Ode, which underlies the anthem of the Union (seeart. IV-1, subpara. 2, CT),sings of an especially radiant figure of Greek mythology.26 ALFREDNORTHWHITEHEAD, PROZE UNDREALITT[PROCESS ANDREALITY] 91f. (Suhrkamp 1979).27 On the recent research,see WOLFGANGSCHULLER, GRIECHISCHEGESCHICHTE[GREEKHISTORY] 82ff.(Oldenbourg 1980).28 To what degree ancient Greece represents a similar myth to the Muslim world is an entirelyseparate topic.


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All this has been completely deleted from the constitutional treaty, however.Instead, it starts by referring to the relevant political authorities of the memberstates. Rather than being based on a distant myth, the Unions constitution isbased on the highest-level political representatives of the member states. The con-stitutional treaty then refers to the cultural, religious and humanist inheritanceof Europe, but these words do not evoke any myth, and certainly no golden age.

Moreover, the past to which the constitutional treaty is linked is quite different;it is a past that the convention largely neglected. The conventions preamble lacksany clear allusion to the genesis of European integration: the catastrophes of thetwentieth century and particularly World War II. Such a reference could alsohave provided a useful answer to the question why?: the architects of Europe

emerged from the horrors of the second World War determined to prevent eventhe possibility that something similar could reoccur.29 To instill these experiencesand this resolve in a constitutional document, with a formulation that is accessi-ble and agreeable formost citizens of all member states, seems to be the mostimportant challenge for the preamble to a European constitution that attempts tooffer a persuasive whence narrative. One might counter that the conventionspreamble does refer to the ancient division that is to be transcended, andarticle I-3, paragraph 1, declares that the Unions aim is to promote peace.These, however, are insubstantial, abstract formulations that squander thepersuasive power of the catastrophic imagery.

The intergovernmental conference introduced the words after bitterexperiences30 into the conventions third recital31 of the preamble. Withthese words, the constitutional treaty creates links to the innumerable per-sonal narratives, continuing within many families, of the catastrophic eventsof the twentieth century. These links appear as possible grounds for a commoninterpretation of crucial historic events that might also imbue the EuropeanUnion with a deep significance. Perhaps the objection will arise that the for-

mula bitter experiences provides only a minimal reading, since neithernames nor events are indicated nor is there any allocation of responsibility.Yet, this small common ground might present a better base for a Europeanidentity than the glorious, but distant, myth of ancient Greece.

An echo of the catastrophe resounds in the event that the CT (art. I-6a,subpara. 5) and the draft CT (art. IV-1, subpara. 5) celebrate as Europe Dayan


29 Ulrich Everling,The EU Between Community and National Policies, in PRINCIPLES OFEUROPEAN

CONSTITUTIONALLAW (Armin von Bogdandy ed., 2005 forthcoming). See the fifth recital of the pre-amble to the European Coal and Steel Community Treaty of 18 April 1951 (BGBl, Part II, 447(1952)).30 The English version reads reunited after bitter experiences; similar to the French and Italian,dsormais runie; other versions, however, are not so euphemistic. In the German, for example,there is no previous stage of European unity: nunmehr geeintes Europa; the Hungarian versionproposes a further aspect by considering Europe as jraegyesl,i.e.,as reuniting.31 This is now the second recital of the CT.


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attempt to establish a rite of memory to form or sustain identity.32 Theconstitutional treaty implicitly recalls French foreign minister RobertSchumans declaration of May 9, 1950, which led to the now expired treatyestablishing the European Coal and Steel Community (ECSC). Schumansdeclaration could be interpreted as the point in world history at which thetraditional concept of the nation-state was overcome and, thus, Europe againtook its position as the spearhead of world spirit. But this reading seemsimprobable; the declaration could just as well be understood not as a collec-tively European, but as a unilaterally French, act; as politically calculated;33and not resulting from the overwhelming will of the European peoples, or evenan action of their own. The celebration of this event could also be read as bow-

ing to the primacy of French diplomacy, further fueling resentment.34

Againstsuch a backdrop, a persuasive rite of celebration of the European Union or itsconstitutionas an important means for grounding it in public discourse and,thus, in the self-conception of the citizenrycould scarcely be established.

2.2. Who we are 2.2.1. A community of destiny A common history is indisputably an important element in making a groupout of many individuals. Conceptions vary as to further relevant elements.One line of research suggests that the perception of common group membershipis only possible with positive, emotional bonds; a we requires that people pointedlylike each other.35 Socio-psychological research, however, attrib-utes little importance to such bonds. The formation of a group and thecorresponding identity depend on the perception of belonging to a single socialcategory, not on an emotional disposition.36 The mental mechanisms of perception, not their positive evaluations, are the basis of group formation.The latter positionwhen freed from the clutches of social romanticismis

thoroughly plausible: bitter political opponents such as Oskar Lafontaine andGerhard Schrder would both consider themselves patriotic and responsibleGermans. Similarly, for example, amiable feelings toward the Germans on the

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32 On the significance of rites of memory, see ASSMANN, supra note *, at 56ff. On the function of national holidays, see Peter Hberle,supra note *, at 18, 124, 183f., 493; Eckard Klein,DieStaatssymbole[State symbols], in 1 HBSTR 17, n.1, 11 (Josef Isensee & Paul Kirchof eds., 2d ed.1995).33 For the background,see e.g., BINOOLIVI, L EUROPA DIFFICILE[EUROPEANDIFFICULTY] 30ff. (Il Mulino1998).34 On resentment,seeLARRYSIEDENTOP, DEMOCRACY INEUROPE113ff. (Penguin 2000).35 Joseph H.H. Weiler,To be a European citizen: Eros and civilization, in JOSEPHH.H. WEILER, THECONSTITUTION OFEUROPE324, 338f. (Cambridge Univ. Press 1999); Ulrich Haltern,Europischer Kulturkampf [European Kulturkampf ], 37 DER STAAT 591, 620 (1998); MICHAELZRN, REGIEREN JENSEITS DESNATIONALSTAATES[GOVERNING BEYOND THENATION-STATE] 257, 348 (Suhrkamp 1998).36 ANGELUCCI, supranote 13, at 44f.


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part of the majority of the Dutch are not a prerequisite to a Dutch self-perceptionof belonging to a common group with the Germans.

The constitutional treatys self-designation as a constitution for Europe is per-haps its strongest contribution to promoting a sense of group membership amongUnion citizens. Considering the public debate that accompanied the conventionand the ratification of the constitutional treaty, a majority of Union citizens willconsider the use of the term constitution as symbolic, namely, that there is acommon political community to which they all belong. Many will see the shiftfrom treaty to constitution as the will, made manifest, of their national rep-resentative institutions to form a single group among European peoples.

Certainly, the terminology used to designate the document is remarkably

ambivalent. Given the relevant public debate, treaty suggests much less of awe among Union citizens than does constitution. Thus, the ambivalencein the terminology is actually an ambivalence over the Unions course of devel-opment. Many provisions even suggest an understanding that is redolent moreof international law than constitutional law; for example, the provisions onratification and revision in articles IV-443447 of the constitutional treaty(arts. IV-78 draft CT). The compromise designation, Treaty establishing aConstitution, seems to allow for both courses of development. The intergov-ernmental conference strengthens this reading significantly by placing theheads of government at the head of the preamble.

Nonetheless, usage seems to be settling on the designation constitutionrather than treaty or constitutional treaty. This more concise term,constitution, suggested forcefully even by the format of the IGC document, hasapparently prevailed in the public debate. If this term becomes commonplace and, more importantly, if constitution becomes an important rhetorical termfor European politics, as hasGrundgesetz(Basic Law) in Germanythen theconstitution will become a powerful entry in the dictionary of European collec-

tive identity. Union citizens will frequently come across a term that consistentlypromotes their self-concept as a group organized by the European Union.Such an understanding finds further support in the constitutional treaty.

First, it asserts that thedifferentpeoples of the member states formonesociety(art. I-2, sentence 2).37 Moreover, the third recital of the preamble (formerlythe fourth recital of the draft CT) states that the peoples of Europe are deter-mined . . . united ever more closely, to forge a common destiny. The preamblethereby invokes one of the strongest concepts for the formation of a group: thecommunity of destiny.38 The singular common destiny, applied to all of the involved peoples, implies that future challenges will not fall to any specificpeople; rather, all European peoples will share a single common future.


37 The CT skillfully uses the potentials offered by the conceptual pairs peoplesocietyand culturecivilization.38 Among the prominent French intellectuals,see e.g., EDGARMORIN, PENSER LEUROPE[THINKEUROPE](Gallimard 1987) (the Italian edition, PENSARE LEUROPA129ff. (Feltrinelli 1990), is cited here).


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A common destiny also seems capable of bringing persons together into agroup even where emotional bonds are weak.

The formulation, to forge a common destiny, suggests an unusual idea.Destiny is something experienced, or suffered; the term implies a future that isalready largely determined.39 Only an open future can be forged. With thecombination of destiny and forge, the constitutional treaty may indicatethat the European peoples can no longer aspire to develop independently of one another, but that a common course of developmentthanks to theUnionis forgeable. The concept of a European community of destiny ispowerful. It is associated with a widespread worldview among Europeans: thatof a struggle between the various regions of the world.

The introduction of the concept community of destiny reveals the victoryproclaimed by supporters of national competence as a minor victory indeed.The constitutional treatys preamble lacks the finality of the ever closerunion among the peoples of Europe that is enshrined in the first recital of theEEC treaty.40 Moreover, the triumph of national competence is hollow becausethe preamble contemplates the determination of the peoples of Europe (andnot merely of the heads of state, as in the EEC Treaty) to forge a commondestiny. Moreover, the preamble to the Charter of Fundamental Rights, whichforms part II of the constitutional treaty, reiterates the ever closer union of the first recital. Even more important, if the collective perception that Unioncitizens belong to an EU-organized community of destiny is firmly established,this would provide a much stronger impetus for the future expansion of Unioncompetences than any determination made by the heads of state.

This concept of a community of destiny is supported by another term,which has ever-increasing importance in European law and the representationof European politics: the concept of area.41 The Unionlike a stateisinvisible, in that one can see neither an organization nor a legal person. The

printing of maps that render a state as a visible, colorful zone and, thus, asan area, has been extremely important to the establishment of nations. Forexample, the news on television feeds German identity daily with a weathermap that isolates Germany as an area.

A. von Bogdandy 305

39 Destiny: a predetermined course of events often held to be anirresistablepower or agency.,available at Merriam-Webster Online, http://www.m-w.com/cgi-bin/dictionary?bookDictionary&va destiny [emphasis added]. On the Frenchdestin: Puissance surnaturelle quifixerait le cours des vnements, PETITLAROUSSE ILLUSTR312 (1979).

40 SeeHermann-Josef Blanke,Essentialia des Entwurfs des Europischen Verfassungsvertrages[Thedraft European constitution: Essentials], RIVISTA EUROPEA DI CULTURA E SCIENZA GIURIDICA95, 147(2003).41 Conclusions of the Presidency of the Tampere European Council, Bull. EU 101999, 7ff. On thedarker implications of theGroraum, seeChristian Joerges,Europe a Groraum? Shifting LegalConceptualisations of the Integration Project167, 189ff.,and John McCormick,Carl Schmitts Europe:Cultural, Imperial and Spatial Proposals for European Integration, 19231955133, 140f., both inDARKERLEGACIES OFLAW INEUROPE(Christian Joerges & Navraj S. Ghaleigh eds., Hart 2003).
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The Single European Act (SEA) introduced the legal concept of area in thedefinition of the internal market.42 The next stage was the Treaty of Amsterdamsarea of freedom, security and justice.43 With that treaty, the Union also becamea defensible area.44 The constitutional treaty, in its fourth recital, makes of it aspecial area of human hope. The draft constitutional treaty even starts with ageographical reference, namely, the continent of Europe; however, the IGCdeleted this without substitution.45 A shift in association of the European Unionfrom an organization in Brussels to an area, in which Union citizens live, wouldbe a significant step toward establishing a European identity.

2.2.2. A chosen community

It is useful to the process of identity formation, although not absolutely necessary,if the relevant group has a positive connotation. The history of nationalismhas many examples of social constructions in which a group allocated superi-ority to itself above all other groups.46

The constitutional treaty contains elements from which one might infer aEuropean perception of itself as exceptional. A first instance of such an ele-ment can be found in the now-deleted first recital of the draft constitutionaltreaty, which describes Europe asa (although not the) continent that hasbrought forth civilisation. The fourth recital47 is especially striking in itsdescription of Europe as a special area of human hope. The possible impli-cation here is stronger in the French version: un espace privilgi de lesprancehumaine. Apparently, Europe would offer the best chance for the realization of the hopes not merely of Europeans but of humankind as a whole.Corresponding to this, the verses to which Beethoven composed the music which, according to article I-6a, subparagraph 2 CT (art. IV-1, subpara. 2 draftCT), shall be the Unions anthemrefer to the daughter of Elysium, the islandof the blessed.48


42 Art. 13 SEA; art. 14, para. 2 EC; art. III-14, para. 2 CT.43 (Art. 2, indent 4 EU; art. I-3, subpara. 2 CT). On the history of the area of freedom, securityand justice, see http://europa.eu.int/comm/justice_home/key_issues/step_by_step/step_by_ step_09_2002_de.pdf.44 Art. 11, para. 1, indent 1 EU, integrity of the Union; art. I-40 CT.45 Here, the draft constitution employs a half-truth: Europe is not a continent but a subcontinent.46 Cf., e.g., VINCENZOGIOBERTI, DEL PRIMATO MORALE E CIVILE DEGLI ITALIANI[MORAL ANDCIVILSUPREMACY

OFTHEITALIANS] (1843); GEORGW.F. HEGEL, VORLESUNGEN BER DIEPHILOSOPHIE DERGESCHICHTE[LECTURESON THEPHILOSOPHY OFHISTORY] 135, 137f. (H. Glockner ed., 1928).47 This is the fifth recital of the draft CT.48 For more on the final movement of Beethovens Ninth Symphony, converted in 1972 by Herbertvon Karajan into the European anthem,see Caryl Clark,Forging Identity: Beethovens Ode asEuropean Anthem, 23 CRITICALINQUIRY789 (1997). On the symbols,see generallyMARKUSGLDNER,POLITISCHESYMBOLE DER EUROPISCHENINTEGRATION: FAHNE, HYMNE, PA, BRIEFMARKE, AUSZEICHNUNGEN[POLITICALSYMBOLS OFEUROPEANINTEGRATION: FLAG, HYMN, PASSPORT, STAMP, HONORS] (Lang 1988).
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Further, the flag (as determined in article I-6, subparagraph 1 CT; art. IV-1,subpara. 1 draft CT) strongly, if also subtly, confirms the vision of Europeansas an exceptional people. Here, the circle of twelve golden stars is of particularsignificance, as it elicits connotations of Europeans as a chosen people in theChristian tradition.

The circlea line that infinitely returns to itselfis simultaneously thesimplest and the most complete geometric form. Without beginning or end, itis a representation of eternity, as are the stars that compose it. The choice of twelve stars is not a miscount (despite the fact that there are twenty-five mem-ber states) but part of an intentional scheme. As the number of the closedcircle, twelve is the most symbolic of all numbers: the twelve tribes of Israel,

Christs twelve apostles, the heavenly Jerusalems twelve gates. And twelvestars, arranged as a wreath, form the crown of the woman of the apocalypse.The Revelation of John 12:12 reads: And there appeared a great wonder inheaven; a woman clothed with the sun, and the moon under her feet, andupon her head a crown of twelve stars: And she being with child cried,travailing in birth, and pained to be delivered. Prominent readings interpretthe crown of twelve stars as a sign of the birth of the messiah, of the peopleof God,49 or of a universal, new beginning of history itself.50 Thus, the flagencompasses a promise of salvation, election, and predestination.

2.2.3. A community of valuesIt is a widely held belief that the declaration of values in the fundamentaldocument of the Union is particularly well suited to fostering European identityand citizens identification with the Union.51 In the language of this article,such values might be further entries in the dictionary of European identity.Social scientists confirm this belief and recommend the promulgation of highlyabstract values.52 As a result, similarly oriented processes of categorization

A. von Bogdandy 307

49 C. BRTSCH, DIE OFFENBARUNG JESUCHRISTI[THEREVELATION OF JESUSCHRIST] 56ff. (1955); ALFREDWINKENHAUSER, DIEOFFENBARUNG DES JOHANNES[THEREVELATION OF JOHN] 92f. (1959); R. DAMERAU, DIEOFFENBARUNG DES JOHANNES. NACH EINEMKOMMENTAR DESREFORMTHEOLOGEN JOHANNESHAGEN (DEINDAGINE) [A COMMENT BY THEREFORMTHEOLOGIAN JOHANNESHAGEN] 120 (1984); JOHANNESBEHM, DIEOFFENBARUNG DES JOHANNES64f. (1949); EDUARDLOHSE, DIEOFFENBARUNG DES JOHANNES62 (1960).50 JACQUESELLUL, APOKALYPSE76f. (Neukirchener 1981).51 Jrgen Schwarze,supranote *, at 535, 539ff.; B. Wgenbauer,Die Europische Verfassung, (k)einPlatz fr abendlndische Werte?[The European constitution: What place for Western values?], EUZW 609(2003).52 Friedhelm Neidhardt,supranote *, 15, 27f.; on the role of principles,seeDieter Fuchs,Demos und Nation in der Europischen Union[Demos and nation in the European Union], in ZUR ZUKUNFT DERDEMOKRATIE[THE FUTURE OFDEMOCRACY] 215, 230ff. (Hans-Dieter Klingemann & FriedhelmNeidhardt eds., Sigma 2000); on the social functions of promulgating highly abstract values,seeGert Degenkalbe,ber logische Struktur und gesellschaftliche Funktionen von Leerformeln[On thelogical structure and social function of naked formulas], 17 KLNERZEITSCHRIFT FRSOZIOLOGIE UNDSOZIALPSYCHOLOGIE, 327, 333ff. (1965).


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could be stimulated, while the abstract nature of such values would keepdissent hidden. In constitutional theory, this is described as a constitutionsmanifesto function.53

This approach has played to great effect in European constitutional politics.The efforts to represent the Union as an expression of the ethical convictionsof Union citizens explains the rise of the term value as a key constitutionalconcept. Its first spectacular appearance was in the year 2000, in the firstrecital of the Charter of Fundamental Rights (now integrated into the consti-tutional treaty), which declares common values to be the basis of the Union.The term is also the hub of the constitutional treatys first recital and evenfound its way into a prominent position in its operative part (arts. I-1, para. 2

and I-2 CT).54

Values are normative convictions of a highly abstract order and are partof the social identity of the individual.55 With its recourse to values, theconstitutional treaty asserts its roots in the ethical convictions of anoverwhelming majority of Union citizens. It presents the entire Union citizenryand the Union itself as a community of values.56 Scholars of European lawwill recognize that this model goes beyond Walter Hallsteins merely legal com-munity. It would not be difficult to characterize this as an assertion of norma-tive homogeneity, the advancement of which could then become an aim of theEU, pursuant to article I-3, paragraph 1 CT. It is exactly at this point that theduty to respect national identities (art. I-5, para. 1 CT) must perform its limit-ing function.57

With the term value, the constitutional treaty posits an identity of Unioncitizens that connotes similar expectations both of the political system and of


53 G. Frankenberg,Die Rckkehr des Vertrags[Return of constitution], FS HABERMAS507, 513ff.(2001).

54 In contrast, one can also infer the Unions lack of rootedness from the prominence of the values.This, however, only confirms the constructive will which underlies the CT.55 The history of the concept value is complex.See, e.g., Christian Starck,Zur Notwendigkeit einer Wertbegrndung des Rechts[The necessity for normative values in the law], and Ernst-WolfgangBckenfrde,Zur Kritik der Wertbegrndung des Rechts[Criticism of normative values in the law], bothin RECHTSPOSITIVISMUS UNDWERTBEZUG DESRECHTS[POSITIVERIGHTS ANDVALUES IN THELAW] 33, 45f., 47(Ralf Dreier ed., Steiner 1990); NIKLASLUHMANN, GIBT ES IN UNSERERGESELLSCHAFT NOCH UNVERZICHT-BARENORMEN? [WHAT AREOUR INDESPENSABLESOCIETALSTANDARDS?] 18ff. (Mller 1993); JRGENHABERMAS, FAKTIZITT UNDGELTUNG[BETWEENFACTS ANDNORMS] 312 (5th ed., Suhrkamp 1997);

ANDR-JEANARNAUD, POUR UNE PENSE JURIDIQUE EUROPENNE[TOWARD AEUROPEANLEGALTHOUGHT] 23(PUF 1991). For a good overview,see alsoGOTTLIEBBRUNNER, GRUNDWERTE ALSFUNDAMENT DER PLU-RALISTISCHENGESELLSCHAFT[BASICVALUES AS THEFOUNDATION OF APLURALISTICSOCIETY] 109ff. (Herder1989).56 Art. I-2: These values arecommonto the Member States in a [i.e., a single] society . . . (emphasis added).57 SeeArmin von Bogdandy,The European Union as a human rights organization? Human rights and the core of the European Union, 37 COMMONMKT. L. REV. 1307, 1317 (2000).


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civic behavior: These values are common to member states in a society inwhich pluralism, non-discrimination, tolerance, justice and equality betweenman and woman prevail (art. I-2, sentence 2 CT). This formulation does notyet imply a collective identity in the sense of identification with the Union;however, such identity politics seem to aim at stimulating processes of identi-fication by citizens with the Union by way of a manifestation of these valuesand of the legal principles that give them effect.

At this point, the IGC rejects another most dangerous, and possibly evenfoolish, proposal of the convention. In selecting democracy as the theme of theintroductory quotation (which the IGC deleted), the convention distinguisheddemocracy as the highest value of the Union. This primacy, though, arises

not solely from the prominent position. The quotation is from Pericles funeraloration for the soldiers who died in the Peloponnesian Wara speech in whichdemocracy is elevated as the value that justifies the sacrifice of human lives.58

To suggest democracy as the Unions primary value is risky. Certainly, mostUnion citizens value democracy highly, yet this introductory use seeminglyintimates that the Unionat least as the draft constitutional treaty wouldhave had itexists for the purpose of realizing democratic ideals. Manycitizens, however, mayrightlybelieve that democracys status in the Unionis not fully satisfactory; moreover, considering the institutional alterations,the constitutional treaty is unlikely to improve significantly the so-calleddemocratic deficit. Thus, discord would have been likely between the draftconstitutional treatys most prominent declaration and the everyday experi-ence of Union citizens. This would not have helped to foster identity but,rather, alienation and cynicism.

Even the particular understanding of democracy chosen, as becomesapparent from the translations, seemed more likely to promote alienationrather than identification. The German translation conveys an understanding

of democracy with which Wilhelm II or Benito Mussolini would find little fault,namely, the orientation of policies toward the majoritythus overextendingdemocracy to include paternalistic, technocratic, or even authoritarian formsof government so long as the eventual output is for the public good.59 In the

A. von Bogdandy 309

58 Thus, shortly thereafter in Pericless funeral oration: I believe that a death such as theirs hasbeen the true measure of a mans worth; it may be the first revelation of his virtues, but is at anyrate their final seal. Thucydides II,available athttp://www1.umn.edu/humanrts/education/thucydides.html, (Richard Hooker ed.) Further: For a mans counsel cannot have equal weight orworth, when he alone has no children to risk in the general danger.Id. Especially in Americanconstitutional theory, willingness to sacrifice sometimes considered as a key to a collective identity,seePaul Kahn,American Hegemony and International Law, CHI. J. INTL L. 1, 8 (2000); for a similarviewpoint,see alsoUlrich Haltern,On Finality, in PRINCIPLES OFEUROPEANCONSTITUTIONALLAW, supranote *.59 The second sentence of article I-44 confirms such a thoroughly problematic understanding of democracy. This sentence, however, in light of articles I-2 and article I-7, paragraphs 23, can beinterpreted as a partial, by no means complete definition of the principle of political equality.
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French text, however, democracy is formulated as majority rule, which imme-diately aroused concern among the smaller states.60 Justifying their concern,German foreign minister Joschka Fischer, shortly after the finalization of thedocument, urged his Finnish counterpart not to raise any objections to the textof the draft constitutional treaty. By deleting the passage, the IGC avoidedsubstantial pitfalls.

The constitutional treaty contains a hypertrophy of values: respect forhuman dignity, liberty, democracy, equality, the rule of law and respect forhuman rights, as well as pluralism, non-discrimination, tolerance, justice,solidarity and equality between women and men in article I-2. The draft con-stitutional treaty went so far as to include equality of persons, freedom,

respect for reason in the preambles first recital, although it has been replacedwith a more concise formula. Even so, the declaration of values seems ratherdiffuse and powerless. No manifesto, for which Europe stands, is discernible.The spirit, the will, and the quill, so to speak, fall short of what is needed toformulate a suitable and persuasive statement. Equally weak is the Unionmotto: United in diversity.61 It hardly affords any further ground for com-mon identification, especially since it describes the Union as an end in itself,instead of connecting with the ethical convictions of Union citizens. In theentire document, there is no formulation that might be a credible maxim toadorn building entrances or frontispieces in books and passports.

2.2.4. Who we are noton anti-AmericanismCollective identity requires identification with ones in-group and dissociationfrom out-groups.62 Just as an I needs and implies a you, a we needs acounterpart group. A group must be cognizant of its own peculiarity. This doesnot suggest that a group necessarily defines itself as an opponent, much less asan enemy, of other groups, as Carl Schmitt has postulated with regard to polit-

ical communities.63

Other groups are not the Other; they are merely differenti-ated in certain respects. The untenability of the radical position is proven bysuccessful cooperation among self-cognizant groups and by the functioning of multiple, social identities. An adequate understanding of group formation,thus, does not negate that which unites all humans, as shown by the universalpossibility of communication and normative agreement.

Distinguishability is, nonetheless, necessary if Europeans are to form a group.This insight has formed the basis of European identity politics since the 1970s;it has teeth but does not bite. The Treaty on European Union allowed its entry


60 This reference is credited with thanks to participants in a seminar with Prof. MarttiKoskenniemi in Helsinki in August 2003.61 art. I-6a, subpara. 3 CT; art. IV-1, subpara. 3 draft CT.62 ANGELUCCI, supranote 13, at 40.63 CARLSCHMITT, DERBEGRIFF DESPOLITISCHEN[THECONCEPT OF THEPOLITICAL] 26f., 29f., 50ff. (6th ed.,Duncker & Humblot 1996).


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into primary law. The constitutional treaty attempts to substantiate the unique-ness of Europeans among the wider world (art. I-3, para. 4; or, more conspic-uously in the French text of the draft CT; le reste du monde). Exceptionalamong the other regions of the world at large, Europe self-pleasingly distin-guishes itself as a special area of human hope (fourth recital).

Yet the United States also claims this privilege, and in a way that Europeanscan hardly ignore. Thus, all elements by which the constitutional treaty seeksto establish Europeans as extraordinary refer inevitably (though not explicitly)to the United States. The constitutional treaty affirms the notion that Europecan find its identity only in delimitation from, perhaps even by standingagainst, the U.S.64 The delimitation arises, on the one hand, from the European

social model. The second recital finds Europe striving for the good of all itsinhabitants, including the weakest and most deprived. The last six words arethe most telling. Building thereon, article I-3, paragraph 3, subparagraph 2establishes, as an objective,social justice and protection, not justice alone as inthe U.S. Constitution. On the other hand, delimitation arises also from the posi-tioning in relation to international law. [The Union] shall contribute . . . tostrict observance and to development of international law, including respectfor the principles of the United Nations Charter (art. I-3, para. 4); this com-mitment is significant, particularly in the wake of disputes over theInternational Criminal Court, the Kyoto Protocol, and the war in Iraq. It is dif-ficult to interpret it as anything but an act of differentiation vis--vis theUnited States.

There is danger in this path. These elements might be used to foster an anti-American self-image among Europeans. The currently prevalent self-perceptionof a common Western world might be weakened by attempts to realize themultipolar world dear to France, Russia, and China, in particular. Not onlywould this be threatening to international stability; it is also quite possible that

systematic antagonism toward the United States would divide rather thanunite the Union.65 The IGC attenuated these features. The first recital of thepreamble now refers to universal values that form the basis of the ungeo-graphical West that includes most of Europe and the United States. By deletingthe initial quotation from Thucydides, the Europeans also avoid the impressionof claiming an exclusive right to the heritage of Greece, which might havecaused substantial irritation in the Atlantic relationship.66

Yet the need for distinguishability remains. From the perspective of identityformation, much will depend on the operation of title V of part III on the UnionsExternal Action. A European identity will be substantially strengthened if thenew procedures present Europeans as a group that acts with respect to other

A. von Bogdandy 311

64 Cf.Claus Koch,Europanur gegen das amerikanische Imperium[EuropeSolely to counter Americanempire], MERKUR, SONDERHEFTEUROPA UNDAMERIKA617/618, 980ff. (2003).65 Christoph Bertram,Strke und Schwche[Strength and weakness], MERKUR647, 200, 206 (2003).66 Charles Fried and Anne-Marie Slaughter suggested this insight.


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political communities. This has always been a core element of what Eurospeakconsidered European identity.67 In this regard, the constitutional treatydefines European identity: whereas article 2 of the EU treaty requires the Unionto assert its identity internationally, article I-3, paragraph 4 CT, which takes itsplace, requires the Union to uphold and promote its values and interests.

2.3. Political institutions and political participationIf the external aspect of European identity politics requires a European foreignpolicy, the internal aspect demands institutions that allow political participa-tion at the Union level, thereby stimulating the processes of identificationamong the participating citizens. In the republican tradition, the inclusion of

citizens in political decision making is considered paramount to the formationof collective identity.68 Over the years, the provisions regarding the EuropeanParliament, political parties, and European citizenship have been introducedwith this end in mind. Yet, these amendments, so far, have not triggered asubstantial European identity among most citizens.

Many attribute this relative failure to the diffuseness of European institu-tions and their lack of transparency. Most Union citizens are not familiar witheven the basic logic of the political processes, nor are those processes clearlyassociated with the persons who are correspondingly responsible. In liberaldemocratic polities, citizens identification processes are greatly facilitatedwhen the political decision-making processes are understood and whereresponsibility for results is personalized. In this respect, the focus on heads of government and the shift away from the traditional parliamentarian model, asseen in most EU member states, are particularly significant.69

The convention, according to the preface, believes that the draft CTsimplif[ies] the decision-making processes and make[s] the functioning of the European institutions more transparent and comprehensible. This may be

the case with respect to the expansion of the co-decision procedure and theslightly simpler mode of weighting votes in the Council (art. I-24, para. 1 CT);nevertheless, a multiplicity of complex procedures persists, as evidenced bypart III of the CT. Much of what initially seems to be simplification fortransparencys sake (for example, the provisions on legal instruments in


67 Seethe Document on European identity, supranote 2.68 Cf.GNTERFRANKENBERG, DIEVERFASSUNG DERREPUBLIK[THECONSTITUTION OF THEREPUBLIC],especially32ff., 133ff., 213ff. (Suhrkamp 1997); Gnter Frankenberg,Tocquevilles Frage. Zur Rolle der Verfassung im Proze der Integration[De Tocquevilles Question: The role of the Constitution in the inte-gration process], in Schuppert & Bumke,supra note *, at 31, 44ff. Also impressive in this line of thought is SIEDENTOP, supranote *, at 25ff.69 Klaus von Beyme,Die Entstehung des Ministerprsidentenamtes in den parlamentarischen SystemenEuropas[The emergence of the office of prime minister in European parliamentary systems], 10 PVS249ff. (1969); KLAUS VONBEYME, DIE PARLAMENTARISCHENREGIERUNGSSYSTEME INEUROPA [EUROPEANPARLIAMENTARYSYSTEMS OFGOVERNMENT] 589ff. (Piper 1970); ARMIN VONBOGDANDY, GUBERNATIVERECHTSETZUNG[GOVERNMENTALLAW MAKING] 129f. (2000).


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The text of itself has only limited potential for forging identity. A legallybinding document is but a first step on the long and winding road from apolitical design for collective identity to a socially embedded institution thatactually fosters such identity. A further step would be the stable grounding of the constitutional treaty in public discourse across the political community.This could be achieved on a ceremonial level through presentation of theEuropean constitution as a symbol of European unity; political rhetoric mighthave this strategy in mind. The citizenry, however, reacts skeptically to politi-cal rhetoric, at least to that of the established political parties. A truly effectivegrounding, then, may depend primarily on the efficacy of the constitution as aparamount normative point of reference in political and social debates.

Whether this will be achieved is an open question. The preambular princi-ples, after all, cannot easily be operationalized in legal controversies. Thesuccess of Germanys Basic Law in this respect rests, to a great extent, on twophenomena: first, the political practice of conducting important disputes asdebates over constitutionality and, second, the development of the Germanlegal order since 1950 that has placed the constitution at its very center.74Whether the Union will develop similarly is debatable, especially sincethe development of Germanys legal order has been a response largely to theNational Socialist dictatorship.

It is also by no means certain that Europes constitutional treaty would cred-ibly establish a paramount normativity, which is indispensable to a credible entryin our dictionary of European identity.75 Making the European Council the high-est institution will hardly benefit an awareness of paramount normativity: likethe German monarchs of the nineteenth century, the Council is largely beyondEuropean legal and political checks and, consequently, could operate withoutsanctionable obligation to constitutional law.76 Perhaps even more important,though, is the handling of the Maastricht-deficit criterion of 3 percent for

national budgets. If, as foreseen in article III-76, paragraph 2, this criterionbecomes formalized in constitutional law,77 and if this dutywhich is invested


74 EBERHARDSCHMIDT-AMANN, DAS ALLGEMEINEVERWALTUNGSRECHT ALSORDNUNGSIDEE[THE GENERALADMINISTRATIVELAW ASREGULATION] 39ff., 56ff. (Springer 1998); R. Wahl,Der Vorrang der Verfassung[Constitutional primacy], in VERFASSUNGSRECHT, EUROPISIERUNG, INTERNATIONALISIERUNG[CONSTITUTIONALLAW, EUROPEANIZATION, INTERNATIONALIZATION], at 121ff. (R. Wahl ed., 2003). On theinfluence of the basic rights on all areas of the legal order,seeHorst Dreier,Vorb. art. 1, Nr. 15, 18,57, in 1 HORSTDREIER, GG (1996).75

MARCELONEVES, 2 SYMBOLISCHEKONSTITUTIONALISIERUNG[SYMBOLICCONSTITUTIONALIZATION], 79ff.,104 (Duncker & Humblot 1998).76 MICHAELSTOLLEIS, GESCHICHTE DES FFENTLICHENRECHTS INDEUTSCHLAND[HISTORY OFGERMANPUBLICLAW], 102ff. (Beck 1999);see alsoHEINRICHALBETZACHARI, 1 DEUTSCHESSTAATS- UNDBUNDESRECHT[GERMANSTATE ANDFEDERALLAW] 75f., 290 (1853). But cf.the promising development discussedsupranote *.77 Comparethe stability criteria, presently grounded in primary law in art. 104 EC in connectionwith Protocol 20 to the EC Treaty on the excessive deficit procedure. Detailed rules and definitions


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with great symbolic significanceis breached with impunity, then it maybecome impossible to portray the constitutional treaty as a source of paramountnormativity.78 Moreover, such a constitutional breach could undermine thestrict understanding of constitutional law in member states, which is itself among the most important achievements of the second half of the twentiethcentury.79

4. A focus on rational self-interest as an alternativeto identity

Confronted with so many questions and so much doubt, it would seem desirable,

in both constitutional theory and constitutional politics, to orient the Europeanproject not toward collective identity, but toward theless demanding, at firstglancelong-term self-interest of citizens. Thus, one would follow more of a lib-eral, contract-oriented model of European constitutional law.80 This would shiftthe focus, first, to the actions and achievements of the Union. In article I-3shodgepodge of objectives, the constitutional treaty imposes only one substantialobligation: in article I-3, paragraph 2, the Union shall offer an area of freedom,security, and justice as well as a single market. Elsewhere it merely promotes,works, combats, and respects. Because it is the only domain in which theUnion is sufficiently likely to succeed, this obligation should be displayed to citi-zens as the Unions central element. Second, such an orientation would shift theconstitutional focus toward the European decision-making processes, with theprecise focus on whether these processes adequately serve the long-term inter-ests and expectations of the Unions citizens. Therein lies the key to the Unionsfuture.

A. von Bogdandy 315

for the application of this protocol were laid down in Regulation (EC) 3605/93 of the Council of 22 November 1993 (1993 O.J. (L) 7). On the binding Stability Pact,see European CouncilResolution on the Stability and Growth Pact of Amsterdam of 17 June 1997 (1997 O.J. (C 236) 3).78 The most important judgment in this regard is C-27/04, Commission v. Council, handed down

13 July 2004, on excessive government deficits.79 See EDUARDOGARCA DEENTERRA, LA CONSTITUCIN COMO NORMA Y ELTRIBUNAL CONSTITUCIONAL[NORMATIVECONSTITUTIONS AND THECONSTITUTIONALCOURT] (Civitas 1981).80 This, according to a Kantian dictum, stating that even devils could found a state, if they havereason. SeeIMMANUELKANT, PERPETUALPEACE(1795); see alsoIMMANUELKANT, Die Religion innerhalbder Grenzen der blossen Vernunft[Religion in the confines of reason], 7 WERKE IN ZEHNBNDEN751ff.,753 (Weischedel Edition 1968); on Kants continued relevance,seePeter Niesen,Volk-von-Teufeln-Republikanismus, in FS HABERMAS568 (2001).

3icon bogdandy eu const eu identity (1)

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