Postnational constitutionalism in the European Union

The article re-examines the heritage of EU constitutionalism, working from the classic notion of the 'constitutionalization of the treaties' towards a contemporary notion of postnational constitutionalism in the emerging EU polity in which the role of law is problematized. It develops a process-based and non-teleological conception of EU constitutionalism, drawing on the work of Tully and Bańkowski/Christodoulidis. In the article, constitutionalism is deployed as a discursive and dialogic notion, involving the process of accommodating diverse interests within society. The EU itself is understood as contested and contestable in terms of its evolution, and it is suggested that the open-textured concept of postnationalism can usefully capture some of its sui generis elements. Postnational constitutionalism implies, in the EU context, more than designing a good EU constitution, but rather a reconceptualization of the key principles and processes on which constitutionalism must reside.