In the world today, the question is not whether the European Union should exercise more authority, but whether it can afford not to. Competition with China, uncertainty about American relations and stability, Russia’s invasion of Ukraine stand out as stark examples of a need for a stronger, cohesive EU. Given the situation it finds itself, much debate to-date has been on how Europe can build stronger institutions. I feel this is perhaps the wrong question to continue to begin with. Instead, history and experience suggest a more fundamental question that we should be asking is: “How are stronger political unions made legitimate?”
To this key question, the historical development of the United States offers an instructive illustration, though not as an example for replication of an American federalism as is regularly debated; among others, by: Ernest Young (2002), W. Gary Vause (1995), Tanja Börzel & Madeleine O. Hosli (2003), Robert Schütze (2009), R. Daniel Keleman (2003), Kalypso Nicolaidis and Robert Howse (2002), and Segio Fabbrini (2005). Rather, the history of federal union in the United States is instructive because America’s constitutional breakthrough was less about institutional design than constitutional authority. When we look at the fledgling country established under the Articles of Confederation (AoC) (1776/1777), the noticeable fact was the deliberate preservation of the sovereignty of individual states. The result of which was a nearly non-existent central government. The AoC established a single chamber legislature as the form of central government, which had no real power; it could not raise revenue, regulate commerce, or respond effectively and collectively to national crises. Shays’s Rebellion (1786-1787)* demonstrated this and served as a reinforcing wake-up call to many of the American founders that what was needed was a revision of the AoC that would strengthen the powers of the central government.
From this instance and a number of previous instances of individual states’ international commerce agreements was that institutional reform alone could not solve the deeper problem (of individual sovereignty); that what was needed was a more powerful central government, but underlying it, there was need for a compelling justification of it. This led to a calling for a Constitutional Convention and the drafting of the Constitution in Philadelphia in 1787 which answered the challenge by relocating the source of political authority from sovereign states into a central agreement. The Constitution claimed legitimacy directly from the people. In its opening words – “We the People”, it announced not simply a new government but a new constitutional principle, ultimate authority derived from citizens rather than from the governments of individual states. With the Constitution, state sovereignty was not erased, nor did it instantly create a unified American nation, but it did offer opportunity for discussion about the issue of state and central – federal authority. Ratification was needed from nine of the thirteen states, and fierce debates over central authority would continue for decades, if not into our contemporary time. Ratification in states was sought through popularly elected conventions rather than state legislatures. This created a fundamental change for America, whereby the constitutional claim on which the Union rested existed because the people had authorized it.
This distinction proved consequential. The world over, governments have negotiated treaties and can revise them; however, constitutions have claimed a different kind of authority because they are understood to be the expression of a political community’s will. The legitimacy of constitutions rests not simply on what powers they create, but on recognition of who has created them: where does legitimacy lay for the constitution? It is also this distinction that helps explain why the phrase and idea behind “We the People” becomes more powerful over time. While at the time of its writing in 1787, it excluded many “people” from meaningful participation (e.g., women, indigenous nations, enslaved people), its central claim that power flowed from the people, will provide later generations with the ability to use the language within the constitution to challenge those exclusions. What this signifies is that the act of popular authorization did not emerge fully formed within the American nation, it instead reflects an emerging political community and helped to deepen this as well.
It is this reciprocal relationship that seems to be often missing from comparisons with Europe. Over the past seven decades, the European Union has followed a different constitutional path, where powers have been accumulated. It now legislates across large areas of economic and social life, governs a common currency and exterior border policy, assuming greater responsibility for a widening range of policies. Each ‘crisis’ it has faced has expanded or redefined what the Union does. And yet, the ‘constitutional’ basis has remained consistent. European integration has advanced primarily through treaties that have been negotiated and ratified by member states. European citizens elect members to the European Parliament, but the Union itself still derives its constitutional authority principally through agreements among governments rather than directly through citizen participation. Perhaps this fact mattered less when the Union functioned primarily as a common market, but the democratic deficit becomes harder to ignore as the EU has expanded its powers in areas that have been traditionally associated with the idea of the state. This is why Europe’s constitutional challenge is no longer simply one of institutional design or redesign, but one of legitimacy.
I do not suggest here that Europe requires a copy of the US Constitution, a European federation, or even a single European identity. However, I suggest, based on the American example, something more fundamental is needed, that of a durable constitutional authority becomes easier to sustain when citizens understand themselves not merely as subjects of institutions but as their constitutional authors. Europe may yet develop the sense of a shared constitutional authorship whereby a political community emerges through common institutions, shared experiences, and collective challenges. While contemporary global challenges may strengthen a European political consciousness; this is not a substitute for constituent legitimacy itself.
For decades, the debate across the EU has been about the transfer of competences and powers from national capitals to Brussels. That framing misses the central issue. The next phase of European integration is unlikely to be defined by how much authority the Union exercises as it is by whether Europeans come to regard that authority as coming from themselves. This highlights that the next challenge for the EU is not about federalism but about constituent legitimacy – true constituent legitimacy that is not currently delivered even through a European Parliament.
As the European Union continues to acquire powers that increasingly resemble those of a state, it will need to confront the question that every durable political union (including the US throughout its history has), can a political entity continue to accumulate authority without an equivalent act of popular constitutional authority? That is Europe’s unresolved “We the People” question. To have its moment, it requires the Union to reconsider its democratic legitimacy beyond institutional engineering.
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* Shays’s Rebellion (1786-1787) was a rebellion by farmers in Massachusetts to the economic depression in the state that had many of them facing foreclosures on their farms and homes, without the expected economic relief in such instances that had been in practice since colonial times. The resulting revolt was eventually put down; however, it was a turning point among a series of incidents that had been occurring within and between states around economics and commerce since the founding of the new nation in 1776.
