Professional Documents
Culture Documents
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193
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Dieter Grimm*
Dieter Grimm, Welche Elite fr welche Gesellschaft? [Which elite for which society?], in
BRGERGESELLSCHAFT. WAS HLT UNSERE GESELLSCHAFT ZUSAMMEN? [CIVIL SOCIETY. WHAT HOLDS OUR SOCIETY
TOGETHER?] 81 (Eduard J. M. Kroker & Bruno Deschamps eds., Societts-Verlag 2002).
ICON, Volume 3, Numbers 2 & 3: Special Issue May, 2005, pp. 193208
doi:10.1093/icon/moi014
Oxford University Press and New York University School of Law 2005. All rights reserved. For permissions
please email journals.permissions@oupjournals.org
194
Keynote essay
HANS VORLNDER, KONSENS UND VERFASSUNG [CONSENSUS AND CONSTITUTION] (Duncker & Humblot
1981); see also INTEGRATION DURCH VERFASSUNG [INTEGRATION BY CONSTITUTION] (Hans Vorlnder ed.,
Westdeutscher 2002); but see Ulrich Haltern, Integration als Mythos [The myth of integration],
45 JAHRBUCH DES FFENTLICHEN RECHTS NF 31 (1997).
D. Grimm
195
document in which society finds its basic convictions and aspirations expressed.
This aspect of a constitution can be termed its integrative function.
Yet, the normative and the integrative functions are fulfilled on different
levels. The processes of constituting, legitimizing, and regulating public
authority take place on a juridical level. The constitutive function is fulfilled by
the very existence of the constitution. It is what it exists for: creating and regulating public authority that did not previously exist or did not exist in the
same form. The same is true of its legitimizing function, as the constitution
defines who is entitled to wield political power. The constitutions function as a
standard of behavior and judgment is no different. The constitution sets out
this standard, conferring upon it a legal validity that is independent of
whether or not the standard is actually followed. Individual violations of a law
do not invalidate the constitution. Its effect consists in allowing people to determine what behavior is lawful or unlawful and in attaching legal consequences
to these qualifications.
The question is now whether the integrative function of a constitution is of
the same nature as the normative. Is this function an inevitable product of a
constitutions very existence? Skepticism appears justified. A recently
published book entitled Was hlt die Gesellschaft zusammen? (What Holds
Society Together?) does not even mention the constitution as an integrative
factor.5 Indeed, history offers many examples of constitutions that have failed
to contribute to social integration. A prime example is the Weimar constitution, which not only failed to integrate but actually drove Germans apart
during the transformations following World War I. On the other hand,
one cannot deny the considerable integrative power of many constitutions.
The best example of this is the United States Constitution, which is seen by
many as the veritable embodiment of the national myth.6
While constitutionsprovided they are intended to operate as legally binding
textsautomatically produce normative effects, their integrative influence is a
different matter. Taken together, the examples of Weimar and the U.S. show that
this influence can, but need not, exist. The reason is that the process of social integration does not unfold on a normative level. Integration takes place in the real
world. It is a social process that can be promoted by the constitution but is not
controlled by it. This limitation is generally characteristic of legal norms. Laws
can influence, but never determine, such processes. This is true even if, in the
WAS HLT DIE GESELLSCHAFT ZUSAMMEN? [WHAT HOLDS SOCIETY TOGETHER?] (Wilhelm Heitmeyer ed.,
Surhkamp 1997); see also WAS TREIBT DIE GESELLSCHAFT AUSEINANDER? [WHAT DRIVES SOCIETY APART?]
(Wilhelm Heitmeyer ed., Suhrkamp 1997).
6
William Y. Elliott, The Constitution as the American Social Myth, in THE CONSTITUTION RECONSIDERED
209 (Conyers Read ed., Harper & Row 1968); HANS KOHN, AMERICAN NATIONALISM: AN INTERPRETIVE
ESSAY 8 (Macmillan 1957); SAMUEL P. HUNTINGTON, AMERICAN POLITICS: THE PROMISE OF DISHARMONY 30
(Belknap 1981); Frank J. Schechter, The Early History of the Tradition of the Constitution, 9 AM. POL.
SCI. REV. 707, 713 (1915).
196
Keynote essay
D. Grimm
197
EUROBAROMETER Nr. 25ff. (Europische Kommission ed., 1993); CHRISTINE LANDFRIED, DAS POLITISCHE
EUROPA [POLITICAL EUROPE] 108 (Nomos 2002).
8
Jrgen Habermas, Die aktuellen und die langfristigen Herausforderungen der EU [The current
and long-term challenges of the EU] (2004) (unpublished manuscript, on file with author).
198
Keynote essay
Ulrich Haltern, Europische Identitt [European Identity], in EUROPISCHE IDENTITT: PARADIGMEN UND
METHODENFRAGEN [EUROPEAN IDENTITY: PARADIGMS AND METHODOLOGIES] 57 (Ralf Elm ed., Nomos
2002); Ulrich Haltern, Pathos and Patina: The Failure and Promise of Constitutionalism in the
European Imagination, 9 EUR. L.J. 14, 30 (2003); Armin von Bogdandy, Europische Verfassung und
europische Identitt [European Constitution and European Identity], in LEUROPE EN VOIE DE CONSTITUTION
[EUROPE ON THE WAY TOWARD A CONSTITUTION] 657 (Olivier Beaud et al. eds., Bruylant 2004).
10
European Commission, The Future European Constitution, FLASH EUROBAROMETER No. 159
(Feb. 2004), at 21; Olivier Beaud & Sylvie Strudel, Dmocratie, Fdralism et Constitution
[Democracy, Federalism and Constitution], in LEUROPE EN VOIE DE CONSTITUTION, supra note 9, at 12.
11
INTEGRATION DURCH VERFASSUNG, supra note 4; Haltern, supra note 4; Gebhardt & Schmalz-Bruns,
supra note 1; VERFASSUNG UND POLITISCHE KULTUR [CONSTITUTION AND POLITICAL CULTURE] (Jrgen Gebhardt
ed., Nomos 1999); Jrgen Gebhardt, Verfassung und Symbolizitt [Constitution and Symbolism], in
INSTITUTIONALITT UND SYMBOLISIERUNG [INSTITUTIONALISM AND SYMBOLIZATION] 585 (Gert Melville ed.,
Bhlau 2001); GARY S. SCHAAL, INTEGRATION DURCH VERFASSUNG UND VERFASSUNGSRECHTSPRECHUNG?
[INTEGRATION BY CONSTITUTION AND CONSTITUTIONAL ADJUDICATION] (Duncker & Humblot 2000); ANDR
BRODOCZ, DIE SYMBOLISCHE DIMENSION DER VERFASSUNG [THE SYMBOLIC DIMENSION OF CONSTITUTIONS]
(Westdeutscher 2003); GNTER FRANKENBERG, AUTORITT UND INTEGRATION. ZUR GRAMMATIK VON RECHT
UND VERFASSUNG [AUTHORITY AND INTEGRATION. THE GRAMMAR OF LAW AND CONSTITUTION] (Suhrkamp
2003); Gnter Frankenberg, Tocquevilles Frage. Zur Rolle der Verfassung im Prozess der Integration
[De Tocquevilles Question: The role of constitution during the process of integration], in
BUNDESVERFASSUNGSGERICHT UND GESELLSCHAFTLICHER GRUNDKONSENS [THE FEDERAL CONSTITUTIONAL COURT
AND FUNDAMENTAL SOCIAL CONSENSUS] 31 (Gunnar Folke Schuppert & Christian Bumke eds., Nomos
2000); CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY (Michel Rosenfeld ed., Duke Univ.
Press 1994); for an early contribution see RUDOLF SMEND, VERFASSUNG UND VERFASSUNGRECHT
[CONSTITUTION AND CONSTITUTIONAL LAW] (Duncker & Humblot 1928).
D. Grimm
199
Hans Vorlnder, Integration durch Verfassung?, in INTEGRATION DURCH VERFASSUNG, supra note 4, at 9.
13
Constitutions of this type are frequently called symbolic constitutions. Symbolic constitution in
this sense, however, should not be confused with the symbolic effects of normative constitutions. See MARCELO NEVES, SYMBOLISCHE KONSTITUTIONALISIERUNG [SYMBOLIC CONSTITUTIONALIZATION]
(Duncker & Humblot 1998); MARCELO NEVES, VERFASSUNG UND POSITIVITT DES RECHTS IN DER PERIPHEREN
MODERNE [CONSTITUTION AND THE MODERN TREND OF LEGAL POSITIVISM] (Duncker & Humblot 1982);
BRUN-OTTO BRYDE, VERFASSUNGSENTWICKLUNG [CONSTITUTIONAL DEVELOPMENT] 27 (Nomos 1982).
14
200
Keynote essay
protects the system and gives it a binding character. This was the fate of the
Weimar constitution.15
As a rule, the perception of a system as good presupposes a high degree of
inclusivity. As more people in a society identify with their constitution, its power
to create social integration will grow. Open wording in a constitution fosters
this process. It helps to prevent competing ideas about the meaning of the text
from undermining the citizenrys identification with it. Thus, it may be correct
to say that a constitutions symbolic power increases with its interpretative
ambiguity, although its legally determinative power decreases to the
same degree.16 Of course, this can only refer to slight shifts in the balance. On
the one hand, there is no such thing as a legal norm that does not need to be, or
cannot be, interpreted. On the other hand, when applied to concrete cases, all
legal norms must be given an unambiguous reading relevant to each case.
The question of application is again relevant to social integration. If a constitution fails to exert authority in the real world of politics, not even a concept
of order perceived as good will be able to confer identity-building power
upon it. This is why constitutions that are linked to an authoritative instance
such as a constitutional court (or a general court with the power of judicial
review) for the enforcement of constitutional provisions have a greater chance
of promoting integration than those that leave compliance up to government.17
Even so, it would be rash to assume that constitutional courts can fill the gap
when the constitution lacks sufficient symbolic force and does not offer society
a sufficiently attractive focus with which to identify.
In order for integration by constitution to occur, our accumulated knowledge suggests that the circumstances under which a society is founded play
a crucial role. Bruce Ackerman, in particular, has emphasized the significance of the constitutional moment for a constitutions integrative and
identity-building force.18 He uses this term to refer to those rare moments that
stand out from the usual course of politics, moments in which the desire to
15
16
BRODOCZ, supra note 11; Andr Brodocz, Chancen konstitutioneller Identittsstiftung. Zur symbolischen Integration durch eine deutungsoffene Verfassung [Chances of constitutional identity formation.
The symbolic integration by an open constitution], in INTEGRATION DURCH VERFASSUNG, supra note 4, at 101.
17
Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L REV. 775 (1997); Constitutional
Politics/Constitutional Law, 99 YALE L.J. 453 (1989); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS
(Harvard Univ. Press 1991); BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (Harvard Univ.
Press 1998); see also the papers presented at the symposium Moments of Change, 108 YALE L.J.
19172349 (1999).
D. Grimm
201
revise the principles of social order or the conditions of rule triumphs and is
anchored in constitutional law. In fact, the great majority of both historical
and currently existing constitutions have been drafted for the establishment or
refounding of polities. Historical ruptures within societies frequently play a
critical role here. Such events primarily take the form of triumphant revolutions toppling despised foreign rulers or oppressive regimes or, on occasion, a
countrys resurgence following a catastrophic collapse, as well.19
However, a constitutional moment must not be understood as the conditio
sine qua non for successful, integrative constitutions. There are constitutions
with great integrative power that have not emerged during such moments.
One example is the new Swiss Constitution (billed as an update of the old).
Conversely, we know of constitutions that have emerged in a constitutional
moment but did not gain any integrative capacity. The numerous French
constitutions are vivid examples. A constitutional moment creates favorable
conditions for effective, integrative constitutions in cases where a society continues to recognize itself in a historical moment, and thus the emergent
constitution creates a link between past and present.
The United States exemplifies the triumphalist model of the constitutional
moment. The history of the United States began with a successful revolution
against its mother country and culminated in the foundation of an independent state. These acts found expression in two founding documentsthe
Declaration of Independence (1776) and the U.S. Constitution (1787). Both
are important to the collective memory of the U.S. and symbolize the origins
and development of that countrys polity. While the Declaration of
Independence stands for the casting off of foreign domination, the founding of
a new politybased on self-government, liberty, and the rule of lawfinds
expression in the Constitution. The day on which the Declaration of
Independence was adopted has become a national holiday, devoted to the
annual commemoration of the founding of the nation. Integration, however,
is primarily achieved through the Constitution. There is no other polity in
which the constitution plays such an important role in social integration as
the United States.20
This has something to do with the difference between structure and event.
The adoption of the Declaration of Independence is an event that people can
commemorate on national holidays, just as the storming of the Bastille
19
Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L. REV. 775 (1997); Louis Henkin,
Revolutions and Constitutions, 49 LA. L. REV. 1023 (1989); ULRICH K. PREU, REVOLUTION, FORTSCHRITT
UND VERFASSUNG [REVOLUTION, PROGRESS AND CONSTITUTION] (Wagenbach 1990); DIETER GRIMM, DIE
ZUKUNFT DER VERFASSUNG [THE FUTURE OF CONSTITUTIONALISM] 31 (3d. ed., Suhrkamp 2002).
20
MICHAEL KAMMEN, A MACHINE THAT WOULD GO OF ITSELF (Knopf 1987); Jrgen Heideking, Der
symbolische Stellenwert der Verfassung in der politischen Tradition der USA [The symbolic value of the
constitution in the political tradition of the U.S.A.], in VORLNDER, INTEGRATION DURCH VERFASSUNG,
supra note 4, at 123.
202
Keynote essay
provides a focal point for commemorating the French Revolution. But the
Declaration of Independence and, therefore, the American Revolution were
legitimized by values which would subsequently form the basic principles of
a new order expressed in the Constitution. Only through the Constitution as a
normative text did the new order assume permanence and acquire a legally
valid form. The Constitution remains valid, with relatively few changes, even
today. It blends with the founding myth of the U.S. and keeps the myth alive in
peoples minds. The Constitution embodies convictions that unite all
Americans independently of their origins and traditions. This unity is fostered
by the pithiness and openness with which the Constitution was formulated.
With the exception of the period of bloody civil war between the northern
and the southern states, Americans have always revered and celebrated their
Constitution in metaphors and rituals borrowed from religion. There are two
factors that have been largely responsible for this reverence. First, the United
States, as a land of immigrants, could not offer the same potential for identification as full-fledged nation-statesprior to the adoption of the Constitution
no nation existed. Furthermore, for anyone emigrating to the new country,
emigration meant breaking with their own tradition. The new tradition began
with the Constitution, which distinctly stands for people coexisting in freedom
with respect for one anothers differences. Second, Americas constitutional
jurisdiction ensured from the very start that people would always recognize the
importance, as well as the social and political relevance, of the Constitution.
The Federal Republic of Germany may serve as an illustration of the catastrophe model, since its Constitution was the product not of a successful
revolution but of a profound defeat. Germany had lost much of its territory
and what remained was divided into two states hostile to each other. The country
was burdened with guilt about its National Socialist past. Consequently, in
postwar Germanyas in the U.S. (albeit for different reasons)traditional
identification factors did not exist. Because it was divided, the nation was out
of the question. Its history was off limits, as it was closely associated with the
Holocaust. Finally, culture could not enter the equation, because it was needed
as a unifying bond for the divided nation. Where other nation-states found a
sound basis for integration and identity, postwar Germany faced a vacuum.
At the same time, a long phase of undisturbed economic growth turned the
Federal Republic into a prospering economic power and stable democracy. Its
success was increasingly attributed to the Basic Law. In contrast with Weimar,
whose constitution was held responsible for the collapse of the first republic,
the Basic Law was identified with the rise of the Federal Republic of Germany.
Adopted in reaction to National Socialism, the Basic Law symbolized not only
Germanys return to the fold of civilized nations but also a superior alternative
to communism. In Germany, as in the U.S., the introduction of a constitutional
court meant that Germans were able, for the first time in their constitutional
history, to perceive the Constitution as a relevant document that gave each
individual the means to defend his fundamental rights against the state. This,
D. Grimm
203
in turn, reinforced the legal efficacy of the constitution without which the
symbolic effect is unlikely to emerge.21
The Basic Law was thus able to fill the vacuum of identification factors. Its
popular esteem grew from decade to decade, as the dedications expressed at
the various jubilees testify. From the 1970s on, it even became a model for
many states that had liberated themselves from dictatorships of every ilk.
These states saw the German constitution as a guarantee of economic prosperity and political stability and borrowed from it when they drafted their own
constitutions. Nothing describes the German situation more aptly than the
expression (which has no parallel in any other country) constitutional patriotism, a phrase with which people on both the left and the right could identify.22 Thus, constitutional patriotism became an expression of the fact that, in
a society deprived of its other bases for national identification, the constitution
was the document that represented the achievements and cherished values of
the West German society.
The strength of this patriotism is in no way altered by the fact that in
Germanyas in the U.S.the meaning of certain constitutional norms and
the demands these norms place on government in specific situations were
frequently the subject of heated debate and the source of profound conflicts.
Unlike discord in the Weimar Republic, conflicts in the Federal Republic did not
revolve around the Constitution as such, but around different interpretations
of a constitution that was fundamentally accepted. For when people argue
over the correct meaning of a constitution and refer back to it in political and
social conflicts, they are basically affirming the constitution through these
very conflicts. When such conflicts arise, the constitutional court, operating at
a distance from politics, has the opportunity both to assert the constitutions
authority over the political branches of government and to anchor it
more firmly in the minds of the population. Even though disputes over the
interpretation of the constitution sometimes divide society, they do not generally
affect the constitution as such.
21
Dieter Grimm, Das Grundgesetz nach 50 Jahren [The Basic Law after fifty years], in BEWHRUNG UND
HERAUSFORDERUNG. DIE VERFASSUNG VOR DER ZUKUNFT. DOKUMENTATION ZUM VERFASSUNGSKONGRESS 50
JAHRE GRUNDGESETZ50 JAHRE BUNDESREPUBLIK DEUTSCHLAND 39 (Otto Depenheuer & Heinrich
Oberreuter eds., Leske Budrich 1999); Dieter Grimm, Verfassungspatriotismus nach der
Wiedervereinigung [Constitutional patriotism after reunification], in DIE VERFASSUNG UND DIE POLITIK
[CONSTITUTION AND POLICY] 107 (Dieter Grimm ed., Beck 2001).
22
The original texts are Dolf Sternberger, Verfassungspatriotismus [Constitutional patriotism],
FRANKFURTER ALLGEMEINE ZEITUNG, May 23, 1979, at 1; JRGEN HABERMAS, EINE ART
SCHADENSABWICKLUNG [A WAY OF DIMINISHING THE DAMAGE], (Suhrkamp 1987); see also Josef Isensee,
Die Verfassung als Vaterland [The constitution as Fatherland], in WIRKLICHKEIT ALS TABU [REALITY
AS TABOO] 11 (Armin Mohler ed., R. Oldenbourg Verlag 1986); Jrgen Gebhardt,
Verfassungspatriotismus als Identittskonzept der Nation [Constitutional patriotism as a national identity
formation], in VERFASSUNG UND POLITISCHE KULTUR, supra note 11, at 15.
204
Keynote essay
23
Armin von Bogdandy, Europische Verfassung und europische Identitt [The European constitution
and European identity], JURISTENZEITUNG 2004, at 53; Haltern, Pathos and Patina, supra note 9;
Haltern, Europische Identitt, supra note 9.
D. Grimm
205
Thus created, both constitutions have become symbols of the polities foundations and lasting successes.
In contrast, the document drawn up by the convention in 2003 is not a
striking symbol of the historical realization of European unity. We are neither
witnessing the foundation of the European project nor a new beginning after
a radical historical break. On the contrary, European integration is a process of
gradual expansion and consolidation. The stages of this process are marked by
the accession of new member states and amendments to the relevant treaties.
None of these stages displayed the typical features of a constitutional moment.
To be sure, the Maastricht treaty of 1992 did stand out among the various
stages of European unification inasmuch as it made the public aware, for the
first time, of the degree of community already attained. Until then, integration
had escaped public notice and was basically achieved by administrative and
judicial paths. However, growing public interest did not give the EU greater
legitimacy but only made its weak support visible. Since Maastricht, the number of EU citizens who see the Union as a good thing has been declining.24
It is important to remember, however, that the process of establishing a constitution has been in conjunction with the expansion of the European Union
to include ten new members, most of whom, until 1989, had very different
social orders from their western counterparts. Yet, the European Union had
accepted new member states in the past without people ever viewing the
process as a constitutional moment. The expansion of 2004 is not regarded as
a triumph of the European cause, as it might have been in 1989a year that
would have undoubtedly supplied the preconditions for a constitutional
moment and for elevating the constitution to symbolic status. In view of the
weak economies and unstable democracies in many of the new member states,
the older members tend to view current developments with concern.
Additionally, people in the new member states evidently do not feel that they
are witnessing a memorable moment, as indicated by the level of participation
in the European elections soon after these new countries had acceded to the
European Union. It is too early to say whether this will change in the future.
Certainly, the process of European integration has achieved something
which, considering Europes painful history, should not be underestimated.
One can be almost certain that, owing to their high degree of integration, it is
very unlikely the EU member states will ever wage war on one another again.
Yet, almost sixty years after the end of World War II, and nearly fifty years after
the founding of the European Communities, this achievement is now taken
for granted to such a degree that few are likely to attribute it to a European
constitution that only came into being in 2004. Even though the expression
constitutional moment should not be taken literally, and even though a good
ten years passed between the Declaration of Independence and the adoption of
24
206
Keynote essay
Neil Walker, After the Constitutional Moment, in A CONSTITUTION FOR THE EUROPEAN UNION: FIRST
COMMENTS ON THE 2003-DRAFT OF THE EUROPEAN CONVENTION 23 (Ingolf Pernice & Miguel Poiares
Maduro eds., Nomos 2003); Ingolf Pernice, The Draft Constitution of the European Union. A
Constitutional Treaty at a Constitutional Moment?, id. at 13; von Bogdandy, supra note 23.
D. Grimm
207
After all, they do not mark the end of a period of oppression and despotism in a
Europe deprived of basic rights. Despite the absence of a written charter of
fundamental rights, the European Union has long enjoyed the protection of
fundamental rights through the European Court of Justice, based on the
European Convention of Human Rights and the member states catalogues of
fundamental rights. Moreover, the Charter of Fundamental Rights offers citizens of the EU a third catalogue of human rights (in addition to the national one
and the European convention adopted by the Council of Europe) to protect
them from public authority. This is likewise true for the citizens of the new
member countries. In federalist states, such as the Federal Republic of Germany,
the Charter actually constitutes a fourth catalogue that citizens can invoke.
Ultimately, the new document raises the question of whether it really
deserves to be called a constitution.26 According to the standard set by the
American and French revolutions, as the origins of modern constitutionalism, it
is in the constitution that a society determines the form and content of its political unity. In so doing, society exercises its right to self-determination
vis--vis the ruling order, thereby demonstrating that it is sovereign and the sole
source of public authority. It is for this very reason that constitutions are normally adopted by the people, or at least attributed to them as the origin of all
public authority, while state organs derive their existence and powers from the
people and exercise them in the citizens name. The basic legal order of
the European Union, by contrast, has neither originated in a decision made by its
citizens, nor is it attributed to them. It is a matter for the member states to
contractually agree upon a basic legal order, which is then ratified by each member state. This is not an act of self-determination but of external determination.
The constitution of a political entity can, however, come about on the basis
of a treaty prepared by its founders. This is, indeed, the standard procedure
when several states combine to create a greater political whole. In this case, a
treaty is merely the mode of constitution making. The founding treaty is, at the
same time, the final international treaty providing the legal basis of the new
political entity. With the adoption of the treaty, its character as treaty is consummated. From then on, the new political entity disposes itself on this legal
basis, which thereby becomes its constitution, as is apparent in the provisions
relating to constitutional amendments. If the constitutional treaty is the last
treaty under international law and subsequent amendments are decided
upon by the entity so constituted, the basic legal order is a constitution. If the
member states still retain the power to make amendments by way of concluding
treaties on the basis of international law, the basic legal order remains a treaty
in nature and does not become a constitution.27
26
27
For examples from American constitutional tradition, see GORDON S. WOOD, THE CREATION OF THE
AMERICAN REPUBLIC (2nd ed., Univ. of North Carolina 1995).
208
Keynote essay
28
See, e.g., Ingolf Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European
Constitution-Making Revisited?, 36 COMMON MKT. L. REV. 703 (1999).