The Jean Monnet Program
Professor J.H.H. Weiler
European Union Jean Monnet Chair

in cooperation with the 

Woodrow Wilson School of Public and International Affairs at Princeton University
Provost Christopher L. Eisgruber 
Laurance S. Rockefeller Professor of Public Affairs

Altneuland: The EU Constitution in a Contextual Perspective 

Jean Monnet Working Paper 5/04

Neil Walker
Europe's Constitutional Momentum and the Search for Polity Legitimacy

Papers included in this collection should be cited according to the following format.  

Neil Walker, Europe’s Constitutional Momentum and the Search for Polity Legitimacy, in Weiler and Eisgruber, eds., Altneuland: The EU Constitution in a Contextual Perspective, Jean Monnet Working Paper 5/04, [http://www.jeanmonnetprogram.org/papers/04/040501-01.html]

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No part of this paper may be reproduced in any form
without permission of the author.

ISSN 1087-2221
© Neil Walker 2004
New York University School of Law and
Woodrow Wilson School of Public and International Affairs at Princeton University
Europe’s Constitutional Momentum and the Search for Polity Legitimacy*
Neil Walker

1. Introduction
To suggest that the European Union in 2004 possesses constitutional momentum may at first glance  not  be a particularly bold claim to make. Indeed, it might seem  self-evident that an entity going through a high-profile, self-styled constitutional phase or moment – in the busy sequence of events which has led from the Treaty of Nice to the Laeken Declaration to the (Constitutional) Convention on the Future of Europe to the Draft Constitutional Treaty, and, finally, following failure at Brussels in December 2003,  to the agreement of a text by the Intergovernmental  Council in June 2004 to be put to the Member States for ratification in accordance with their domestic constitutional requirements– is imbued with  constitutional momentum. 
But first impressions would be deceptive. There is indeed a thin and tautologous  truth implicit in the proposition that the EU has constitutional momentum, for the generation and sustenance of a  self-defined constitutional event  does  presuppose  some degree of short-term constitutional  impetus. But there is a harder and more important series of questions to ask about constitutional momentum,  which distinguish between the short-term, event-framed horizon and the  specific constitutional product associated with that horizon on the one hand, and a longer-term horizon and what might be termed  the general constitutional aspiration of polity legitimation on the other. On the short-term view of momentum,  we are only concerned with whether the constitutional conditions are sufficiently propitious to ensure the promulgation and ratification  of the constitutional document  – which  itself can by no means be taken for granted. Within this telescoped timeframe any analysis of the effect and impact of the constitution must perforce be  closely and modestly tied to basic legal output functions - to what can be delivered in terms of the text itself and what flows more or less automatically from that. It is only on a  longer term view, one that looks beyond the present constitutional phase and considers the prospect that, far from exhausting constitutional momentum, the present phase may act as a stimulant to a more sustained constitutional dynamic, that  we can be concerned as well with more  general social and political outcomes, primary amongst which is the generic outcome associated with  polity legitimation. By polity legitimation  is meant the very acceptance of the entity in question as a legitimate political community; that is to say, as an entity that both  possesses the authority to render matters that significantly affect the life-chances of members of the putative community in question subject to collective decision, and relatedly – since the authority of  legal and political power is inseparable from its social acceptance – that identifies  a community with sufficient “we feeling” - however modestly or ambitiously the threshold of sufficiency be set - to accept and render effective  collective decisions made on its behalf.
It is with the prospects for that longer term constitutional momentum or impetus in terms of the general constitutional function of polity legitimation  that I am here   concerned. The article has both  explanatory  and normative purposes, and, as we shall see, these purposes are closely linked. It is explanatory in outlook in seeking to investigate the question of ‘constitutional momentum’ more closely and to understand  why it may be difficult to conceive of the present phase as triggering a constitutional dynamic that will impact significantly on the question of polity legitimation.  It is normative in outlook in that in the course of arguing  that the window for viewing the EU as possessing such constitutional momentum remains open, even if that window is more narrow and more elusive than first impressions would suggest, it looks in more detail at what is at stake in the projection of EU constitutionalism in terms of its long-term effects on polity legitimacy and suggests that there is something of value in such a prospect, and, therefore, in its endorsement and encouragement. In concentrating on the holistic question of polity legitimacy and on the role of constitutionalism in contributing to this, the article does not seek to suggest that forms of legitimacy other than those which concentrate on the overall justification of the polity qua polity– such as the legitimacy of its general institutional regime or the performance legitimacy associated with the content of the actual polices pursued in accordance with institutional norms - are unimportant, or that the constitution’s contribution to these other forms of legitimacy is insignificant. Indeed, it is a central feature of the argument that these other forms of legitimacy are inseparable from polity legitimacy. However, it is precisely because of this inseparability – the fact that the dimension of polity legitimacy cannot be left out of any general assessment of legitimacy or treated as an expendable dimension thereof – that polity legitimacy merits sustained treatment in its own right. 
The explanatory  and normative dimensions to my argument possess a single root,  which we may begin to trace by exposing a paradox of constitutional praxis in the current politics of the European Union. Simply put, this paradox holds that the   reason why it is difficult to conceive of the present constitutional moment as having sustained momentum in addressing the secular process of polity legitimation (i.e. the explanatory question) is the very same reason why it may also be desirable to conceive of the constitutional moment in these terms (i.e. the normative question). That   common reason for  the  elusiveness and the desirability of  constitutionalism’s contribution to the general aspiration of   polity legitimation  in the EU   may be identified by  reference to a more basic paradox applicable to all processes of  constitution-making, or, indeed, of constitutionalization more generally – but one which has a particularly pressing significance in the context of the EU.  In the following three sections I will, first set out the general  terms of the paradox,  secondly, explain why it takes such an acute form in the context of the EU, and, thirdly, say something about how the paradox has in fact coloured the present debate around the draft Constitutional Treaty and in significant respects frustrated or impeded the prospect of addressing the secular problem of polity legitimacy through constitutional means. In the final sections I will sketch an argument to suggest why the present constitutional process and product may nevertheless provide the seeds and supply the momentum for a more constructive, and indeed constitutive, long-term engagement with the question of polity legitimation in the European Union 

2. Five Orders of Disagreement and the Paradox of the Constitutional Polity . 
We may set out the general terms of the paradox of the constitutional polity through a metaphor of spatial edifice, one which situates the task of constitutional framing of the  polity at the apex of a pyramid that embraces five levels of pluralism of perspectives and preferences, with of each of the lower orders   necessitating recourse to a higher order and deeper frame of debate that in turn embraces its own pluralism of perspectives. The first  order  of pluralism is concerned with these forms of difference and of potential contestation or conflict which rest on the basic diversity, first, of interests, secondly, of ideologies or values, and, thirdly, of social and political identities, which different individuals and groups embrace, and which, in descending order of amenability to negotiation and reconciliation, these individuals and groups necessarily bring with them into the political process. 
The second order of pluralism concerns the nature of the institutions of justice necessary and appropriate to address and decide upon the resolution of these first order differences - which institutions address the division and inter-relationship of decisional competences as between  different organs of government, as well as  whatever basic negative and positive rights the citizen can claim against these government organs and whatever basic duties he or she holds towards these government organs as  are deemed to be (whether presumptively or categorically) prior to and protected from the vicissitudes of political decision. Famously, Rawls  specified  “reasonable pluralism” over first-order preferences, together with moderate scarcity and limited altruism, as being the elementary “circumstances of justice,”  -  the basic framework of constraint and opportunity within which we seek this second order agreement, which agreement is often crystallised in the norms of a constitutional document or in other undocumented or differently documented provisions of what Kelsen and others term the “material constitution.”  However, as it seeks to provide just and effective ways of resolving first order differences, this second order institutional framework is itself never safe from controversy.  Whether or not it is in principle possible to develop a conception of self-standing just institutions unconnected to any first order comprehensive conception of the good or indeed any other first order conception of basic preferences – and many disagree with Rawls that this is even a theoretical possibility – certainly as a matter of  political practice we typically find a residue of  irreducible disagreement about what constitutes a just framework for dealing with first-order differences. 
This area of contestation, therefore, leads to a third level and order of debate. Waldron describes this third level as being framed by the elementary “circumstances of politics”, which he identifies  as the “existence of… disagreement [over the politics of justice] and the felt need [my emphasis] for a common decision notwithstanding the disagreement.”  Yet, this frame, too, in seeking to  rescue and give effect to  a generic sense of politics as standing behind and underwriting the second-order institutional framework, also begs key questions. Although there may exist relatively settled mechanisms for channelling and engaging in the kind of deeper  contestation that this more elemental level of politics implies, ranging from formal constitutional amendments procedures to judicial and other presumptively authoritative interpretations of disputed second order provisions, this third order of contestation in its turn involves certain presuppositions whose questioning  point us to a fourth order or level of  debate:  namely who are  the “subjects” and what is the nature of their  subjective bond to this “felt need” to put things in common,  and what is the proper  “sphere” and legitimate scope of  this  common enterprise? In other words, which constituency is appropriate and apt to put things in common - to bring matters to collective decision - and to what extent and in what domains is it prepared to do so?
The answer to both of these fourth order  questions today are typically deeply embedded and presupposed in an existing institutional complex which conforms to a recognised template, namely that of the state. To the extent that the world order remains a “states system”, the state both defines the relevant subjects of political community and the relevant spheres of their collective decision-making capacity – a domain which under the sign of state sovereignty knows no limitation other than those limitations decided by the political community itself or those visited  upon it  by external constraint. Just because the  statist template remains so deeply embedded,  it is often taken for granted and does not rise to the surface of conscious debate or active contestation. However, its regular taken-for-grantedness does not mean that it is free from difficulty or active controversy. Both internal claims and pressure from classes and constituencies who perceive their interests and values to be subordinated and from national and other minorities who feel their identities marginalised, and, increasingly, external claims and pressure from those, whether other states or organisations or communities of practice or interest, who – in a globalizing world in which the “externalities” of state decisions are increasingly significant – are affected by but do not contribute to state decisions, or, conversely, are capable of influencing or compromising  the effective decision-making capacity of the state despite not being its subjects,  bring to the surface questions about the appropriate subjects and forms of subjective representation and about the effective domain of  the state as a political community. 
Finally, then, insofar as  disagreement and controversy  over who are the subjects and what is the proper domain of the “felt need” to put things in common (fourth order) and how, in turn, this political collectivity is allowed to monitor, reform or interpret (third level) the  framework of just institutions (second order) put in place to resolve  basic differences over interests, values and identities (first order) is raised to the level of theoretical awareness and political consciousness and not simply assumed or imposed as a default framework, we may conceive of  a fifth order  which seeks to provide a framework to address that controversy.  This is where the  relationship between constitutionalism and polity legitimacy reaches its critical point of convergence, the stage at which the “who decides, who decides” question is either fated to infinite regress – to an  irresolution which leaves political community impossible or inherently unstable,  or receives some kind of institutional resolution through an authoritative constitutional settlement. The paradox of constitutionalism lies precisely in the fact that, while the very viability  of political community depends upon this matter in fact being addressed and a line being drawn over the process of regression, any such line will itself involve a particular group of people, whose identity cannot  be self-legitimating, making particular decisions, whose content cannot be self-legitimating,  that have particular implications for the resolution of lower level disagreements, and will perforce fail to accommodate all the particular disagreements implicit in the various other levels of contestation and which push the debate inexorably to this higher level in the first place. For there is no good reason, other than the demands of viable political community, why the process of regression should not continue to infinitude. There can be  no finally and decisively fair manner, and certainly no method which can guarantee acceptance by all affected, of deciding who and in accordance with what procedures gets to decide who are the proper subjects and what is the proper scope of a  political  community, which defining criteria of authorship and domain shape the establishment and oversight of the  institutions through which the diversity of primary interests, values and identities are politically articulated and negotiated.
3. The Paradox of the EU Constitutional Polity
As should be apparent from the above discussion, politics, even constitutional politics, does not often consciously engage on the fifth level, but rather is implicitly framed by the prior resolution, however contingently and partially settled, of that highest order question. The stuff of  everyday politics is the set of the concerns we find articulated at the first level and negotiated within the framework set at the second level. Even the stuff of what is commonly conceived of as constitutional politics typically does not go beyond specific assertion or questioning of elements of that second order institutional frame, and usually by resort to mechanisms, whether judicial interpretation or explicit procedures of constitutional amendment, that provide already institutionalised answers to the third order question of what the more basic circumstances of “our” politics require by way of appropriate mechanisms for questioning our second order arrangements. That is to say,  constitutional politics usually does not put in question who are the appropriate authors and what is the appropriate extent of the felt need to  put, or rather, to keep things in common at the first and second levels,  but instead falls back on the institutional solutions that “we” have already found  to resolve questions where the meaning or content of existing  second order solutions is disputed. In sum, constitutional politics  typically takes place at the level of the second order institutional operation of the polity,  with occasional but institutionally framed resort to the third level..  
 Only exceptionally in the context of state politics are the higher order questions at the fourth level  put squarely at issue in a fifth order constitutional context, although short of these framing moments  there may of course be a more or less significant undercurrent of discontent or instability  due to the internal or external forces listed above – whether through the claims  posed by indigenous constituencies who believe their interests, preferences and identities to lack proper recognition and articulation in the present settlement or through  external pressures on  legitimate or effective state capacity. The framing moments happen where the entirety of the constitutional order becomes the object of political (re)consideration, whether in the context of new beginnings – of renewal of political community -  or at first beginnings. 
Take, first, the situation of  renewal of political community. This renewal  may be more or less simultaneous with the demise of the old constitutional order, without significant discontinuity of the polity as such,  where, for example  a particular second order institutional regime has failed and/or where a particular  dominant political configuration  has been ousted by internal revolution or external force. Or renewal may be after a period of time, where the polity has reformed after a period of interruption, as is the case with many of the post-Soviet states of Central and Eastern Europe. However, we should be careful not to exaggerate the degree of higher order debate which need go on in either of these contexts of renewal. Certainly, the new Constitution may be important as a symbolic endorsement of the continuation or revival of the polity, as well as of a change of political leadership and./or second order institutional regime, but just because we are dealing with renewal of an already existing political community with a discernible historical lineage of authority and self-identification as a political community, this endorsement will often be without much reflection on the proper subjects and forms of subjective identification and representation or the appropriate domain of that political community. Indeed, the very point of such endorsement, and a large part of the motivation behind constitutional renewal,  often to the frustration and disillusionment of certain minority communities and subordinate constituencies,  may well be to project the settled  and presumptively legitimate nature of the definition of the subjects and domain of the polity. 
There is, of course, more scope for fifth order deliberation in the context of first beginnings. Here is the first opportunity for the constitutional endorsement of a political community, and so by definition the question of the proper subjects and domain of the political community will not have been definitively settled in advance. However, here too, we should not overstate what is put at issue. Often, a prior sense of “we feeling” - of  a national or proto-national community of attachment, will be appealed to and represented.. Often, where some degree of mobilisation of political community is nevertheless required, this may be facilitated by some kind of catalytic event; for example, as in the US  or modern post-colonial context, a war or struggle for independence. Often, then, because of these factors, the first Constitution will, at least as far as the preferences and predilections of those who succeed in asserting themselves as its framers are concerned, be more by way of ratification and enforcement  of the claimed prior sense of community or of the legitimacy of the struggle through which the sense of community was begun or deepened,  and of the working out of the second-order institutional details through which the “felt need” to put things in common should be legally articulated, than a reflection on the need for, viability of  and appropriate boundaries of political community in the first place. What is more, sometimes there will  have been a degree of institutional autonomy in advance of independent statehood, prototypes of many of the second order institutions will exist, and so even this lower order exercise of institutional design will not take place in a vacuum. Finally, and to recall an earlier point, it is always the case that, if we are dealing with  the foundation of statehood, there will be a general template of the proper domain of authority – namely the very idea of an authority unlimited in the spheres to which it refers except through the self-limitation of the state itself – to guide the  project of  constitutionalizing this particular state.
If we turn to the European Union, ironically enough, its very existence as a  supranational order is itself closely linked to the problems of collective action which arise when the interdependence and reciprocal externalities of state decisions have reached a certain pitch of intensity. That is to say, the European Union is both product, -  and, in some measure at least, reinforcing cause, of the kinds of external pressures on states in the face of more intense transnational circuits of economic power, communicative capacity, cultural diffusion and political influence which render increasingly problematical the received Westphalian model of constitutional statehood. It is a product of these ‘globalizing’ pressures  in the sense that a series of decisions of states to deem various matters apt for common resolution  where their interests appeared increasingly interlocked was initiated  partially on account of the aforementioned strengthening of transnational circuits of influence.. It is a reinforcing cause in the sense that  the very creation of the new supranational order, with all the self-reinforcing concentration of political power in a new institutional framework of authority it has brought, clearly adds to the  external challenges to state authority. Be that as it may,  the instant point is that, for all that its very existence  reflects and reinforces a measure of vulnerability in the template of authority which traditionally has permitted a relatively settled set of answers to the higher order questions of the constitutional polity at the state level, the EU itself is now confronted with these problems much more intensely. We can tease this out by comparing the EU, first,  with a state in a process in a stage of constitutional renewal, and secondly with a state at the stage of first constitutional beginnings.
To what extent can we compare the EU to a state polity in the process of renewal? Certainly, in terms of its  extensive decision-making jurisdiction over first order issues, in its sophisticated second order institutional complex for deliberating on and resolving first order issues differences, and in is self-assertion of the principles of supremacy and direct effect to ensure the superiority and bindingness of the norms which are legislated, executed and adjudicated upon within this institutional complex, the European Union already covers much of the profile of the “material constitution” of a state constitutional polity. Indeed, this is  reflected in the EU’s long if sketchy history  of constitutional self-description  prior to the present documentary constitutional phase. Yet for all this ‘lower order’ similarity of constitutional norms and practice and the familiarity of the  reference to or presupposition of a prior constitutional tradition, this does not mean that the EU in its present constitutional moment is engaged in a process of polity renewal analogous to that exercised by states in the phase of constitutional renewal. For the EU clearly lacks the settled  sense of its subjects and of their ties to the political community  and of the domain of that political community  that form  the “higher order” credentials of a pre-established state  as a constitutional polity. Neither is the fact that it is absent these  credentials simply a matter of its lack of any prior explicitly constitutional document to resolve or confirm the resolution of these higher order questions. To illustrate this point, if,  as the last remaining developed state to lack one,  the United Kingdom were to move to establish a written constitution, then by contrast to the EU it would not have to resolve the polity question ab initio, but would start from the default premise that its subjects were defined by the acknowledged territorial boundaries of the United Kingdom and by their prior investment in that political community  and that its domain of authority was the potentially unlimited jurisdiction associated with all states. 
Accordingly, although there are certain lower order similarities between the EU  in its present constitutional phase and a continuing but renewing state, at the higher order level it is more akin to a polity at the stage of first constitutional beginnings, for in neither case has the question of the political identity of the subjects and the proper domain of the polity yet been definitively resolved. Yet the starting position of the current EU remains distinct from that of the new constitutional state in four significant respects. First, unlike many states at their founding constitutional moment, it lacks the strong identitive traits or sources of “we feeling” of common language, traditions,  affective symbols and developed civil society and public sphere to which the claim to form political community can refer and appeal, and so it cannot count upon the active endorsement or even in some cases the acquiescence of its putative subjects in the existence still less the proper domain of  the need to put things in common. Secondly, unlike  many of these states, it lacks the mobilising dynamic of some obviously and immediately catalytic event, whether a struggle for independence or a political revolution, to help forge that sense of political community. Thirdly, unlike all states in their founding phase, the type of political community the EU seeks for its putative members neither claims to be already  exclusive of or dominant over other forms of mature and independent political community at the moment of foundation,   nor does it seek by that act of foundation to reinforce itself as or even become the exclusive or dominant source of such mature and independent political community for its members. For the EU is entering its phase of documentary constitutionalism  at a point where all its citizens also remain citizens of its sovereign member states, and except perhaps on the most ambitiously “statist” projection of the European Union, it is not seriously intended that the documentary Constitution replace these states as the sole source of political community of its member states or to reduce these states to a subordinate status – downgraded to the provincial parts of the federated whole of the European Union. Rather, insofar as autonomy is sought for the EU polity, it is “autonomy without territorial exclusivity” – a claim to original or non-derivative authority over a territory that is contiguous with the territories of other original or non-derivative (state)  political communities and over  populations that continue to understand themselves also as members of these other original political communities.   Fourthly and finally, therefore, that the European Union is added to a map of political authority already coloured without remainder by states and their populations means that, unlike all such states  in their original phase, it also lacks the critical standard and background presumption supplied by the idea of a potentially unlimited and so only self-limiting domain of action as a general template for  the proper sphere of its action. There may be many examples of “failed states,” of states which lack or lose the capacity to harness effectively the reins of authority, but here  there is at least a model and a benchmark against which success or failure may be measured. The EU, by contrast, has no similar general model to guide or vindicate its frame for accommodating  whatever “felt need” it possesses to put things in common. There is, in short, no genus of the polity of which it can confidently identify itself as a species.
If we brings these point together, the singularity of the paradox of the European Union constitutional polity would seem to lie in its particular  mix of epistemic and motivational problems, which problems map onto the ‘authority’ and  the ‘community’ dimensions of political authority respectively. Moreover, just as the ‘authority’ and ‘community’ dimensions of political authority strongly presuppose  one another, so, likewise, do the epistemic and the motivational problems. Epistemically, the EU struggles to find a basic grammar for the new language of political authority it must speak.  If its position as a constitutional polity can only be as one  situated alongside and overlapping state constitutional polities without being either superordinate or subordinate to these state constitutional polities, how and on the basis of whose legitimate authority and active support is the EU to conceive  of the nature and limits  of its authoritative domain in  relation to the  continuing original authority of the states, and, relatedly, of its relationship with its citizens  all of whom are also prior members of these state communities? Motivationally, just because, looking backwards,  the EU  lacks a thick basis of common attachment  on the basis of which to put things in common  and, looking forwards, it lacks an urgent sense of shared predicament to supply this deficient social glue and to provide a sense of the legitimate  domain of the polity, how else is it to find and nurture the sense of common engagement necessary to identify that legitimate domain and effectively mobilise political effort within it? 
Moreover, not only do the epistemic and motivational problems seem to be the two sides of the same conceptual coin of polity legitimacy, but  in practical terms, too,  they are  locked into a relationship of mutually reinforcing cause and effect. If we return to the epistemic problem of how to conceive of the subjects and domain of a novel type of political community where neither territory nor population is exclusive or predominant to that community, then the motivational problem of non-predominant membership and so the prevalence of variously absent, weak, reluctant, subordinate and in any case collectively disputed  ties of membership is, on the one hand, not only  a constituent element of the epistemic puzzle to be solved, but on the other, also political cause and effect of that puzzle – both  a reason why it is not easily brought to  common engagement and resolution and a reinforced outcome of that irresolution.     
This, then, is the reason why  constitutional momentum may seem both elusive and vital in the EU constitutional context. It is elusive just because  the epistemic and motivational problems at the heart of the EU constitutional paradox are mutually-reinforcing, and so suggest no firm starting point for establishing constitutional momentum. It is vital because there exists in that very same intimacy of the relationship between the epistemic and the motivational issues a positive as well as a negative potential. Just as the problems are mutually reinforcing, so in theory might their solutions. The key to the reversal of the process – to transforming the vicious circle into a virtuous circle  - lies in  establishing a dynamic whereby the epistemic and motivational problems may begun to be treated in a cumulative and mutually supportive manner. It depends, in other words, on the emergence of conditions in which the question of how to form and where to draw the limits of a  novel type of political community situated alongside states and whose members are all  dual citizens is a question that  these dual citizens and other putative members are broadly persuaded is  worth pursuing and answering in common. 
 So, in practice,  can the fifth order constitutional frame, which reflects and highlights the paradox of the constitutional polity in its particularly elusive transnational guise, also be the basis for its overcoming? Can the constitution be not only  the problem but also the solution? First, let us look in more concrete terms at the ways in which the constitution may with some persuasiveness be viewed as merely the reflection or  repository of the problem of polity legitimacy in the EU context, and then let us look at how it might nevertheless be the source of the solution.
4. The Constitution as the Problem. The Diversity of Polity Oriented Constitutional Strategies  
(a) The Constitution as condensing symbol  

So far, we have conceived of the fifth order constitutional resolution of the problem of polity legitimacy as a conceptual possibility, one which has been resolved in different ways and against different backgrounds in various moments of constitutional foundation or renewal. But of course, those involved in constitution-making do not approach their task as a conceptual possibility, as a disinterested exercise in the nature and limits of political theory.  Rather, they have their own agendas, their own ‘lower order’ and/or ‘higher order’ reasons for addressing the question of the nature of the subjects and domain of the political community in particular ways, and their polity-oriented constitutional strategies, to the extent that they are at all explicit, will reflect these agendas   Nor, and certainly not at the moments of first beginnings of documentary constitutionalism, is the outcome of the struggle between these different polity-oriented strategies  likely to be made clear simply  by the mere fact of signing and ratifying the constitutional text. The struggle over the meaning of the text as a whole and of its various parts will continue, and, as in the case of the division between federalists and anti-federalist at Philadelphia, it may take many years and much bloodshed before it is resolved, or at least before a dominant meaning is consolidated. But in the instant case we do not have the luxury of retrospective wisdom, of knowledge of the terms on which and the extent to which the EU has succeeded or failed as a mature polity. All we have, instead, is the variety of  polity-oriented constitutional strategies jockeying for position and struggling for ascendancy in the here and now, and our estimation of how that struggle is likely to become engaged and to progress.
In the present section, I want to  argue why the polity-oriented constitutional strategies in the EU debate are particularly diverse and why they may be particularly resistant to the development of an ongoing constitutional momentum which holds out the prospect  of the emergence of a dominant and reasonably consensual answer to the higher order polity question. Before this argument, can be developed,  something must be said about polity-oriented constitutional strategies and the social meaning and symbolic implications of  constitutionalism more generally.
 	By polity-oriented constitutional strategies I mean the range of strategic roles which may be  accorded  to the putative EU Constitution, and towards EU constitutionalism more generally, as a means towards the sustaining or realisation of a particular overall vision of the legitimacy of the EU as a political community.  Each polity–oriented strategy, therefore, contains an implicit or explicit answer to two types of question. First, there is the question we have concentrated on so far. What kind of polity is it envisaged it is possible and appropriate for the EU to be?  Secondly, in the realisation of that polity vision or “structural ideal”, what kind of contribution is possible for and appropriate to constitutionalism in the EU, including, most urgently, the contribution, if any, of a written constitutional settlement?  Just as we can break the strategic question down into two parts, so this suggests that the possibility of conflict and disagreement  over the question of  the relationship between the constitution and polity legitimation may also occur at two levels – both over the fourth order polity vision and the fifth order constitutional means of realising that polity vision
	Of course,  conflict over means is intimately related to conflict over ends, and to that extent the latter is reducible to the former. Yet, to complicate matters,  the possibilities of conflict and disagreement over the constitutional framing of the debate and its instrumentalization of  a resolution is by no means exhausted by the different polity ends towards which the debate is directed. For what is potentially at stake in the  constitutional debate is nothing less than an  entire register of meaning about the relationship between politics and society. Political thought and rhetoric in all modern societies, once it rises above the first-order bare articulation of interests, values and identities and becomes about the making or presupposition of  political community, is suffused with constitutional symbolism. To put it another way, constitutionalism in modern societies provides a key  “condensing symbol,”  a   modality of thought, affect and discourse  which enables individuals and groups within a political community both to make sense and to articulate a sense of their common past, to form and pronounce judgements about their common  present, and to plan and project various imagined common futures. Three points of immediate significance flow from this.
First, there is the sheer open-ended inclusiveness of what may be signified under the constitutional sign. All the questions that citizens and politicians  may have about how to put things in common, about how to do politics together, while they  are in fact framed in a variety of different discourses, are also capable of being  brought together, or condensed, under the wide umbrella of a constitutional register. Just as in the conceptual pyramid set out above to trace the ultimate paradox of the constitutional polity we see close connections between the various levels, so too in the world of social and political meaning citizens and politicians  often do not make a general category distinction between  questions concerning the particular meaning of a specific right framed or competence delimited  under the extant framework of just institutions on the one hand, and questions concerning the legitimacy of constitutional amendment procedures  or the general foundations of legitimacy of the polity on the other. All are seen as constitutional questions, issues amenable to debate ‘in the name’ of a particular positive constitutional norm or a framework  of general constitutional aspirations.
Secondly, social meaning is also always historically constructed and mediated meaning. The meaning of constitutionalism, or, indeed,  of any “condensing symbol” in the here and now, cannot simply be divorced from the sense of constitutionalism that the participant have brought from other situations and from their received understanding of earlier social understandings of constitutionalism.
Thirdly,   the fact that, like all “condensing symbols,” constitutionalism speaks to the possibility of a widely shared and a broadly communicated register of meaning, means that the symbolic implications of constitutionalism will be as much  ideological as ideational. Constitutionalism, is  both a means to make sense – individually and socially – of the relationship between politics and society, and a means of conveying or communicating that sense more or less persuasively to others. It is, in other words, a form of social power as much  as a code to social understanding. Again, the greater or lesser influence, or ideological impact,  of  particular constitutional interpretations  can be traced at various levels of the constitutional order and in accordance with a variety of different mechanism and authoritative ‘voices’ (judges, constitutional councils, legislatures, executives etc.), but what we are primarily concerned with here is how the constitution conceived holistically can provide a socially legitimate vision of the kind of political society  it seeks to construct. As one writer puts it, “[I]n so far as constitutions are themselves considered authoritative this is because they construct, focus, organise or affirm in certain ways plausible images of the general nature of the society comprised of those whose allegiance to the constitution is required.”  Particular holistic interpretations of constitutions, in other words, will seek to present the constitution as conveying an image of society (popular republic, monarchy etc.) which, if accepted, will create a receptive audience for just the kind of authoritative claims the constitution makes. 
Clearly, there is a self-projecting and, if successful, a self-fulfilling element to this kind of constitutional symbolism, and we will have more to say on the positive dimension of this  later. For the moment, however,  as with the other two dimensions of constitutional meaning or symbolism highlighted – its capacious reach and protean quality in the first place and its situation  in a historical tradition in the second, this self-fulfilling projection of constitutional meaning is important for what it tells us about the scope for and the implications of the diversity of polity-oriented constitutional strategies in the EU.
In the first place, then, the sheer capaciousness of  the field of constitutional reference means that the motivations and strategies of actors in the EU constitutional debate need not directly connect with the higher order questions of the subjects and domains of the political community at all. As already noted, the EU already has a well developed  second-order institutional framework, which makes it possible in the name of constitutionalism for some to concentrate their efforts in the constitutional phase  on the affirmation or reform of the “material constitution”, or at least to minimise the independent significance of the higher-order questions in the light of the greater urgency of particular institutional questions and their general satisfaction with the existing default solution to the higher order questions. In the second place, that the social meaning of constitutionalism is grounded in a set of historical experiences and memories, means in particular that the state tradition of constitutionalism provides a powerful backdrop for the attempt to make sense of the EU in constitutional terms. Many of the general categories of constitutional thought, from sovereignty, fundamental rights and representative democracy  to the federal layering of competences and the separation and the balancing of the central organs of government have been honed in a state context,  and the understandings taken from that context cast a long and sometimes distorting  shadow over attempts to apply constitutionalism to the transnational or supranational level. Thirdly, and relatedly, in the EU context, regardless of the particular content of the self-projection of political community through the constitutional instrument, the prior fact that the projection takes place in a constitutional frame at all is not innocent of social meaning. The invocation of a constitutional frame  already conveys the message that the EU is the kind of entity which is suitable for constitutional treatment. And since, in  historical terms,  the paradigm case of the kind of entity suitable for constitutional treatment is the state, such an invocation  may relay the controversial message that the EU has or aspires to state-like qualities, or at least that it is a political community of standing equivalent to or comparable to that of a state. 
(b) strategic diversity
With these points, in mind, let us try to examine and appreciate the depth of   diversity of polity-oriented strategies brought to the current EU constitutional  debate. But first a caveat. For all the attractions of taxonomy in providing a  categorisation of strategies, we should be careful not to read the panorama of constitutional aspiration brought to the present debate as fitting neatly into self-contained and mutually exclusive  polity-oriented strategies. Some strategies shade into one another, others though quite distinct  are not necessarily mutually inconsistent but may be held concurrently with greater emphasis on one or the other, or may be asserted consecutively by the same party. This fuzziness is a product both of the complexity and uncertainty of the choices of constitutional strategy available and relevant to the Europolity debate – given precisely that we are operating in the largely uncharted territory of the constitutionalization of a transnational polity as opposed to the more familiar state polity – and of the variable interest in and appreciation of the strategic possibilities of the participants in the debate. As noted (and, indeed, this is a contributory factor towards the deep diversity of the present debate and its resistance to the development of constitutional momentum), many participants may be ‘constitutionally’ motivated by the  institutional securing or favouring of  discrete interests and values. And even where there is a degree of extrapolation  from these more discrete preferences to a more holistic sense of the constitution and its role in polity-making, discursive awareness of this may be limited and commitment weak and uncertain, or may even trigger a secondary strategic preference not to highlight the higher order questions either from a self-interested attachment to the existing default settlement or from a more pragmatic concern  not to invite the conflict which the raising of such questions threatens. . Nevertheless, the following classification serves a certain heuristic value in  setting out the obstacles to a more positive reading of the constitution’s potential to address the problem of polity legitimacy.
First, then, we may consider the strategy of  constitutional denial.  This is the default attitude of the constitutional sceptic. There are a number of variants of scepticism, but of most immediate relevance are two forms  specific to the EU. There is, first, an attitude of deep scepticism, which simply holds that the EU is just not the kind of entity that is worthy of characterisation in constitutional terms. There is also a more contingent scepticism, which often shades imperceptibly into the deeper  scepticism. The more contingent version of scepticism holds that while we should not rule out the possibility of a 'truly' constitutional status for the  EU, and so should not entirely dismiss the prospect of  a constitutional moment, no such status is yet appropriate and no such moment has yet arrived. 
These attitudes are closely associated with a state-centred view of constitutionalism, one in which states are not only the exclusive or dominant bearers of the constitutional tradition but also the exclusive or dominant heirs to that tradition. It is a view that reflects  the idea that because the EU lacks certain key legitimacy and functional prerequisites of polity status, in particular a demos - a prior political community which identifies itself as such and which has  the sense of common attachment necessary to make decisions in a manner and commit resources to an extent seriously capable of addressing matters of common interest, and, moreover, is  broadly perceived as legitimately possessing that capability - then it cannot be a genuine candidate for constitutional status. On this view, the formal rituals of constitutionalism - documentary or otherwise - are seen as just that, as so much rhetoric and ceremony, without the social and political substrata necessary for their effective operationalization and legitimation. The Constitutional Treaty, for all its forensics and fanfare, can be nothing more than a false or ersatz constitutionalism, a text which illegitimately frames an essentially state-derivative legal configuration in autonomous and original terms, rather than a event which recognises or brings into being a new pouvoir constituant for the European Union.
For all that the successful establishment of a constitutional process in the Convention on the Future of Europe might suggest otherwise, the continuing influence of the strategy of constitutional denial  should not be discounted. To begin with, it at  least partly accounts for the extremely modest extent to which the work of the Constitutional Convention penetrated popular consciousness.  For example, a Flash Eurobarometer Poll conducted on the very weekend that the fruits of the Convention were presented to the European Council in Thessaloniki in June 2003 reported  that 55% in a transnational survey had not even heard of the Convention, and that only 32% could accurately characterise its product as a Constitutional Treaty, as opposed to some lesser species of text.   Whether and to what extent the result of ignorance in the face of an apathetic press coverage, or of indifference, or of hostile denial, it is difficult not to see these and similar figures later in the process, and indeed a similar disengagement from or at least ambivalence towards the constitutional process amongst various organised political groupings, as at least in some parts an indication that denial of the viability of   European political community and of the value or legitimacy of a constitutional settlement for that community remains well-founded in the attitudes of some members of that putative community. 
Paradoxical as it may seem, constitutional scepticism also provided some of the motivation behind the Convention and its product, and this points towards a second polity-oriented constitutional strategy which remains sceptical in principle but which finds pragmatic grounds for not refusing to engage, namely the strategy of  constitutional truncation. Many constituencies historically opposed to the idea of the European Constitution as an inspiration towards and mark of European political community became in the pre-Convention phase converted to the constitutional process not as a polity-making or polity-consolidating device, but as a polity-limiting device. Groups such as the German Lander with their commitment to a strong competence catalogue or the various other Eurosceptic voices who supported a Charter of Rights as a power-constraining rather than a power-enabling device, became strategically reconciled to the constitutional process as a way of freezing the process of integration and cutting off the possibility of future development. They did so  in the name of that important dimension of the constitutional tradition devoted to the limitation of government power, rather  than as a mark of their conversion to the idea of the EU constitution as constitutive of  a robust self-standing polity. 
A third strategy, or series of strategies, while not sharing the ‘in–principle’ hostility of the first two approaches to the very idea of the EU Constitution as a claim to full polity status, is at best indifferent to that claim and at worst sees it as a distraction or a strategic impediment. This covers the whole range of approaches which view the Constitution as no more than a timely opportunity to change or affirm particular aspects of the “material constitution” – the second order rules for the reconciliation or negotiation of first order differences. Two particular variants of constitutional materialism may be identified. On the one hand, there is a whole range of processualist approaches which hold that constitutional discourse and practice within the European Union should not be seen exclusively or even mainly as a matter of Treaties and self-styled constitutional documents. Rather, the test of constitutional relevance should be functional rather than formal, and any activity and any form of reflection that is concerned with the overall legitimacy of the European juridico-political order should be seen in terms of a constitutional register. If this view is taken, large public events, and, indeed, general constitutional doctrine and institutional arrangements  are merely the tip of the iceberg. Underneath, other 'constitutional' practices are seen as unfolding, and it is this ongoing dispersed process of articulation and re-articulation of various parts of the constitutional whole which supplies the key dynamic rather than the surface movement of 'grand' constitutional events and outlines. 
Of course, to  downgrade the making of the documentary Constitution or the large institutional structures which are its progeny in favour of the more detailed machinery and processes of governance is to make a normative rather than an empirical judgement. Underwriting that normative judgement will be both negative considerations against constitutional ‘surfaces’ and positive considerations in favour of constitutional ‘depths’ In turn, these considerations embrace a complex range of factors, but one important one, once again, is the attitude to democracy and its optimal constituencies and forms. Negatively, a Europe-wide constitutional event is not seen from the processualist perspective as especially conducive to the development of a Europe-wide demos, either because the kind of state–centred democratic approach which is resistant to the very  possibility of a European-wide demos is endorsed, just as it is in the two forms of constitutional scepticism discussed above, or because the making of  a Europe-wide demos is seen exclusively or  largely as a matter of the accumulation and progression of micro-processes located in a myriad  of different levels and sites of governance. Positively, however, this scepticism about  the transnational democratic collective and about the role of the documentary Constitution in recognising or constituting that collective does not in the case of the processualists translate into a generic constitutional scepticism. This is either because, if they start from a state-centred conception of democracy, the processualists nevertheless see other important forms of legitimation, often of a technocratic and/or procedural nature, as being important to the Euro-polity and as capable of being shaped and encouraged in constitutional micro-processes, or because their more “bottom-up” conception of European-wide democratic process is seen as requiring its own kind of “bottom-up” constitutional register, one in which constitutional concerns about the overall democratic legitimacy of the polity organism  are  inseparable from the production and reproduction of each of its individual cells. Whichever the underlying orientation and motivation, the processualist tends to focus on mechanisms which are given little direct recognition within the Treaty structure, such as comitology or the Open Method of Co-ordination (OMC) or local partnership agreements or other "new" forms of governance which are then viewed, by dint of the pervasiveness of their practice and their actual or potential cumulative transformative effect upon the general structural and cultural template of European regulation, as vital constitutional processes which are in danger of being obscured by the focus on surface activity. Insofar  as there are opportunities for these matters being dealt with at the formal constitutional level, of them coming to the surface, then that opportunity should be taken, but this should at best be seen as one level of a multi-level strategy rather than a focal concern, with the danger persisting that this will prove to be a false window of opportunity which misallocates political energies and  marginalises the real constitutional debate for a post-state political configuration.
A second main  variant of materialism we may term constitutional serialism. On this view, constitutional development at the level of general second –order rules is cast in more positive terms. The reservation of the serialist, unlike the processualist, does not concern the significance of the  second-order rules as such, but rather  their entrenchment as rules of superordinate status with few opportunities for and difficult thresholds of reform. For the serialist, institutional redesign is best done in an  iterative series, as regular links in an indeterminately  extended chain  rather than in rare and axiomatic moments of constitutional figuration and reconfiguration. The endorsement of an iterative pattern is, moreover, supported by  the  recent history of structural reform in the Union. After 30 years of relative Treaty stability, the 1990s and the early years of the new century have seen two rounds of Enlargement (the latter by far the largest to date), three Intergovernmental Conferences and subsequent Treaty revisions - the last two of which have in part been in response to the enlargement process, a Charter of Fundamental Rights, and a plethora of other major institutional  initiatives which  were arguably 'constitutional' in their concentration on second-order institutional design if not in name, - all before the present Constitutional Treaty (which, as another indication of its unexceptional status, shows strong similarities to its two predecessors in numbering Enlargement amongst its  proximate causes)  was even a gleam in the drafter's eye.  The serialist sees in this contemporary move towards  a "semi-permanent Treaty Revision process"a reasonably healthy reflection of ongoing structural debate within a polity-in-the-making - a sign of an entity pragmatically responsive to the dynamic expansion in the reach of European policy-making and seeking to come to terms with the diverse and changing aspirations of its citizens. On this view, there is no reason to regard the present process as anything other than the latest in a long series, and one which should not be treated with any special reverence or preserved with any special care.
Alongside these three approaches, each of which with greater or lesser emphasis declines to endorse the idea of the present constitutional phase as a polity-defining event,  we find three other strategies  which in their different ways seek to cash the larger symbolic dividend of constitutionalism. One such strategy is that of constitutional stealth. By and large, this strategy  was exhausted by the time the Constitutional Convention was in full flow, but it remains of interest for the bridge it provided towards and its continuity of orientation with  certain other approaches to be considered below. By constitutional stealth is meant an attitude where the  extent and motivation of the strategy to achieve constitutional status is not  fully acknowledged or explicated in public discourse. In this regard, the drive towards consolidation of the Treaty texts in recent years has been an important medium.  One important factor in keeping constitutionalism on the political agenda in a relatively uncontroversial manner  in the years between Amsterdam and Laeken, and indeed one of the four themes in the 2000 Nice Declaration which paved the way for the establishment of the Convention at Laeken in December 2001, was the commitment to reorganisation  and simplification of the Treaties. To some extent, this is an idea which has to be taken on its own merits – as a  modest contribution to providing a more legible and accessible framework for the EU’s labyrinthine  “print community”, but that does not exhaust its strategic significance. The idea that mere consolidation and a commitment to rationalisation and reorganisation should provide a significant rationale for a constitutional text (as opposed to a more modest revision instrument) provided a convenient pretext for those with more ambitious objectives; a low-key mechanism, “lawyerly” and politically uncontentious, for gradually manoeuvring a larger project of constitutional reform into the political frame. . The same attitude of stealth, or at least of prudence, continued to animate the preparatory stages of the Convention. We witness only a cautious widening of the agenda from  consolidation at Nice, to proto-constitutional in the Laeken text and then to fully constitutional only once the  Convention, having accepted far more diffuse initial terms of reference, was well underway. The Convention’s final product may not, as one commentator  suggests,  have been an “accidental constitution”, but the obliquity of the decision-making sequence suggest that some at least were happy for it to look like an accident!
The full significance of the strategy of stealth becomes clear when we turn to a fifth, and certainly among the main players and supporters of the Convention, dominant polity-oriented constitutional strategy, namely that of constitutional vindication. Central to this approach is the idea that the present constitutional phase represents a kind of constitutional coming-of-age for the EU polity, a recognition and  affirmation of its hard-won maturity. On this view, the Constitutional phase represents a significant symbolic discontinuity with the past, an earnest of the Member States’ integrated commitment to “attain objectives they have in common.” Yet, not only does symbolic discontinuity here stand in contrast to a notion of substantial material continuity with the record of past practice, but it is precisely  from this contrast that the symbolic idea draws much of its potency. For the meaning  that is conveyed in the vindication approach is that the main ‘added value’ of the constitutional process is the very act of constituionalization itself rather than its material consequences. The message conveyed is that “Europe” has confirmed its identity as a polity by its very capacity to mobilise to endorse  what it already held and has achieved in common, and that in this agreement to  crystallise and consolidate lies the proof of its status as a political community and all the answers necessary to the higher order question of the epistemic and motivational basis of that political community.
As with the earlier approach of constitutional materialism, we can identify two variants of this strategy, although more markedly than the earlier case they have a tendency to shade into one another and are probably best viewed as different points on a continuum rather than discrete approaches. In the first place, and most obviously continuous with the stealth or prudential approach, there is a historical contextualist approach which points to the gradual development of a constitutional register of debate and self-interpretation by the ECJ and, in time, by other European institutions over the past 30 years, as well as to the basic ‘material’ continuity of the institutional architecture of Council, Commission, Parliament and Court as evidence that the EU already has its own distinctive and deeply-rooted constitutional heritage. On this view, the Constitutional Treaty should be and indeed palpably has been concerned mainly with ratification of the status quo ante.  Part III of the Constitution maintains a commitment to droit constant.  Part II on Fundamental Rights merely formalises the legal status of another event, the declaration of the Charter of Fundamental Rights in 2000, which is itself a mere restatement of existing principles. Even Part I, which deals with major institutional and authority-generative provisions of the new Constitutional settlement, may be viewed  largely as a distillation of existing practice and arrangements. The innovation of a self-styled Constitutional Treaty, on this view,  is seen predominantly as an exercise in documentation, with the new text much more a repository or record of existing constitutional doctrine and practice than a source of something new - and indeed this line was taken by many of the key Convention figures when presenting the final text. Implicit in this affirmation of past practice is a normative caution. If there is indeed a pre-Constitutional Treaty constitutional tradition, and one which, somewhat like the British common-law, has grown slowly and incrementally and has thus become  embedded in a  conception of practical reasoning  distinctive to the supranational situation, this is a tradition that we should perforce handle with care and dismantle at our peril. 
       A rather different, and somewhat less conservative version of the strategy of vindication, can be seen in the approach, highlighted in an influential speech by the German foreign minister Joschka Fischer in the lead-up to the present constitutional debate, of viewing the constitution as the emblem of commitment  to finalité politique. On this view,  the task of the Constitution is not one of mere consolidation, but of ensuring that the EU makes the reforms to its institutions and to its legitimating foundations necessary for it to capitalise on its progress to date and to achieve a final political form appropriate to its polity maturity. The Constitution, accordingly,  is not itself a vindication of the polity status of the EU, but rather  a means to take the steps necessary to ensure final vindication. In turn, this line of thinking  helped direct attention towards the introduction of measures  into the Draft Constitutional Treaty which might provide the  ‘final push’ for the EU to meet its ‘destiny’ as a fully-fledged polity, whether through the capacity and efficiency gains of streamlined legislative procedures, increased use of qualified majority voting,a stronger and more continuous  European Council leadership,  a dedicated institutional capacity in external affairs, a single legal personality etc., or the  citizen accountability gains of  a stronger European Parliament, more involvement of national parliaments, a clear catalogue of justiciable rights etc. However, as with the previous approach, the emphasis remains one of  continuity, of the fulfilment of a historical mission and the final unfolding of a dynamic which has driven  the EU from the beginning. In other words,  the accent remains very much on the Constitution as a point of arrival rather than as point of new departure.
Finally, this brings us to those polity-oriented constitutional strategies which do instead understand the Constitution more emphatically as a point of departure, to what we might call strategies of constitutional projection. Unlike the strategies of  stealth and vindication, this type of  approach does not simply take for granted the existing polity frame and project and seek to build a constitutional framework that reinforces that existing frame and project. Rather, it seeks a more radical role for the Constitution, one in which its understanding of  the polity question – the nature of the polity’s relations with is subjects and the extent of its domain of action, is transformed and in which  second order institutional provisions both reflect and steer that transformation. Two important observations may be made about this perspective. In the first place, such an approach did not explicitly surface within the Convention itself which, as noted, was instead dominated by positions which tended in their various different ways to emphasise continuity or constraint rather than discontinuity and long-term potential. Secondly, insofar as a more transformative vision did surface at the margins of the Convention or in constitutional debate outside the Convention, it tended still to be dominated by a statist template, as a vision of a social democratic European federation. There are various reasons for this, to do not only with the resilient power of the statist template, but also with the sustained influence of  a kind of thinking about Europe which cannot imagine it solving its deficit of collective action capacity, especially these distributive problems which follow in the wake of the enhanced steering power of transnational capital and  the EU own ‘market–making’ strategies of negative integration, without a regulatory wherewithal and legitimacy akin to that of a welfare state, however federally organised and  committed to the principle of  subsidiarity. Whatever the merits of this approach, the instant point, however, is that it,  too, is ultimately  committed to a form of   finalité, to a vision of how things should end up. It differs only from the more conservative vindicatory  approach in that  here the eschatological exercise projects forward to a different and desired future rather than seeking to consolidate or  reinforce what already exists.
If we consider the range of policy-oriented constitutional  strategies in the round – denial, truncation, materialism, stealth, vindication and projection, then it is not difficult to paint a bleak picture of the potential of the present constitutional phase to establish the momentum required  to  address and overcome in a progressive manner the motivational and epistemic problems associated with the nature and legitimacy  of the European polity. This is due not just to the sheer diversity of the strategies in play, but, more importantly, to the fact that each in its own way is engaged in an exercise of  constitutional closure. The strategy of denial wants to foreclose the very option of a European Constitution because it links that option  to what it sees as an illegitimate aspiration towards polity status. The strategy of truncation, although tactically reconciled to engagement in the constitutional debate,  also wants to close off the wider polity-generative potential of constitutionalism  and instead concentrate on its power-limiting properties. The various strategies of materialism limit themselves to the lower orders of constitutional debate, thereby closing themselves off either by default or design from engagement with the higher polity questions. The strategies  of vindication want to elevate  achievement to date or posit that which flows directly from current achievement to the status of the proper template for the European polity, thus marginalizing  other options. And  even the strategy  of transformation tends to be closed-ended rather than open-ended, teleological rather than exploratory, premised upon one particular vision of the future of the EU polity rather than an uncompromised process of  reflexive self-discovery. 
5. The Constitution as the Solution: Gathering Constitutional Momentum
	Even if we concede the apparent  lack of scope for mutual engagement amongst the deep diversity of polity-oriented strategies  brought to the  Convention and to the present constitutional phase more generally, does this phase not in and through the very act of bringing these diverse perspectives together under a single frame of explicitly constitutional debate hold out the prospect for a gathering of collective momentum around the question of polity legitimacy?  Insofar as it is possible to answer this question in the affirmative, it can only be in very tentative and highly provisional terms, since, as noted earlier,  the success of the constitutional debate in triggering a constructive debate over polity legitimacy can by definition only be judged retrospectively. Let us proceed, then,  to make this tentative and provisional case, by examining afresh the epistemic and motivational problems at the heart  of the polity legitimacy  problem and investigating how, if at all, it may be possible on the basis of the new constitutional frame to imagine their relationship as a cumulative one of mutual support rather than as a stalemate of mutual prejudice.

(a) the epistemic dimension and the authority question
In the formal Kelsenian sense of the hierarchical structuring of legal norms, all  state Constitutions confer, confirm or presuppose their independent and ultimate authority over that which they constitute. Except in the case of the first constitution of a new state, however, this does not necessarily register or reflect an act of transformative political significance, and even in the case of the first constitution, there is, as mentioned earlier, a recognised general  template of exclusive and unlimited sovereignty upon which the particular state can draw. As the  historical-contextualist would remind us, the European legal order from the outset, and with considerable help from its judicial organ the ECJ, has through its doctrines of supremacy, direct effect and implied powers, also presupposed  and confirmed its own autonomy as a legal order. Yet if, as we also recall, the legal system of the EU departs from the state tradition in important respects, in that it cannot simply be conceived of as a  self-referential structure, as an institutional monad with exclusive and unlimited formal authority, but must instead be viewed as an order located within a heterarchical constellation of polities in which questions of the boundaries of  its domain and its relation with other authorities are  controversial and contested, then the question of grounding the claim to authority remains problematical.
Does the draft  Constitutional Treaty, then, advance understanding and agreement about the nature of the EU’s domain of authority? Arguably, it does so – however modestly -  for two reasons.  First, the very fact of a self-proclaimed constitutional document, prominent amongst the authors of which are representatives not only of state governments, but also for the first time under the innovative Convention structure, of national and European  Parliaments, has a palpable symbolic significance in grounding whatever solution is arrived at to the question of the domain of authority  as an authoritative solution. As we saw earlier, many constitutional sceptics only joined the EU debate for tactical reasons, as an opportunity to limit rather than to confer authority, but the fact remains that as a result of a process in which they did  actively engage the EU now has the draft of a document which,  more solemnly and with  a much broader representation of institutions and constituencies both nationally and supranationally located than  previously,  does purport to set out the basis of is own authority. 
Secondly,  given that even with the symbolic weight of a constitutional imprimatur,  any answer the Constitution might give to the historically divisive question of its own authority vis-à-vis the member states  is likely to stray into politically sensitive territory, it is notable  that the answer it does in fact  provide   manages to be neither dogmatic nor  deeply controversial, but nevertheless  to set certain clear boundaries  within which the authority of the EU as a political community  may henceforth be negotiated. Notoriously, and following the logic of our earlier discussion of the five orders of constitutional pluralism, the lack even of basically agreed  outer limits to the authority question in the past has meant that  EU politics frequently threatens to become  a kind of meta-politics, with questions of policy programme and other lower order constitutional questions  entangled with and sometimes  hostage to unresolved questions about overall polity authority. In this regard, the Constitutional Treaty  represents a cautious step forward. On the one hand, the "primacy" principle in  Art. I-10 of the DCT which confirms the priority of EU law over national law within the proper domain of the former, may over time silence arguments that the EU can still plausibly be construed as no more than a massive  delegation of state authority. On the other hand,  the principle of "conferral" in Art. I-9 which acknowledges firm textual limits to the proper domain of EU law, together with the affirmation of Union respect for national identities and essential state functions in Art. I-5, may gradually dispel fears and quieten debate about whether the Union’s impetus is in the direction of  a federal state. Of course, there remain a vast array of options in the continuum of  forms of specification of and relations between the respective domains of authority of the states and the EU   between the two poles of  intergovernmental delegation and federal superstate, but at least in ruling out these two extreme positions the new settlement seeks to overcome an unhelpful dichotomy with a destabilising heritage. In the future, debate on the relational principle on which the EU is and should be founded will doubtless remain fierce. However, the new constitutional settlement may  provide a framework within which it can at least be recognised as a common debate with manageable boundaries and with polar options excluded - thus  providing a safety-net encouraging the participation of those who might otherwise refuse engagement so as to avoid recognising and dignifying  positions in polar opposition to their own - rather than leaving  a deep  fault-line which undermines the very ground on which  debate might take place.

(b)	The motivational problem  and the community dimension

For all that the constitutional text might provide a minimally stabilising frame and set of margins  for approaching the problem of authority,  any of the more particular candidate answers to  emerge within these established margins will lack effective mobilisation, widespread endorsement or practical vindication without the motivational support of a wider constituency which begins to understand itself as a political community. In what ways, then, if at all, can the constitution help to supply this motivational thrust, and thus address the second dimension of the paradox of  the polity? 
That question requires us to address the significance of the  Convention and, indeed, of the present constitutional phase as a whole,  as a process - as a sociological means by which the very notion of a political community may be constructed or transformed.. For some commentators, perhaps Habermas most notably in the context of the EU, this prospect may be viewed as a "self-fulfilling" prophecy to confound the constitutional sceptic, to suggest a degree of constitutional potential of the whole beyond the processualist’s preoccupation with the parts or the serialist’s pragmatic concentration on the virtues of iterative institutional reform, and to challenge the historical-contextualist's and finalist’s assumption that the benefits of the gradually evolved constitutional heritage outweigh those of a more fundamental renewal. The Habermasian gambit, or, to put it in more general terms, the constructivist gambit, is to the effect that to the extent that the European demos remains underdeveloped - a possibility that must be taken seriously by anyone who is concerned with whether the EU has sufficient collective political resources (in terms of mutual trust, common engagement and a general readiness to put things in common as well as legal-institutional capacity) to establish the social foundations for  the framework of  collective authority necessary to overcome the problems of collective action it confronts and to achieve the kinds of political objectives which its various overlapping coalitions of public support might want it to achieve, whatever these objectives might be - then the  Constitution-making act itself may act as a catalyst for its deepening and strengthening.
It is  tempting to dismiss the constructivist gambit on either or both of two grounds; first, as being implicitly tied to a  particular and partial  teleology of integration, and secondly, as  displaying a foundational naivety – as being in thrall  to an unrealistic conception of the mobilising potential of a text. The first criticism  may be dealt with briefly. It can be objected, recalling the critique of the strategy of projection in the previous section,  that only those with a strong conception of European integration, one, indeed, that tends towards the idea of a entity with rules and resources  akin to those of the social democratic state, have an interest in pursuing the constructivist solution. Certainly, it is undeniable that there is some correlation between the constructivist approach and a political vision of a Europe capable  of putting redistributive as well as other regulatory questions in common, with Habermas himself as one prominent instance. However, the connection is a contingent rather than either a necessary or a exclusive one. The social democratic vision, can lead in more Eurosceptic directions, as testified by the long history of the Left’s ambivalence towards supranationalism – as likely to be vilified as the destroyer of the social protection systems of the European welfare state as hailed as its potential saviour. Further, as I have argued throughout the article,  any perspective on integration, however modest or ambitious,  which is concerned with the elusive question of the legitimate ties and domains of political community on the basis of which Europe may justify and motivate its present or future claim to put things in common should be interested in the higher-order mechanisms that address the EU’s ongoing legitimacy deficit in that regard. What is more, regardless of the political agenda which may be brought to the task of constitutional constructivism, the very dynamics of that constructivist process, as we shall see, ensure that it escapes the control of any particular faction. To make this point, however, we must turn to the second objection, namely that of foundational naivety.
Does the idea of the constitution as a  catalytic event not involve making false assumptions, both about the original  influence of constitution-making generally   as a matter of sociological significance, and about  the particular priority of the so-called EU constitution in polity-building  as a matter of specific historical causation in the here-and-now?  Arguably, the constructivist case need not involve foundation assumptions in either of these senses. Let us revert to and extrapolate from Habermas to make this argument. In his own conception of how constitution-making contributes to European political community Habermas is decidedly not a foundationalist. Rather, he locates the well-springs of European political community in the circular development of three features - a transnational civil society, a European  public sphere of cultural and political debate in which a discursive context is found  for discussions and proposals to be fed into the formal political process, and a common political culture which provides some kind  of  shared normative frame of reference. The strength of this thesis is precisely not in its foundationalism, but in its depiction of a symbiosis between all three elements, with none having any necessary priority, and each depending upon the development of the other for its own strengthening. Law in general and the constitutional-law making process in particular is not located within this circular process, but nor is it treated as foundational of it. Rather, its catalytic potential lies in is capacity to connect with each of the three elements simultaneously. So, on this view,  the constitution-making process itself, and in particular the more outward-involving and inclusive  activities of the Convention, should have   encouraged the mobilisation of civil society groups in terms of interests and aspirations which transcended national boundaries. The publicity and debate generated by the Convention process, and in particular the simultaneous and interlinked discussion of this event in various national media and associational contexts, however muted, should have promised some stimulus to the development of a European public sphere. Finally the debate over values in the  Convention, which finds its textual expression in the preamble and, in particular in Arts I-2, I-3, I-4 and I-7, should assume importance not so much as a means of guiding the polity towards certain substantive and pre-given ends, still less as a set of justiciable principles,  but as a way of grounding and generating deliberation about what a common public culture might mean on a European scale and so helping in the creation of that very sense of a common public culture. On this view, in response to the prompts of the self-conscious constitutional debate,  the circular process of mutual reinforcement of  civil society, public sphere and common culture should gradually take over, develop its own separate momentum,  and so escape and transcend  the  deliberative confines of the original constitutional phase.
Historically, too, the constitutional moment works not in splendid originalist isolation, but in a complex series of refractions backwards and forwards within  a dynamically conceived framework of constitutional tradition. Looking backwards, the first EU Constitution is not of course the first Constitution, but gains much of its initial  resonance from the cumulative symbolic resonance of constitutionalism generally (thus the  insistence upon and preoccupation with the Philadelphian imagery in the pronouncements of the Convention’s chairman Giscard D’Estaing, amongst others)  and from the common ground which may be found between specific member state constitutional traditions in particular. Looking forward, the Constitutional Treaty may be seen as the self-conscious forging  of a new branch of the constitutional tradition, and so as providing  a resilient  reference point of mobilisation of public and political argument about the meaning and significance of the European polity. That is to say, the symbolic value of the constitutional process does not expire with the process itself, but continues to provide a historical resource for the very discursive process which it has generated.
Of course, the fact that a  European constitutional event might engage the circuit of community mobilisation and might have the kind of deep and lingering  historical resonance sketched above does not mean that the particular constitutional phase with which we are concerned - the Convention, the Constitutional Treaty and its subsequent process of intergovernmental confirmation and national ratification - will  have that kind of catalytic effect. In the first place, arguably  the moment has simply failed to engage and to mobilise sufficiently to have the kind of impact that Habermas and the constructivists would have wished. Ironically, to the extent that this may be true, it hints at a  number of self-fulfilling prophecies other than the one Habermas would endorse. The very diversity of the polity-oriented perspectives  outlined earlier  has had a serious impact on the constitutional process itself, in turn threatening to compromise the possible range of significations of the Constitutional event. The hostility or  indifference to the constitutional legacy  of the sceptics and the materialists   contributed their particular types of limiting effect. And even though they were more favourably disposed toward the Convention and in many ways its leading influences, the historical-contextualists and the finalists  also contributed significantly to circumscribing its possibilities. The priority of form over content and the preference for vindicating past achievement and realising immanent possibilities over the development  a more open long-term vision implicit in these overlapping brands of conservative incrementalism was  the key to the setting of a disciplined timetable of text production in a Convention whose original terms of reference had committed it to no such definitive text, and this discipline clearly limited the breadth of participation and range of discussion deemed possible and appropriate. 
Secondly, and relatedly, in a historical perspective perhaps the moment was simply unripe for such an audacious experiment. Perhaps the objective conditions for a constitutional event to have the kind of catalysing effect contemplated by the constructivists were not realised, with the strong presence of the more sceptical, pragmatic  and cautious  attitudes at the constitutional table one manifestation of this. On such a view, regardless of the theoretical merits of the constructivist techniques of prompting the circulatory process of community mobilisation, actual conditions have simply militated against the successful operation of such a dynamic.
 Thirdly, it may be argued that there is in any case a kind of performative contradiction implicit in the idea of the Constitutional Treaty as a catalyst towards a more fully mobilised political community. According to this view, if the procedural imperative implicit in the idea of the Constitutional Treaty as a community-mobilising event is that of active participation of those affected by its remit, then it is vital that not only the form of the event itself but also the content of its textual product should advance the idea of participatory democracy. And if that is the test, then although the Treaty makes some gestures towards "enhancing the democratic life of the Union," overall it may have done little to disturb the status quo ante and correct the various dimensions of the  long acknowledged  'democratic deficit' of the institutional design of the Union. 
These are powerful objections. They certainly explain why the emerging constitution  in its own time and place appears to be  an “unsung” achievement, one  that hardly begins to probe the various mutually exclusive closures impeding higher-order debate and that, partly on account of this higher-order impasse,  can provide  no more than the latest tentative and essentially conservative compromise at the lower-order institutional level. It may be viewed, in other words, as a Constitution which failed to engage many grand expectations in the first place, and which is destined to disappoint whatever grand expectations it did raise.
 Yet the objections raised, and the low-key reception invoked as proof of the validity of these objections, need by no means be decisive against the  case for transformative momentum. For in the final analysis, the constructivist gambit rests on a deep conviction that the meaning of the constitutional moment need not be fatally compromised by the conditions of its origin. If we take seriously the idea that the present constitutional phase involves the invention of a new tradition as much as a continuation of  the old, and that, for all the diversity of polity-oriented strategies brought to the constitutional table the potential (and potentially resilient) "performative meaning" of their representatives at least having been prepared to sit  at that table together is that of a people founding a voluntary association of free and equal citizens committed to self-government - however partial and however complemented by other more traditional forms of self-government,  then the force of the contemporary objections that the motivations were too mixed, that the time was not ripe, and that the Convention lacked the courage of its democratic form or convictions,  is reduced. Instead, the test of its long-term credentials lies in the capacity of the common performative meaning implicit in the constitutional moment to provide a lasting focus - a historical anchoring - for the efforts of "later generations [to] critically appropriate the constitutional mission and its history" – to understand and vindicate their “felt need” to engage in a common polity through the prism of a historical record and progression of such a felt need. The founding conditions are clearly not irrelevant to the prospects of future generations making the kind of confident shared investment in the  performative meaning of the original act for this kind of process of self-reflection to unfold, nor to the likelihood of such a process being a broadly inclusive or consensual one, and in this regard the ratification debate to come between 2004 and 2006 may be as important for its quality and quantity of engagement as for its final result. Yet  these founding conditions  surely do not rule out such a long-term prospect in advance either.  
	So, by way of conclusion, we may  re-iterate that the idea of the present constitutional phase as a community-mobilising moment which may hold the key to  the epistemic and the motivational problems of the EU polity – to both the nature and limits of political authority and the bonding of political community – and so to the paradox of the post-state constitutional polity, remains a long-term gambit. It might for some considerable time after the event, even if the process of national ratification is successful, simply be too early to predict its direction or assess its prospects for success. Yet it is precisely because it retains the potential to be more than a naked  reflection of the diversity  round the Convention and IGC  tables, or an inventory of whatever modest degree of  common ground was discovered  during their deliberations, that we should not easily  dismiss the Constitution and all its works as  a fleeting moment of  change rather than as a momentum-building event in the search for polity legitimacy.