Europe's Economic Constitution in Crisis and the Emergence of a New Constitutional Constellation

The European Union is in troubled waters. Its original reliance on law as the object and agent of the integration project and on the “economic constitution” which the EMU, as accomplished by the Treaty of Maastricht, were expected to complete have proven to be unsustainable. Following the financial and the sovereign debt crises, the EMU, with its commitments to price stability and monetary politics, is perceived as a failed construction precisely because of its reliance on inflexible rules. The European crisis management seeks to compensate for these failures by means of regulatory machinery which disregards the European order of competences, dis-empowers national institutions, and burdens, in particular, Southern Europe with austerity measures; it establishes pan-European commitments to budgetary discipline and macroeconomic balancing. The ideal of a legal ordering of the European economy is thus abolished, while the economic and social prospects of these efforts seem gloomy and the Union's political legitimacy becomes precarious. The present critical constellation is addressed in a fictitious dispute between Carl Schmitt and Jürgen Habermas, in which a number of Schmittian notions seem alarmingly realistic. The essay pleads for a more modest Europe committing itself to “unity in diversity”, the motto of the ill-fated Constitutional Treaty of 2003