4 The European Union as ‘Militant Democracy’?

In response to the coronavirus outbreak in Europe, the prime minister of Hungary, Viktor Orbán, declared a state of exception without any time limitation, raising the question of whether the European Union (EU) now has a dictatorship in its midst.¹ This state of exception, not withstanding its extremity, is not an altogether new development but rather a result of the turn to authoritarianism that has characterized Hungary’s (and Poland’s) recent past. In the past decade both Hungary and Poland have undergone constitutional transformations²—formal or informal³—of such extent that the scholarly consensus is now that these regimes are no longer compatible with the ‘constitutional values’ of the EU that the member states are presumed to share,⁴ and that is the foundation of their mutual trust.⁵

The overwhelming response from legal and political academia alike has been to call for an intervention from the EU, in one form or another. The EU Treaties allow for the Union to sanction a member state that is persistently breaching the constitutional values of the Union as defined by Article 2 of the Treaty on European Union (TEU). Most importantly, the recalcitrant member state can have certain Treaty rights suspended, including its political representation in the Council.⁶ Moreover, many different approaches within the current ‘toolbox’ of the EU have been suggested, ranging from social pressures and shaming,⁷ recommendations via the Commission’s ‘rule of law framework’,⁸ and systematic infringement actions⁹ to the protection of fundamental rights by national courts acting in their capacity as European courts. Attempts have been made to tie the EU Covid-19 Recovery and Resilience Facility and the EU budget to rule of law conditionality; however, as of yet they have had no success.¹⁰

It is, however, by no means clear that the ‘tools’ currently available to the EU can deal effectively with the situation in Poland and Hungary. The Article 7 procedure is seen as ineffective for at least two reasons: first, because of the impossibly high threshold for the ‘sanctioning arm’ (unanimity minus the recalcitrant member state);¹¹ second, even if this obstacle could be overcome, withholding rights does not amount to an actual intervention that would remedy the situation—the EU might end up with a de facto authoritarian dependency rather than an authoritarian member state. Neither has the Union yet been capable of sanctioning Poland and Hungary with any of the other ‘tools’ available to it. The limitations of using the infringement procedure are neatly illustrated by the fact that the European Court of Justice (ECJ) could only deal with Orbán’s court-packing as a matter of age discrimination.¹² The ineffectiveness of this approach is highlighted by the fact that the judgment did not reinstate the Hungarian judges. Proposals such as ‘reverse Solange’¹³ and other schemes that rely on member state courts have the obvious weakness that the turn towards authoritarianism in Poland and Hungary has undermined the independence of the judiciary.

Several scholars are therefore calling for more drastic measures—some of them beyond the current framework—ranging from financial sanctions,¹⁴ such as withholding EU structural funds, to expulsion.¹⁵ Jan-Werner Müller has been one of the most vocal scholars in this debate, calling upon the EU to act as a constitutional guardian of liberal democracy, not merely for the Union but also for the member states.¹⁶ Müller’s argument, in a nutshell, is that for the member states, one of the most important reasons for the creation as well as their joining of the EU was to protect themselves against constitutional developments such as those in Hungary. The Union’s raison d’être is to make sure that the experience of fascism and authoritarianism—the ‘dark side’ of democracy—does not repeat itself. The EU, as it were, adds to the domestic constitutions a further layer of constitutional guarantee of ‘substantive democracy’ and ‘value order constitutionalism’.¹⁷ Following this argument, the Union has not merely a right but also a duty to intervene in order to ‘save member states from themselves’.

Though widely discussed, Müller’s argument regarding the post-Second World War era as heralding a new chapter of ‘constrained’ or ‘militant’ democracy still needs to be fully incorporated into the constitutional scholarship on European integration. The project of European integration and post-Second World War development of a new form of ‘value order’ constitutionalism at the domestic level are often treated as two parallel endeavours rather than as inherently connected. This chapter suggests that these two projects are constitutive elements of a broader constitutional project of ‘post-fascist constitutionalism’ (section II). As such, it lends credibility to Müller’s analysis that the EU is part of the project of ‘constrained democracy’.

Nevertheless, this chapter asks whether the tale of ‘post-fascist constitutionalism’ is a particularly German story; or, at least, whether it applies equally to all the member states. The article suggests that, together with ‘post-fascist constitutionalism’, the member states of the EU are characterized by (at least) two additional ‘varieties of constitutionalism’: ‘evolutionary constitutionalism’ (section III) and ‘post-communist constitutionalism’ (section IV). These varieties of constitutionalism are not characterized by a foundational ‘fear of the people’ or ‘constrained democracy’. For that reason, they do not look to the EU as a guarantor of democracy at the domestic level. The argument of the EU as a ‘transnational militant democracy’¹⁸ is therefore less convincing for the member states that are not influenced by post-fascist constitutionalism.

With the end of the Second World War, a new form of constitutionalism was born. In contrast to the constitutional project of the republican revolutions that sought to harness the power of the people and create a stable system of checks and balances, the post-Second World War constitutional project was founded on a fear of the people and concerned with permanently constraining or even destroying the potential for the exercise of political power. Alexander Somek has described it as a new ‘stage’ in the constitutional imagination, ‘constitutionalism 2.0’,¹⁹ and Christoph Möllers captures it in his phrase ‘We (are afraid of) the people’.²⁰ I suggest the label ‘post-fascist constitutionalism’ for this form of constitutionalism, but the prefixes ‘anti-totalitarian’ or even ‘anti-revolutionary’ would also be fitting. Jan-Werner Müller describes this project as ‘militant democracy’²¹ or ‘constrained democracy’.²²

This constitutional project was shaped by a specific interpretation of the origins of the inter-war breakdown and the Second World War as the ‘excess’ of democracy, or what José Ortega y Gasset called ‘hyperdemocracy’.²³ Within this constitutional project, the aim of the constitutional order is to make sure that the people does not commit ‘democratic suicide’ by electing to power an anti-constitutional party that will use the rules of constitutional democracy to introduce an anti-democratic constitutional order via ‘unconstitutional constitutional amendments’.²⁴ Democracy has to be disciplined, the argument goes, otherwise its dark side, ‘totalitarianism’, will prevail, either in its left-wing or its right-wing incarnation: Communism or fascism. This merging of fascism and Communism into a unitary political phenomenon is part of a broader movement of ‘anti-totalitarian constitutionalism’²⁵ that came to influence both European and American post-Second World War constitutionalism.²⁶

The aim of this constitutional project became not so much to stabilize political power as to permanently constrain or even repress it. In contrast to revolutionary constitutionalism, in which every generation should have its own revolution, this constitutional project aims to eliminate what it sees as ‘extra-constitutional’ manifestations of power.²⁷ The German Basic Law took this a step further with the introduction of an ‘eternity clause’ that made some aspects of the constitution unamendable—importantly, the core constitutional value of the new order that gives everything else its meaning: human dignity.²⁸ The constitution is understood as an order of values that have to be balanced against one another.²⁹ Democracy is merely one ‘value’ among others. Moreover, the political power of the people was ‘disciplined’ by empowering the constitutional court, by strengthening the judiciary vis-à-vis the executive and the legislature, and by banning ‘anti-constitutional’ political parties (mostly former fascist ruling parties or collaborating parties, but also a few communist parties). Without constant vigilance, Dr Jekyll (democracy) will turn into Mr Hyde (fascism or Communism).

This story is hardly new. It has been told, and told well, by constitutional scholars such as Alexander Somek and Christoph Möllers.³⁰ However, the role of European integration in the emergence of this post-Second World War constitutional project is often left out, or, in Somek’s account, portrayed as a later ‘stage’ of ‘cosmopolitan constitutionalism’.³¹ What is sometimes ignored by constitutional scholars is that, from the very beginning, the post-Second World War constitutional project was not merely concerned with the creation of a new form of constitutionalism at the domestic level. Equally important was the creation of a constitution for Europe, a new European order that was no longer built on the principle of a balance of powers between the European empires.³² A key insight from Contesting Democracy, despite the fact that Müller only refers to it in passing, is the interpretation of the rise of a new form of constitutionalism at the domestic level together with the project of European integration as part of the same post-Second World War project of reconstituting Europe.³³ The post-war reconstitution of Europe has to be understood as constitution-building at both the domestic and the European level.³⁴

The view of the post-Second World War constitutional project was that democracy’s enemy—‘totalitarianism’—could only be conquered through the creation of a strong union between the former enemies on the European continent. For the European Christian Democrats,³⁵ but perhaps to an even greater extent for the Americans, the creation of a federation in Europe came to be understood as legal and political protection against the totalitarian subversion of democracy.³⁶ The fear in the post-Second World War era was not merely, or even primarily, directed at the return of Nazism in Germany or German aggression; it also took in the ‘communist threat’ both from without and within.³⁷

The overall aim of the project of European integration was to stabilize and constrain the post-Second World War regimes to ward off any form of political extremism on either the right or the left.³⁸ European integration had to provide the material conditions that would allow Western Europe to provide its people with a living standard that could outcompete the promises of material well-being made by the USSR.³⁹ Moreover, until the collapse of the project of the European Defence Community, or arguably until the collapse of the negotiations around the Fouchet Plans, a defence union among the central European states was understood as a means to protect Western Europe from any kind of Soviet aggression.⁴⁰ Finally, Europe became the ‘Sorelian myth’⁴¹ for the post-Second World War era in the eyes of Europe’s ‘founding fathers’. ‘Europe’ had to fill the void left after the experience of totalitarianism; it heralded a ‘spiritual renewal’ for a new generation of Europeans that would transcend the world of the nation-state.⁴²

The centrality of the creation of a new form of legal order beyond the state is manifest in the constitutional provisions of several ‘core’ European states, which allow for the limitation of public authority in order to establish a new form of international order.⁴³ The most striking provisions are found in the preamble to the German Basic Law, stating that ‘the German people, in the exercise of their constituent power’ constitute the Federal Republic on the basis of their ‘determination to promote world peace as an equal partner in a united Europe’.⁴⁴ A united Europe is one of the core aims of the German Basic Law; or, in the words of the German Constitutional Court, ‘the Basic Law calls for European integration’.⁴⁵ The Treaty of Rome, as argued by John Erik Fossum and Agustín José Menéndez, is made with ‘implicit reference to the six national constitutions of the founding member states’.⁴⁶

Nevertheless, within EU law scholarship, the inherent connection between the emergence of a new form of constitutionalism at the domestic level and the project of uniting Europe is often ignored. Perhaps because of the failure of Europe’s ‘first constitution’,⁴⁷ the European Political Community, and the European Defence Community, the story told by EU lawyers often begins, almost ex nihilo, with the ‘constitutionalization’ of EU law through the case law of the ECJ starting in the 1960s (‘integration through law’).⁴⁸ The political origins of the project of European integration are not discussed to any significant degree. EU law and European integration has overwhelmingly been interpreted as a form of ‘freestanding constitutionalism’ committed to market integration and universal cosmopolitan values.⁴⁹ For that reason, the roots of European integration in a particular ‘anti-totalitarian’ constitutional project (encompassing fascism as well as Communism) are not fully appreciated in EU legal scholarship.⁵⁰ That European integration and the domestic constitutional regimes that emerged in Western Europe have to be understood as part of the same broad constitutional project—what this article calls ‘post-fascist constitutionalism’—is therefore not yet fully incorporated into legal academia.

The interpretation of the project of a European constitution, together with the rise of a new form of constitutionalism at member state level, as two aspects of the same ‘post-fascist’ or ‘anti-totalitarian’ constitutional project lends support to Müller’s thesis of the EU as an extra layer of constitutional guarantee. Nevertheless, the question is whether, or to what extent, this is a particularly German story.⁵¹ What is left out of the account so far is that not all member states of the EU are of the ‘post-fascist’ type. Müller admits as much in that he argues for a kind of ‘British exceptionalism’.⁵² The question, however, is whether there are many more exceptions than those for which Müller allows. In what follows I will propose two other ideal-types of constitutionalism that influence the EU member states, neither of which are characterized by a foundational fear of the people: ‘evolutionary constitutionalism’ and ‘post-communist constitutionalism’.

The EU member states are characterized by different ‘varieties of constitutionalism’ and for that reason they do not relate to the project of European integration in the same way.⁵³ Whereas it might be possible to create a ‘constitutional synthesis’ between the constitutional orders of the Union and the member states within post-fascist constitutionalism by imagining the EU as an additional layer of constitutional guarantee, this is not the case within either ‘evolutionary constitutionalism’ or ‘post-communist constitutionalism’. For that reason, the post-war constitutional settlement, compromising the Union and the member states, is characterized by different sorts of tension and contradiction depending on what type of constitutionalism is dominant in a member state—or so it will be argued.

For the post-fascist constitutional imagination the end of the Second World War is the watershed moment, the ‘zero hour’ (Stunde Null). It is this rupture in time that allows for a new constitutional imagination to be born, a new way of thinking about the constitution of public authority. Not all of the EU’s member states experienced the end of the Second World War as such a ‘new beginning’, however. The UK is an obvious example, but it is not the only one. The Scandinavian member states, Sweden and Denmark, had not experienced total legal and political collapse either and the Second World War did not lead to a new form of constitutionalism in these countries.⁵⁴ This does not mean that the war is not a significant event for these countries, merely that it is not interpreted in the same way as it is by the ‘constrained democracies’. Because of the lack of a constitutional rupture, the constitution was interpreted as an unbroken tradition and democracy was understood, as it was in the pre-Second World War era, in terms of the sovereign will of the state expressed via Crown-in-Parliament. The UK and the Scandinavian member states belong to a form of ‘evolutionary constitutionalism’. They all understand themselves as exceptions to what happened in the rest of Europe (and, for that reason, as democratically superior to their neighbours).

The UK, Sweden, and Denmark had very different experiences during the Second World War. But for different reasons, none of them experienced the complete legal and political collapse on which the post-fascist constitutional imagination is founded. The UK came out of the Second World War as the proud saviour of Europe, with its dreams of imperial glory not yet lost. Sweden remained neutral and politically stable, untouched by fascism as an ideology, and under the leadership of the same social democrat, Per Albin Hansson, before, during, and after the Second World War. Known by German soldiers as the ‘cream front’ (Sahnefront), Denmark was not severely affected despite its occupation by Nazi Germany. Denmark became a German ‘model protectorate’ and was allowed to retain control of external and internal affairs, at least until 1943.⁵⁵ Throughout most of the war, Danish institutions functioned more or less normally, and relatively few Danes died as a consequence of the war.⁵⁶ Crucially, the Second World War did not subvert Danish civil society, and after the War the Danes prided themselves on the efforts of ‘ordinary people’, importantly fishermen, who helped to clandestinely ferry the Danish Jews to Sweden.⁵⁷ Democracy had conquered rather than caused fascism: that was the lesson drawn. The story told after the Second World War in Sweden and Denmark was therefore never that of the ‘excess’ of democracy; quite the contrary.⁵⁸

At the heart of the constitutional imagination of the ‘evolutionary’ democracies is the idea that the sovereign will of the state is expressed via Crown-in-Parliament. Nothing stands above or beside Parliament. It should be noted that from a historical perspective, there is nothing inherently ‘democratic’ about this. Parliamentary government has not always been on the side of ‘the people’ (whether that is understood as the many, the masses, or the poor).⁵⁹ Nevertheless, with the expansion of the franchise to gradually include women, the poor, and the young, parliamentary government came to be understood as the authentic expression of democracy. Gradually the view became that the people expressed their sovereign will via Parliament.

This view persists within evolutionary constitutionalism today. Democracy is understood as a procedural framework for decision-making, not a substantive theory for a democratic ‘content’ in the form of fundamental rights or human dignity.⁶⁰ For the Scandinavian legal realists that dominated post-Second World War legal academia in Sweden and Denmark, the conservatism, natural law philosophy, and human rights thinking that influenced the Christian Democrats⁶¹ was understood as an impediment to post-Second World War democracy.⁶² Post-Second World War Scandinavia is social democratic rather than Christian democratic, and for the Scandinavian social democrats strong individual rights are seen as obstacles to democracy conceived of as majority rule.⁶³ The social democratic interpretation of the inter-war breakdown does not understand the underlying cause to be the ‘excess of democracy’ but rather the ‘excess of the market’ leading to economic inequality. Democracy should therefore not be constrained but rather protected via social and economic policies that, as a minimum, could limit the impact of economic crises.⁶⁴

Social democracy as well as legal realism is based on a belief in the ‘primacy of politics’⁶⁵ over law, and for that reason there is no call for a constitutional court to monitor democracy.⁶⁶ In the words of the Swedish legal realist Vilhelm Lundstedt, the idea that the power of the state could be checked by universal and natural rights ‘beyond’ the political, such as property, was as ‘meaningless as the chatter of a parrot’.⁶⁷ Parliament is essentially understood as its own guardian. The idea of judicial review is not a part of evolutionary constitutionalism and is generally understood as a problematic ‘political’ exercise of power by the judiciary. As the Danish legal realist Alf Ross puts it, the judiciary is ‘by its very nature’ subject to the will of Parliament.⁶⁸ The constitution is interpreted not primarily by the courts but by parliamentary praxis.⁶⁹

Evolutionary constitutionalism is not shaped by a revolutionary event but has rather evolved over centuries by insiders giving strategic concessions to outsiders in order to avoid revolutionary upheavals.⁷⁰ With its uncodified constitution, which has evolved with political events over centuries, the UK is the paradigmatic example. However, both the Danish and Swedish constitutions developed along similar trajectories. The Danish Constitution (Danmarks Riges Grundlov) of 1849, still in place in a revised form, was, for example, a concession of the King pre-empting a violent uprising, and as a consequence of that the Danish ‘revolution’⁷¹ of 1848 was bloodless. There is no clear revolutionary event in which a modern constitution was introduced in Sweden either. In its current form, the Swedish Constitution, Sveriges Grundlagar, is composed of four ‘fundamental laws’: the Instrument of Government (Regeringsformen) of 1974; the Freedom of the Press Act (Tryckfrihetsförordningen) of 1949; the Fundamental Law on Freedom of Expression (Yttrandefrihetsgrundlagen) of 1991; and the ‘Act of Succession’ (Successionsordningen) of 1810, 1812.

Denmark and Sweden, in contrast to the UK, have codified constitutions in the form of ‘fundamental laws’ or ‘basic laws’ (Grundlov/Grundlagar). Nevertheless, these legal texts have been relatively unimportant for the political development of the Scandinavian member states.⁷² Within the evolutionary constitutional imagination, the ‘real’ or ‘positive constitution’ of the state is not identical to the written constitution.⁷³ The ‘real’ constitution of the state is understood as a political rather than a legal creature, which evolves with political and societal developments and constitutional conventions.⁷⁴ It is a ‘living being’ that is slowly transformed without the written constitution necessarily changing. With regard to the United Kingdom, Walter Bagehot famously argued that the British monarchical constitution had been transformed into a ‘disguised republic’.⁷⁵ Within evolutionary constitutionalism, the constitution can be fundamentally transformed without a single constitutional law necessarily being repealed or amended.

In contrast to both post-fascist and revolutionary constitutionalism, the formal written constitution is not necessarily a means of introducing a new system of government. The Swedish Instrument of Government of 1974 was seen not so much as the introduction of a new system of government but more as a codification of the constitutional praxis that evolved without any formal change to the constitution.⁷⁶ The schism between the formal written constitution and the real constitution had become so great that is was deemed necessary to ‘modernize’ the constitution, and the period between 1922 and 1974 is now known as the ‘constitution-less’ period.⁷⁷ The constitutional amendment was in this sense an attempt to close the gap between the formal and the real constitutions of Sweden, rather than a revolutionary event starting a new era.

In the United Kingdom there have been calls for a constitutional modernization in the form of a written constitution since the end of the Second World War, and since the 1970s the need for reform has been understood as even more pressing.⁷⁸ However, this has not come about—at least not in the form of the drafting and ratification of a formal written British constitution. Nevertheless, through its membership of the EU, Britain has undergone a process of profound constitutional transformation. Without any ‘revolutionary’ event, the UK has undergone an incremental modernization over the four decades of its membership in the EU and, in this way, it has developed something akin to a ‘written’ constitution.⁷⁹ Membership of the EU has led to the introduction of a system of judicial review, a fundamental distinction between ordinary legislation and ‘constitutional statutes’, the adoption of something akin to a Bill of Rights, and the introduction of a Supreme Court. Moreover, it has created the foundations for both the devolution of governmental powers from Westminster to the devolved parliaments and assemblies in Scotland, Wales, and Northern Ireland and the cross-border arrangement between Northern Ireland and the Republic of Ireland.⁸⁰ EU membership, in the words of the European Union Select Committee of the House of Lords, ‘has been, in effect, part of the glue holding the United Kingdom together since 1997’.⁸¹

European integration has been a way for British elites to solve the impending crisis and ‘conceptual sclerosis’ of the British constitution without any significant involvement of the public and without any revolutionary event.⁸² This process of ‘modernization’, however, cannot easily be reconciled with the constitutional ideology of evolutionary constitutionalism, namely parliamentary sovereignty. Being an EU member state means governing oneself as a ‘constrained democracy’. It means that, at least for the duration of membership, there is something above Parliament, namely EU law. European integration, somewhat paradoxically, has allowed for the perpetuation of ‘insider constitutionalism’ in the UK, and for that reason it has indirectly allowed for the perpetuation of a constitutional project whose core ideology, the sovereignty of Parliament, cannot easily be reconciled with EU law. The irony of Brexit, in this light, is that the rallying cry of ‘take back control’ by restoring the sovereignty of Parliament has resulted in a weakening of the foundations of the UK’s current constitutional settlement and thereby put the ideology of Parliamentary sovereignty under new strains. The question of the UK’s territorial constitution after Brexit, and in particular the place of Scotland and Northern Ireland in the Union, might be what finally leads to the end of the ‘shibboleth’ of Parliamentary sovereignty in the UK.

The ‘evolutionary democracies’ of the UK and Scandinavia have a radically different constitutional relationship to the project of European integration than the post-fascist member states. Yet EU law is no less central to the constitutional systems in these countries. Rather, European integration has stabilized these regimes via a process of modernization. They are, however, not the only exception to the post-Second World War constitutional project of constrained democracy.

The constitutional projects and regimes of the former communist Central and Eastern European member states do not belong to the project of post-fascist constitutionalism and constrained democracy, despite the fact that they share many of its characteristics. Like post-fascist constitutionalism and unlike evolutionary constitutionalism, post-communist constitutionalism is founded on a rupture in time, a ‘new beginning’. The fall of the Berlin Wall marks the symbolic end of post-war history and the end of the ‘short twentieth century’.⁸³ Moreover, the idea of Europe is central to the post-communist constitutional project. Post-communist constitutionalism has an internal and intimate relationship to the project of European integration, but it has unique features that warrant its treatment as a separate form of constitutionalism. As is the case for the evolutionary democracies, the post-communist member states’ constitutional relationship to the project of European integration is rife with tensions and contradictions.

From the very beginning, becoming part of ‘Europe’ was central to the constitutional project of the former communist states in Eastern Europe. The central political banner under which the transition to democracy was conducted was the idea of the ‘return to Europe’. A central aspect of this ‘return’ was membership in the European Convention on Human Rights (ECtHR) and the EU.⁸⁴ ‘Europe’ came to symbolize the end of authoritarianism, or even totalitarianism, and the pathway to democracy and human rights. As is the case for the post-fascist member states, and in sharp contrast to the evolutionary democracies, ‘Europe’ is one of the most important ‘constitutional myths’ for post-communist constitutionalism.

Nevertheless, for the post-communist member states, the EU is not part of a project of ‘constrained’ or ‘militant democracy’. The EU is not seen as an extra layer of counter-majoritarian institutions created in order to combat ‘hyperdemocracy’. The Central and Eastern European member states did not draw the same lesson from their experience of authoritarianism as the post-fascist states had done. Authoritarianism and totalitarianism were not understood as a product of an ‘excess of democracy’ leading to the collapse of the legal and political order. Rather, Nazism and later Communism were perceived as something imposed by a foreign imperial power. Irrespective of the historical realities, Communism and the communists are ‘them,’ not ‘us’. Post-communist constitutionalism is not founded on a ‘fear of the people’. Rather, post-communist constitutionalism is founded on a tale of victimhood.⁸⁵

Nor is European integration understood as way to combat nationalism and the inherent problems of the nation-state and sovereign power, as it is within post-fascist constitutionalism. On the contrary, for the post-communist member states, the ‘return to Europe’ entails the promise of creating sovereign nation-states in Eastern Europe. Becoming part of Europe was understood as a way of restoring the pre-communist regimes and traditions. The transitions to democracy of 1989 were described as acts of restoration or ‘rectifying revolutions’.⁸⁶ It was like turning back the clock to the glorious time before the Soviet and Nazi invasions, erasing all traces of foreign occupation. The ‘East’ had been ‘abducted’;⁸⁷ now it could return to its ‘native Europe’.⁸⁸ Becoming a part of the EU and the ECHR was in this way a part of the project of reconstituting sovereign nation-states in Central and Eastern Europe.

From a historical perspective, the tale of a ‘restoration’ or ‘return’ to the regimes and traditions of pre-communist era nation-states is somewhat dubious. The narrative informing the political discourse of the ‘return to Europe’ belongs to the world of ‘memory’ rather than history; a world structured by myths rather than facts.⁸⁹ What the post-communist member states aspired to return to was not historical reality but rather a world constructed by the myths of ‘national memory’; the continuation of proud histories dating back many centuries that had been abrogated by the invasion of hostile empires, whether Nazi or Communist.

In contrast to the core Western European states of the EU that overwhelmingly were failed or declining empires when they embarked on the project of European integration, several of the Central and Eastern European states that emerged after the fall of Communism had been proper ‘nation-states’ before the Nazi and Communist occupations. That being said, the experience of being ‘nation-states’ in Central and Eastern Europe to which these countries aspired to return was a temporary and fragile one.⁹⁰ This period of Central and Eastern European nation-states lasted for about two decades: from the collapse of the European land-empires after the First World War—the Austro-Hungarian empire, the Ottoman Empire, the German Empire, and the Russian Empire—to the annexations of these young nation-states by the imperial powers of the Soviet Union and the Third Reich.⁹¹ In this period, authoritarianism, not constitutional democracy, was the dominant form of government in the Central and Eastern European states. The ‘return to Europe’ as the restoration of a long tradition of nation-states governed as constitutional democracies is historically more or less fictitious. Nevertheless, it is one of the most important myths that informed the reconstitution of Central and Eastern Europe after the fall of Communism.

Within post-communist constitutionalism, democracy is not conceived of as ‘militant democracy’, nor is the EU seen as a constitutional self-binding. During Nazi and Communist rule, ‘the people’, understood as ‘the nation’, had been deprived of sovereignty to the detriment of democracy. The ‘return to Europe’ was thus overwhelmingly understood as a path to a form of regime and an international system that post-fascist constitutionalism, including the project of European integration, aspired to overcome: the system of sovereign nation-states characterized by internal and external self-determination.⁹² For that reason, the Central and Eastern European states, as a rule, constituted themselves as ‘closed’ to the outside world without the constitutional possibility of ceding sovereign power to organizations beyond the state. In order to accede to the EU, they therefore had to amend their constitutions.⁹³

In this way, the constitutional relationship of post-communist constitutionalism to the project of European integration is characterized by a fundamental contradiction. European integration is understood as the all-important means to the realization of the domestic constitutional projects. Yet the constitutional order of the EU contradicts the constitutional projects of post-communist constitutionalism. As long as a member state is part of the EU, something stands above the ‘sovereign nation’, namely, EU law. By acceding to the EU, the former communist satellite states became ‘member states’ rather than fully independent ‘nation-states’.⁹⁴ For that reason, the EU is not merely understood as a path to democracy but also as a threat to democracy within post-communist constitutionalism. The EU, with its demands for supremacy and direct effect of its laws, even against the constitutional norms of the member states, is looked upon with suspicion within post-communist constitutionalism as a potential new form of empire.⁹⁵ For that reason, the EU cannot be conceived of as a form of transnational ‘militant democracy’ within post-communist constitutionalism.

The rise of authoritarianism in Poland and Hungary is the constitutional threat that the EU was created to protect member states from. For that reason, the Union must repress the ‘anti-constitutional behaviour’ in order to save the member states, and the citizens of the Union, from the ‘dark side’ of democracy: authoritarianism, fascism, and totalitarianism, and their inherent tendency towards mass killings.⁹⁶ This is the heart of the argument that the EU is a form of transnational ‘militant democracy’, advanced most consistently by Jan-Werner Müller.⁹⁷ Like Ulysses making his men bind him to the mast while they sailed past the Sirens, so have the member states constrained themselves, not merely via domestic constitutions but equally at a transnational level via European integration, encompassing both the EU and the ECHR. Following this argument, the EU is an additional layer of constitutional guarantee of liberal democracy. The member states looked to the EU in order to entrench a specific constitutional model, to provide themselves with ‘rigid constitutions’. For that reason, the EU has political, if not legal, authority to intervene in Poland and Hungary to save them from themselves.

That the dominant post-Second World War constitutional project in Western Europe encompasses both the domestic constitutional orders and the project of European integration has still not been fully incorporated into constitutional scholarship. This chapter has demonstrated that the dominant post-Second World War constitutional project in Western Europe, ‘post-fascist constitutionalism’, encompasses both the domestic constitutional projects and the project of a ‘European constitution’. Post-fascist constitutionalism is founded on a fear of the people and seeks to constrain political and revolutionary power. As such, this chapter supports the thesis that the EU is a form of transnational militant democracy.

Nevertheless, the chapter also demonstrates that post-fascist constitutionalism is not dominant in all the member states. At least two other forms of constitutionalism influence the EU member states: ‘evolutionary constitutionalism’ and ‘post-communist constitutionalism’, neither of which are founded on a fear of the people or political power. Evolutionary constitutionalism dominates the UK and the Scandinavian member states. Here, democracy is understood in political terms as expressed by the supreme will of Parliament. The constitution is understood is interpreted primarily by political institutions rather than courts. Parliament is its own guardian. For that reason, there is little acceptance of the possibility of transnational institutions claiming supremacy over domestic constitutions in the name of a set of constitutional values. For the Scandinavian social democrats and legal realists that shaped Danish and Swedish post-Second World War constitutionalism, natural law and human rights were understood as impediments to democracy rather than expressions of ‘democratic values’.

Nevertheless, at least for the duration of EU membership, something stands above the will of Parliament, namely, EU law. By being member states in the EU, the evolutionary democracies have undergone a process of constitutional ‘modernization’ that have brought them broadly, but not unproblematically, in line with the core member states of the EU. Through EU membership, judicial review has to a large extent been introduced in these member states together with a Bill of Rights. Via EU membership, the UK and the Scandinavian member states govern themselves as ‘constrained democracies’. Nevertheless, it would be a mistake to think of this as ‘externally imposed’ on the evolutionary democracies. Rather, the constitutional modernization, perhaps especially in the UK, has been a means of solving domestic problems, such as the question of Northern Ireland and the relationship between the devolved nations. EU membership has allowed the UK to introduce a new constitutional order and as such provided a solution to the call for a new British constitution that has been demanded since the 1970s. As is the case for the post-fascist member states, the evolutionary member states have an internal and intimate constitutional relationship to the project of European integration, albeit of a different kind.

The post-communist member states do not belong to the project of post-fascist communist constitutionalism either; nor do they understand the EU as a form of transnational militant democracy., ‘Europe’ plays as important a role for the post-communist member states as it does for the post-fascist member states. The transition to democracy after the fall of Communism was achieved under the banner of the ‘return to Europe’. This meant, simultaneously, membership of European institutions and a return to traditions and constitutional orders that are supposed to have existed before the ‘East’ was kidnapped by the Soviet Union: a system of sovereign nation-states with internal and external self-determination. This project, however, is internally contradictory because membership of the EU is meant to check the ‘excesses’ of national sovereignty, by, for example, fundamental rights, demands for sound public finances, and competition law. In this way, the EU plays an uneasy role within post-communist constitutionalism. It is simultaneously the path to democracy and national self-determination and a threat to democracy by imposing checks on the sovereign will of these states. The post-communist member states did not join the project of European integration to make a ‘Ulysses pact’. In contrast to the post-fascist member states, they are not afraid of their own peoples. For that reason, they cannot understand the EU as an extra layer of constitutional guarantee.

The member states of the EU are not all of the same ‘type’ and for that reason the EU is characterized by a fundamental constitutional heterogeneity and a constitutional asymmetry. Only some of the member states belong to the same post-fascist constitutional project as that of the Union. The constitutional heterogeneity and constitutional asymmetry presents the Union with a fundamental problem of which the recent constitutional developments in Poland and Hungary, extreme as they are, are merely an example.