Europe's vexing lack of legitimacy - deficient democracy and over-constitutionalization - and what to do about it

The Foundation Humboldt-University had its bi-annual meeting yesterday and the dinner speech was by Professor Dieter Grimm, a former law school professor and German Supreme Court judge, on just this topic: why the EU has a deeply rooted legitimacy problem. The following is based very loosely on his thoughts, though I've added some of mine + am sure to have omitted some of his. 

First off, while we elect Members of the European Parliament (MEPs), we do so by national election rules and we vote for members of national parties. Hence the elections are essentially national elections by proxy and are reported as such by the media. European issues are barely discussed. This is the first break with typical representative democracy. 

However, once those MEPs hit Brussels/Strasbourg (remember: the parliament moves every few weeks) the national parties they belong to don't actually make European policy. That happens in the parliamentary groups (EPP, S&D, etc.). Generally there's no program/platform before the election - that gets negotiated after. There are over 200 national political parties represented in the European Parliament. So there's your second break for a typical representative democracy. 

But the legitimacy problem goes further. While the EU doesn't have a constitution as such (remember the referendum that failed in France?), what we do have is "constitutionalization" of the EU by European courts. In a first decision in the late 1960s, the European Court of Justice decided that a common market implied the free movement of goods, services, capital, and labour (people, really). In a second decision of the same decade, the court decided (get this) that European law takes precedence over national law in all cases, always. 

And so suddenly all European law that was enacted essentially had the primacy of a constitution: it supersedes national law in all cases. And the subsidiarity principle, to which both the EU and national governments continue to pay lip service, was essentially voided. Let that sink in: anything Europe legislates has constitutional weight for the member states. It's the ultimate assault on national sovereignty. And it's the ultimate silliness from a legal point of view: constitutions should be lightweight, they should be things of principles that are very rarely subject to change. 

The power thus concentrated in Brussel is no longer derived from the sovereignty of the member states, which are represented in the European Council. Nor does the power derive from the sovereign directly, i.e. the people, because of the flaws of European representative democracy. And thus we begin to see the problem of the legitimacy of the EU and its threat to the sovereignty of member states and democracy in Europe as a whole.

The solutions are obvious: create European parties and run European elections on European issues. Implement the subsidiarity principle to de-constitutionalize the body of European law. Give the European Union a proper, thin constitution. And let lower-level problems be addressed by national or regional or local legislation. 

Alas, as in any existing power structure, the existing complexities and incentives seem to work against change. Getting all 27 member states to agree to anything has become a nightmare. There is no interest in creating European parties. Nor is there an interest in making Brussels less powerful. Catch-22. 

In my view it will take nothing less than a revolt of the most powerful member states to significantly alter the European system. Brexit and the Visegrad dynamics are the perfect storm. We need a renewed vision for a strong, united Europe with strong member nations. Alas, there's little indication that this will happen in our lifetimes unless we tear down the EU edifice first. Which is the type of restructuring to the European system that, my father and grandfather do not tire of telling me, has always resulted in war.

P.S. Book by Professor Grimm in German: Europa ja - aber welches?

P.P.S. If you want to be invited to the next afternoon meeting of the Foundation Humboldt-University in Berlin, let me know in the comments. The event is in German.