Isiksel, Turkuler. "Non-Democratic Constitutionalism in the European Union". Washington, D.C.: American Political Science Association, 2014.

Isiksel, Turkuler. Non-Democratic Constitutionalism in the European Union. Washington, D.C.: American Political Science Association, 2014.

• The author argues that constitutions can impose limits on democracy far more severe than the issues of oppressive majoritarianism implicit in democracy. The European Union is representative of this type of non-democratic constitutional rule, as are many other international organizations (2).
• Constitutionalism is the creation of a legal system which defines the procedures and parameters of democratic decision-making in a system. This system by its nature limits the scope of democracy exercised in a polity (3-4).
• Some scholars would contest that constitutions compose a natural limitation on the full exercise of democracy, arguing that the institutions and system of decision-making created by constitutions are necessary for the organization of self-governing polities (4).
• This rationalization of constitutions only defends certain elements of constitutions, namely those which allow for effective self-government on legal principles. Parts of constitutions which go beyond this to entrench certain values, rights, or institutions only impose unnecessary constraints on democracy (4).
• The distinction between these types of constitutional functions is defined by Richard Bellamy as political constitutionalism and legal constitutionalism, the former being the structural minimums needed for democracy to function and the latter being the idea of constitutional principles being superior to democracy. This legal constitutionalism prevents democracies from reconstituting their core values and hinders democratic self-governance (5).
• Actual disputes between constitutionalist restrains and democracy are rare in practice, however. Most democratic systems have functional constitutions which reflect popular will and do not prevent free self-governance. National constitutions are more functional in practice than theory would suggest (6).
• Non-democratic constitutions can also exist. These constitutions will not draw their authority from popular will and does not create the institutions needed to effective democratic self-government. These systems can be authoritarian and illiberal, but can also be liberal -- in terms of respecting individual rights -- while remaining undemocratic (6-7).
• Some would argue that constitutions are democratic by their nature, meaning that a non-democratic constitutions is an oxymoron. However, unless one excepts the argument that constitutions are defined by democracy, there is not a clear reason why a legal framework for governance which is undemocratic should not be called a constitution (8-9).
• After several decades of existence, the European Union has developed the characteristics of a constitution interpreted by the European Court of Justice. This constitutional order is upheld by three pillars: the supremacy of EU law over national law, the right of the European Court to review national laws, and the expansion of rights held by citizens deriving from EU law rather than national laws (10-12).
• The constitution governing the EU, in the form of founding treaties, is extremely resistant to change by constitutional standards. Any modification requires the unanimous approval of all member states, as well as approval by the European Parliament. If member states dislike the interpretation of a treaty provision by the European Court, their only choice is to change the treaty through this arduous process (12).
• "Because it operates through a comprehensive and deeply entrenched legal framework, the EU cannot accurately be characterized as a mere emanation of the will of member states qua principals. EU law actively shapes the domestic and international policy options available to member states" (13).
• Contrary to other constitutional systems, the EU does not enable democratic rule nor does it constitution create the conditions for democratic self-governance. Instead, the system enabling judicial review of national laws is anti-democratic because it allows an unelected, unaccountable, and undemocratic body to limit the ability of national legislatures to govern themselves (13-14, 21).
• The EU never claimed to be a creation of popular will, nor did its constitution. Both are the creation of interstate agreements and treaties. The governance system created by the EU constitution reflects this nature and limits the power over governance which populations can directly exercise (14).
• The democratic deficit in the EU does not only exist because of the difficult of creating a democratic international organization, but because the creators of the EU were deeply skeptical of democracy. As an institution created to prevent another European war, the EU was removed from the will of belligerent national governments (18).
• The lack of direct democratic control in the EU is also the result of the failure of the European Defense Community and the European Political Community during the 1950s -- both rejected by the de Gaul government in France -- which killed the idea of direct political union in Europe (18-19).
• The EU institutions were further justified on the basis that the Union deals with issues too large for member states to handle alone. The scope of these issues has expanded significantly, as under the aegis of bringing technocratic governance to issues which could not be solved by traditional democratic means (19).
• All international organizations suffer from issues related to enforcement since national governments are incentivized to cheat if they think they can get away with it. Outsourcing regulatory duties to a supranational body like the EU removes this challenge. This is another reason the EU is purposefully designed with limited accountability to national governments (20).
• "The EU achieves its objectives (particularly those related to economic prosperity) at the cost of massive democratic attenuation and administrative centralization" (14).
• The EU has been struggling against claims of a democratic deficit since its creation, but these became particularly acute during the 1990s. This was supposed to be solved with the empowerment of the European Parliament in 2009, but this has not solved the core issue because most decisions are still made by the non-democratic Council of Europe, which remains the primary legislative body (15).
• The Council is composed of members of the governing cabinets of each member state. This is meant to create some type of democratic accountability, but by only representing the governments of each member state, this system prevents national oppositions from being heard, potentially ignoring the wills of half of the European population during the creation of EU law (16).
• The European Parliament, created in 1979, was meant to give EU citizens greater control over the laws governing them. However, the Parliament has no control over the Council, which continues to issue the majority of legislation, meaning that directly elected parliamentarians still have little overall influence on EU policies (16-17).
• The extreme difficult of modifying the provisions of the EU constitution have also limited the ability of national governments to make it more democratic, responsive, or effective. Since so much of its rhetorical legitimacy is based on supposed effectiveness, this inability to respond to new challenges is extremely challenging to the continued legitimacy and existence of the EU (21-22).
• The increased public resentment of the EU in the 21st Century demonstrates that the attempt to replace democratic legitimacy with legitimacy gained from technocratic efficiency is ineffective. The EU needs politics to steer its course and attempt to limit the ability of democracy to influence the EU only delegitimizes the EU and makes the politics of the EU increasingly skeptical, bitter, and divisive (22).
• Other systems of non-democratic constitutionalism, similar to that existing in the EU, govern other international organization, in particular economic associations like NAFTA or the WTO, both of which have arbitration systems which cannot be overruled with revision of the founding treaties. Many bilateral investment treaties created similar non-democratic constitutional systems (23-24).
• The expansion of these non-democratic constitutional regimes threatens to subvert democratic control of policy-making. This demonstrates that rather than advancing democracy, the expansion of constitutionalism at the international level is likely to erode actual democratic controls (25).