Constitution Making and Constitutionalism in Europe

This chapter argues that it is not strictly accurate to identify a distinctive European tradition of constitution making. Instead, it claims that constitutions were created in European societies in different waves of constitution making, in which very different patterns of public order were projected. Overall, the basic narrative of European constitutionalism can be seen as a series of recurrent attempts to process the legitimational claims of revolutionary constitutionalism, and especially to articulate, in manageable legal form, the revolutionary claim that a constitution must ensure that the will of the people, as constituent power, forms the basic foundation of the polity. In different periods, this basic legitimational construct was either suppressed, or it proved very unsettling for the polities in which it was expected to gain expression. Over a longer period of time, this principle was translated into a constitutional model, in which the constituent power was located in a transnational normative domain, and external norm providers and human rights conventions assumed the primary norm-defining functions classically imputed to the constituent power.