BETWEEN THE ‘NO LONGER’ AND THE ‘NOT YET’. SHIFTING SOVEREIGNTIES AT THE AGE OF SUPRANATIONAL CONSTITUTIONALISM

Abstract

The growing and extensive role played by supranational entities has called in the last decades for a theoretical assessment of both their normative status and their regulatory ambitions. The process of globalization has triggered a proliferation of various forms of inter- and supranational polities whose ambits of intervention and powers cut across traditional States’ functions. The progressive erosion of States’ regulatory powers is nowadays largely considered an irreversible process of recasting the founding rationales of constitutions and constitutionalism conceived as the basic normative frameworks that accompanied the formation of the modern State and the establishment of a political community committed to rule of law, democratic legitimacy and the protection of fundamental rights.

The distinctive character of supranational entities – as differentiated from other, rather classical, international organizations – must be seen in an institutional and regulatory framework, though differently designed, whose acts are directly binding for the member States on the basis of an original consent. European Union and World Trade Organization are the two clearest examples of this. Given the pervasiveness of their action and the allegedly (normative) superior status of their decisions, it comes as no surprise that their nature and their ultimate effects have been grasped with the theoretical lenses of ‘constitutionalism’. Since constitutionalism, in its original and simplest meaning, is the theory that predicates that every government should be limited by law, with regard to supranational entities the question is basically twofold: 1) can the limited government doctrine, with all its corollaries (separation of powers, fundamental rights, political responsibility), be disconnected from its native context, ie the Nation-state and its constitution? 2) If so, are these entities compatible with the satisfaction of the normative claims of constitutionalism?