Agustín José Menéndez - Academia.edu (original) (raw)

Papers by Agustín José Menéndez

Laeken has ushered in the first continent-wide debate, on the issue of a European constitution. A... more Laeken has ushered in the first continent-wide debate, on the issue of a European constitution. An important question is whether this amounts to Europe's constitutional moment in a critical normative sense. To address this we first distil out five core lessons from the Laeken experience. This serves to clarify which normative standards are relevant through reconstruction of those that actually informed the process. We find that the standards from normative theory are adequate, but that the complex European setting and experience throw up several thorny issues pertaining to how such a process can be organised, so as to comply with democratic norms, and whether it at all can be deemed to be representative. Our concern here is to shed light on how the tension between the idea of a constitutional moment and the notion of democratic representation can be resolved. To this end we develop a normative model of deliberative constitution making.

This paper puts forward the main elements of the theory of constitutional synthesis as a constitu... more This paper puts forward the main elements of the theory of constitutional synthesis as a constitutional theory of European integration. Constitutional synthesis is both a political philosophy of European integration (which dilucidates what kind of polity the Union is an what is its basis of legitimacy) and a theoretical framework capable of guiding constitutional adjudication in hard cases (such as the resolution of conflicts between European and national constitutional law). In essence, constitutional synthesis refers to a process in which already established constitutional states integrate through constitutional law, without losing their institutional structure and identity. We claim that there are three basic insights in constitutional synthesis. The first is that the constitutional law which frames and contributes to steer integration is characterised by the central role played by the constitutions of the participating states (by the regulatory ideal of a common constitutional law). The second is that the supranational legal order comes hand in hand with a supranational institutional structure which is only partially established at the founding, takes time to be rendered functional in aprocess where different national institutional cultures and structures try to leave their mark on the supranational level, and its structure is necessarily rendered more complicated as new institutions and decision-making processes are added up to handle new policies. The third is that while supranational law is one, there are several institutions that apply the supranational law in an authoritative manner. In the last section of the paper, we complete the exposition of constitutional synthesis by considering how it is placed and how it relates to other political and legal theories of integration.

La libre circulación de personas se ha convertido en el derecho subjetivo "par excellence" recono... more La libre circulación de personas se ha convertido en el derecho subjetivo "par excellence" reconocido por el derecho de la Unión Europea. Pese a lo que suele asumirse, ni su titularidad ni su contenido objetivo se han mantenido estáticos durante las últimas décadas, sino que han variado al compás de las transformaciones de la política y el derecho de la Unión. Nacido como un principio rector que protegía los intereses de los trabajadores transfronterizos, la libre circulación se ha convertido también en un derecho subjetivo de los turistas, empresarios y capitalistas, que sirve como ariete con el que atacar los pilares del contrato social de posguerra. Ello da pie a una variante de esquizofrenia que alimenta el lado oscuro del proceso de integración europea.

This article shows how the substantive bias at the core of the present socioeconomic constitution... more This article shows how the substantive bias at the core of the present socioeconomic constitution of the European Union is directly related to the characterization of economic freedoms (crucially, the right to freedom of establishment of corporations and the free movement of capital) as the key yardstick of European constitutionality. An empirically grounded reconstruction of the way in which the European Court of Justice applies the proportionality principle shows that the Luxembourg judges (1) assign the argumentative benefit to the holders of economic freedoms, (2) construct all other constitutional goods in the semblance of economic freedoms, and (3) use asymmetric proof standards when having to justify the adequacy and necessity of economic freedoms and other constitutional goods. As a result, under the cloth of projecting the way in which national constitutional courts review the constitutionality of legislation to the supranational level, the European Court of Justice has radically altered the substance of European constitutional law. In particular, the right to private property and entrepreneurial freedom (as operationalized through the four economic freedoms and the principle of undistorted competition) have been assigned an abstract and a concrete constitutional weight that places key public policies (social policies, tax policies, regulatory policies) off the realm of what is constitutionally possible. As a result, some of the collective goods at the core of the Democratic and Social Rechtsstaat have become extremely vulnerable. Focusing on the proportionality as practice by the European Court of Justice does not only provide us with insights into the nature and substance of European law, but also contributes to the general theoretical understanding of the principle of proportionality itself, in particular to a more detailed reconstruction of the relevant steps in proportionality review.

Laeken has ushered in the first continent-wide debate, on the issue of a European constitution. A... more Laeken has ushered in the first continent-wide debate, on the issue of a European constitution. An important question is whether this amounts to Europe's constitutional moment in a critical normative sense. To address this we first distil out five core lessons from the Laeken experience. This serves to clarify which normative standards are relevant through reconstruction of those that actually informed the process. We find that the standards from normative theory are adequate, but that the complex European setting and experience throw up several thorny issues pertaining to how such a process can be organised, so as to comply with democratic norms, and whether it at all can be deemed to be representative. Our concern here is to shed light on how the tension between the idea of a constitutional moment and the notion of democratic representation can be resolved. To this end we develop a normative model of deliberative constitution making.

This paper puts forward the main elements of the theory of constitutional synthesis as a constitu... more This paper puts forward the main elements of the theory of constitutional synthesis as a constitutional theory of European integration. Constitutional synthesis is both a political philosophy of European integration (which dilucidates what kind of polity the Union is an what is its basis of legitimacy) and a theoretical framework capable of guiding constitutional adjudication in hard cases (such as the resolution of conflicts between European and national constitutional law). In essence, constitutional synthesis refers to a process in which already established constitutional states integrate through constitutional law, without losing their institutional structure and identity. We claim that there are three basic insights in constitutional synthesis. The first is that the constitutional law which frames and contributes to steer integration is characterised by the central role played by the constitutions of the participating states (by the regulatory ideal of a common constitutional law). The second is that the supranational legal order comes hand in hand with a supranational institutional structure which is only partially established at the founding, takes time to be rendered functional in aprocess where different national institutional cultures and structures try to leave their mark on the supranational level, and its structure is necessarily rendered more complicated as new institutions and decision-making processes are added up to handle new policies. The third is that while supranational law is one, there are several institutions that apply the supranational law in an authoritative manner. In the last section of the paper, we complete the exposition of constitutional synthesis by considering how it is placed and how it relates to other political and legal theories of integration.

La libre circulación de personas se ha convertido en el derecho subjetivo "par excellence" recono... more La libre circulación de personas se ha convertido en el derecho subjetivo "par excellence" reconocido por el derecho de la Unión Europea. Pese a lo que suele asumirse, ni su titularidad ni su contenido objetivo se han mantenido estáticos durante las últimas décadas, sino que han variado al compás de las transformaciones de la política y el derecho de la Unión. Nacido como un principio rector que protegía los intereses de los trabajadores transfronterizos, la libre circulación se ha convertido también en un derecho subjetivo de los turistas, empresarios y capitalistas, que sirve como ariete con el que atacar los pilares del contrato social de posguerra. Ello da pie a una variante de esquizofrenia que alimenta el lado oscuro del proceso de integración europea.

This article shows how the substantive bias at the core of the present socioeconomic constitution... more This article shows how the substantive bias at the core of the present socioeconomic constitution of the European Union is directly related to the characterization of economic freedoms (crucially, the right to freedom of establishment of corporations and the free movement of capital) as the key yardstick of European constitutionality. An empirically grounded reconstruction of the way in which the European Court of Justice applies the proportionality principle shows that the Luxembourg judges (1) assign the argumentative benefit to the holders of economic freedoms, (2) construct all other constitutional goods in the semblance of economic freedoms, and (3) use asymmetric proof standards when having to justify the adequacy and necessity of economic freedoms and other constitutional goods. As a result, under the cloth of projecting the way in which national constitutional courts review the constitutionality of legislation to the supranational level, the European Court of Justice has radically altered the substance of European constitutional law. In particular, the right to private property and entrepreneurial freedom (as operationalized through the four economic freedoms and the principle of undistorted competition) have been assigned an abstract and a concrete constitutional weight that places key public policies (social policies, tax policies, regulatory policies) off the realm of what is constitutionally possible. As a result, some of the collective goods at the core of the Democratic and Social Rechtsstaat have become extremely vulnerable. Focusing on the proportionality as practice by the European Court of Justice does not only provide us with insights into the nature and substance of European law, but also contributes to the general theoretical understanding of the principle of proportionality itself, in particular to a more detailed reconstruction of the relevant steps in proportionality review.