115
Second working session — The impact
These pieces include the emergence of the directly elected European
Parliament with autonomous legal standing in court and increasing powers
of co-decision in the legislative process, fundamental rights guaranteed at the
level of the Union, a strong doctrine of implied powers, and citizenship of
the Union (as interpreted by the Court). We also witness the completion of
the Union’s system of legal remedies and, finally, the Court asserting the au-
tonomy of the European legal order not only with respect to national law but
also, as in the
Kadi
case (
11
), with respect to international law.
Internal Legitimacy
In this piecemeal constitution, we search in vain for a singularly compre-
hensive founding act, let alone popular ratification. This should not, however,
distract us from
Van Gend
’s – and Europe’s – constitutional achievement. To
the contrary, a far greater danger lurks in placing a constitution’s legitimacy
exclusively in a founding act and in a founding power that lies outside the
constitution, as the traditional story of creating constitutions would have it.
The genius of the American system – and why it was longer lived than,
say, the first constitution of France – was not the perfection of the American
Founding. The singular achievement was not the proper ratification of a con-
stitutional document by an external, raw
pouvoir constituant
. Indeed, follow-
ing Hannah Arendt’s account, when the American Founders thought of the
legitimating power of the people, ‘they did not think in terms of a fiction and
an absolute, the nation above all authority and absolved from all laws, but in
terms of a working reality, the organised multitude whose power was exerted
in accordance with laws and limited by them’ (
12
). By the time of the American
Revolution, and certainly when the Constitution was made a decade later,
institutional structure and political authority in the new world had become
inextricably intertwined. This sensibility carried over into the Founders’ crea-
tion. The American Constitution, especially with the multiplicity of authori-
tative actors that comes with federalism and separation of powers, allowed
struggles for constitutional authority to take place within the structure of the
system. This means that the true genius of the American Founders was to
write a Constitution that firmly brought the production of constitutional le-
gitimacy into the system.
(
11
) Joined Cases C-402/05 P and C-415/05 P
Kadi and Al Barakaat International Foundation
v
Council and Commission
[2008] ECR I-6351.
(
12
) H. Arendt,
On Revolution
(New York: Viking, 1963), 165.
