116
Daniel Halberstam
Deuxième séance de travail — Les retombées
A constitutional system may therefore be legitimated less by how it comes
about and more by how it operates over time. Indeed, if we look closely, we
find this to be true of many, if not most constitutional systems. For example,
I would argue this to be true in the United States, where we cannot sensibly
trace the current legitimacy of the Constitution back to the founding act(s) of
long dead partial elites. And I would argue this to be true in the case of, say,
Germany, whose
Grundgesetz
has not been ratified by the German people to
this day. Constitutional legitimacy in both derives not so much from founding
acts as from the legitimating political activity that has taken place within the
systems over time. All this is also a valuable lesson as we witness Hungary’s
constitution being butchered by many (often technically legal) constitutional
reforms that gut the continued production of internal legitimacy.
Conclusion
Van Gend
’s constitutional dimension does not and need not presuppose
an external, legitimating constitutional author. Instead, the decision helps to
create one.
Van Gend
, and the subsequent decisions and acts that contributed to
Europe’s piecemeal constitution, neither established nor presupposed the
constitutional legitimacy of this system. Instead, they helped create structures
that promise to render the Union, and its claim to an autonomous legal order,
legitimate over time. As such, these decisions can never be more than an invi-
tation to establish the constitutional legitimacy of the system from within the
system. That is no failing. To the contrary,
Van Gend
and the decisions that
follow in its wake thereby aspire to the very best of the constitutional tradi-
tion. They leave the heavy lifting up the rest of us.
