Requirements for the emerging European constitution

Summary

Maybe the question, “did the US Constitution create the Volk!” would be better phrased, “did the Constitution create a national Volk in addition to the State Volk?” One could look to Madison, who would accept that neither the people of the state nor the people of the nation were wholly sovereign, but rather that Article V embodied the precise division. John Austin also recognized “joint sovereignty”, as well did Alexander Hamilton in Federalist 85, who acknowledged residual sovereignty retained by the states, arguing it would make national government more responsible. Thus, as one scholar proposes, the states were actually the “central components of the constitutional concept of sovereignty.”

If indeed the founders could simultaneously conceptualize both a national and a state Vo/k, this has wider implications for other States looking to create constitutions. As in the case of 18^th Century America, European sovereignty is in the hands of the people scattered amongst various states, and therefore does not exist as one, united “Volk.” This does not mean, however, that legitimacy would be weakened because it is exerted by “peoples,” rather they just represent a more organized level of the “people.” Indeed, the “constitution-making power” could legitimize itself by its very establishment, in whatever form it chooses, as in a “normative power of the factual,” as described by Georg Jellinek. Therefore the subject of a European Constitution could well be the People of the Member States, exerting their sovereignty as people to form a supranational entity, and in the process creating a new identity as a unified People.