The EU does not have a ‘constitution’ in the traditional sense of the word: a set of basic principles and rules in a single codified document. Nevertheless, the EU has gradually become ‘constitutionalized’ as a result of the interaction between the institutional choices of the national governments, the establishment of constitutional doctrines by the European Court of Justice (ECJ), and the incorporation of these doctrines into domestic constitutions by national courts. To help explain how this ‘judicial politics’ works, and why it has resulted in a quasi-constitutional framework for the EU, we can look at some theories in political science of constitutional establishment and the power and discretion of courts.
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