The Democratic Backsliding and the European constitutional design in error. When will HOW meet WHY?

When is the constitutional design of any (domestic, international, supranational) polity in error? On the most general level such critical juncture obtains when polity’s founding document (treaty, convention, constitution) protects against the dangers that no longer exist or does not protect against the dangers that were not contemplated by the Founders. While discussion of the evolution of human rights and international actors in response to social change (LGBT, euthanasia, abortion) is well documented, such evolution with regard to political change (transition from one sort of government to another) is less well documented. Constitutions not only constitute but should also protect against de-constitution. For supranational legal order to avoid a deadlock of „being in error” in the above sense, the systemic threats coming from within the polity’s component parts must be recognised and constitutional design be changed accordingly.

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The Paradox of Liberal Constitutionalism: a Call for Communal Constitutionalism

We should be careful when we embrace the new transnational paradigm. If dialogue can take place, this must not forget that constitutionalism’s soul must be looked for at the local level, not in the fluid transnational arena – beyond the seemingly neutral vocabulary of technocracy, and reaching out to a physical space where claims can be put forward, resources allocated, boundaries defined, and decisions contested, within touching distance.

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