Chapter 2: Discursive constituent power and European integration
This chapter relies on the notion of ‘discursive constituent power’. The ambiguity of EU liberal constitutionalism resides in the fact that it has safeguarded the security of the European project by disguising constituent power—the truly political dimension of the process of integration—in the form of the security and fundamental rights discourses. These discourses have contributed to constructing two ideas of ‘people-as-constituent-power’. The first idea is that of ‘mobile people’, a category of people that are supposed to benefit from EU free movement rights. The second idea is that of ‘peoples’ in the plural, conceived as States and citizens at the same time. The security and fundamental rights discourses appear as universalistic and all-embracing, whereas they are in reality always partial, addressed to particular categories of people in particular contexts. Moreover, the building up of the area of freedom, security and justice (AFSJ) is representative of an advanced, more conflictual stage of integration. Although the CJEU tends to protect fundamental rights only to the extent their recognition is instrumental to ensuring the primacy, uniformity and effectiveness of EU law (self-referential security), it is important to interpret primacy, uniformity and effectiveness in relative, not absolute terms.
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