Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision

Abstract

Abstract: Through a close reading of the Maastricht Decision of the German Federal Constitutional Court Weiler examines critically the so‐called No‐Demos Thesis according to which the absence of a European Demos precludes democratisation of the Union at the European level and requires the mediation of Member State institutions. He traces the roots of this thesis to Carl Schmitt and argues that it represents a failure of the Court to understand the Union in terms different from the Schmittian strand in German constitutional theory. He claims, inter alia, that the No Demos thesis is premised on an organic understanding of peoplehood deriving from the European Nation‐State tradition which conflates nationality and citizenship and can, as a result, conceive of Demos only in statal terms. Weiler first presents an alternative view of the Union and of supranationalism and then offers a non organic view of Demos and argues for a ‘European’ notion of membership in which each individual would belong to multiple demoi defined in different ways.