Tuesday, June 25, 2013
1.14 (PC Hoofthuis)
Constitutional projects are commonly initiated after major conflicts, even when it is still unclear how the boundaries between and within emerging nations will be drawn. In these conditions of high instability, the ontological status of the constitutional subject whose boundaries would be protected by the new constitution is highly problematic. As a result, constitutional framers can rarely write the famous “We, the people,” at the top of their constitutional projects. Postwar Western Germany and Western Europe are a case at point: the 1949 Basic Law was written at a time when the German nation was still partitioned and it was silent on questions of foreign policy and military affairs, which were controlled by the occupying powers until 1954. In these conditions, it was clear that any attempt to fill in the 1949 Basic Law with additional provisions regarding the sovereign matters related to questions of life and death of the German “people” would have an impact on the likelihood that the whole German “people” would be able to reunite one day. Still, immediately after the Basic Law was adopted, the Korean war and the first Soviet nuclear test made it necessary for American and Western European leaders to clarify the legal conditions under which West German rearmament would take place. This paper explores the place of the constitutional subject in early efforts to draft military provisions for West Germany and in the associated efforts to draft a constitution for an integrated Europe: the European Political Community Treaty, drafted in 1952 and 1953. More specifically, this paper shows how the West German constitutional dilemmas were exported at the European level when the legal scholars started drafting the constitution of that European Community, and how the instability of the new “European” constitutional subject (whose boundaries were left open) lead to the demise of these constitutional projects.
