The economic constitution & the political constitution: seeking the common good in the post-national setting

Everson, Michelle (2023) The economic constitution & the political constitution: seeking the common good in the post-national setting. Journal of Law & Society 50 (S1), S98-S114. ISSN 1467-6478.

Abstract

In the post-national setting, the concept of the economic constitution has been seen as design template and saviour: whether based in transactional certitude, or founded in ordo-liberal precepts, the economic constitution is assumed to legitimate economic integration across national borders in the absence of comprehensive political settlement. Nevertheless, recent tensions, not just in the EU but more strikingly so, within the WTO context indicate the limits to economic constitutionalism. This contribution seeks the roots of recent disfunction within the history and theory of economic constitutionalism. The contribution traces an adjudicational economic constitutionalism and its place within the European legal order, including the new EU Charter of Fundamental Rights and contrasts this vision with the more comprehensive and/or socialised models of economic constitution found, not only within Weimar, but also within the post-revolutionary/post-conflict constitutional context. The contribution also places a major emphasis upon theorising around the apex of economic-constitutional thought, ordo-liberalism, but concludes that no concept of the economic constitution can be seen in isolation from its social-political context, or from notions of the common good. To this exact degree, failures in modern economic constitutionalism may derive from a misplaced universalism, a technocratic absolutism that abdicates political responsibility for the common good, locating it instead in an ‘idolatry of the factual’ or a new naturalism of market inevitability.

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