The Dangers of Constitutional Pluralism

This article forcefully rejects the normative claims made by constitutional pluralists that it is desirable to leave questions of ultimate legal authority open and unsettled in the EU context. Not only is the concept of constitutional pluralism logically and practically untenable, it also presents grave dangers to the survival of the EU's judicial order. Though advocates of constitutional pluralism had the best of intentions, such as facilitating judicial dialogue and preventing conflict between the Court of Justice and national constitutional courts, their support for this dangerous idea has had damaging effects. Once defended by sincere academics and championed by the highly respected German Federal Constitutional Court, this dangerous idea has now escaped from its protected environment and risks falling into the hands of legal miscreants, such as Courts controlled by increasingly autocratic member state governments in Hungary and Poland. Thus, even as the German Federal Constitutional Court ultimately backed down from open legal conflict with the Court of Justice over the Gauweiler case, other Courts appear to be challenging the supremacy of EU law and the CJEU's role in interpreting it. Rather than serving as a basis for constructive judicial dialogue, the concept of constitutional pluralism presents a clear and present danger to the EU legal order.