This paper examines the concept of constituent power within the European Union, comparing Jürgen Habermas’ theory of pouvoir constituant mixte and Kalypso Nicolaidis’ plural pouvoir constituant. The study explores how these two normative frameworks address the allocation and legitimacy of constituent power in the EU’s multi-level polity, focusing on the tension between supranational and national sovereignty. Habermas’ pouvoir constituant mixte posits a dual subject of constituent power—EU citizens and member states—acting in tandem to legitimize the EU’s constitutional architecture. In contrast, Nicolaidis’ plural pouvoir constituant locates constituent power within the collective peoples of the member states, emphasizing non-domination, mutual recognition, and the preservation of national democracies. The paper critically evaluates these theories in light of Brexit, assessing whether the referendum aligns with the democratic legitimacy criteria proposed by Habermas and Nicolaidis. It concludes that while Habermas’ framework struggles to reconcile Brexit with the shared sovereignty of the pouvoir constituant mixte, Nicolaidis’ pluralist approach validates the decision as an expression of member state autonomy. This analysis contributes to the broader debate on democratic legitimacy, sovereignty, and constitutionalism in the EU, offering insights into the theoretical and practical challenges of transnational governance.
Steffen Wölfel (Fri,) studied this question.