[Political representation] is the basis of modern representative democracy. Older and less sophisticated forms, such as direct democracy, subsist marginally, even if they keep exerting a certain attraction. But representative democracy does not carry the self-evident authority it once had. Like every modern institution it is under challenge and consequently needs to be defended. In actual politics, the defence often takes the form of discussion of the merits of one system over the other and of proposals for change. The part of this defence appertaining to constitutional scholarship is not concerned primarily with proposals and changes. It is, before all, to brush up the fundamentals underlying representative democracy, on the basis of topical issues.

There are three current issues upon which we would like to draw attention. They are: equality in structuring electoral systems, the processes of electoral reform and the rise of non-majoritarian institutions versus parliamentary democracy.

We as constitutionalists owe it to ourselves and even to the 500 million other citizens of a member state and of the Union at the same time, to come up with a legally and constitutionally readable understanding of the situation. It must not be one suffering from the split between international and domestic public law. It must not mystify the Union as a completely original structure, intelligible only in its own terms. Such understanding should encompass not only the limits but also the logic of the situation; not only its mechanics but also its evolution. It should be intelligible for the public. It should allow for the multiple dualities of loyalty, of function, of legitimacy. It should allow for shared authority. Constitutional thought is well equipped to deal with actual duality and ambivalence. These characteristics of the Union are real and are here to stay.

The Bundesverfassungsgericht was castigated for the Maastricht-Urteil by most European lawyers, especially the Germans among them. But that judgment has placed its stamp on much of the constitutional development of the Union and has allowed theories of constitutional pluralism, polycentrism, multilevel constitutionalism, Verfassungsverbund and the constitution composée to flourish. The German constitutional court is likewise being castigated for its Lissabon-Urteil. Certainly, it has put the questions of democracy, the level at which democracy is to be aggregated and articulated, and the pertaining institutional arrangements in the member states and in the Union higher on the agenda of intellectual and political engagement than they have been over the last decades. Perhaps it will be just as fruitful for European constitutional theory as the Maastricht-Urteil was.

In a text which claims constitutional rank the principle of citizenship, in all meanings of the term, is fundamental. If a treaty has as its first reference the State, a constitution naturally has as a reference also the citizen. Indeed in the European Constitution provisions abound referring to the citizen. In Part I they are to be found in Titles II and VI; in Part II there is the whole Title V and in Part III there is Title II. As citizenship is everywhere in the Draft, this would deserve it the rank of Constitution that it claims.

This first impression, however, is not supported by reading the different actual provisions in the Draft Constitution concerning citizenship. They fall short on three grounds.

As it is obviously impossible for the modern ‘demos’ to assemble in order to take political decisions, democratic representation is an inevitable tool in large democracies. Representatives have to stand for and to act for the people as a whole. Accordingly, the principle of representative or parliamentary democracy is a fundamental constitutional principle shared by all the Member States of the Union. Democracy doubtlessly works on the national level; the Member States' decisional powers, however, are fading with the constant transfer of competences towards the European level. This leads to a system of European ‘multi-level governance’ with wide consequences for the linkage between the represented peoples of the Member States and their representatives on both national and European levels.

In federal systems public authority is established by the people and exercised for the people at two levels. The treaties establishing the European Union may be conceptualised as the constitution of a supranational public authority, part of a federal system. And what the European Convention has submitted to the European Council to agree upon is an attempt to give this constitution a more coherent, more complete and more appealing form. The new ‘Constitution for Europe’ will be concluded, formally, by an international treaty. But governments and national parliaments will do this on behalf of the citizens of the Union, and insofar as national Constitutions provide for a referendum, the citizens will directly be involved. This Constitution will, therefore, like national constitutions, draw its legitimacy from the people, citizens of the polity, through their constitutional representatives. Legitimacy obtained is similar to that sought for a regular treaty but specific due to the contents and the explicit constitutional claim of the instrument.