Article 19 TFEU's unanimity requirement shares a striking similarity with a two-century old debate on voting and minority rights between the ‘father’ of the US Constitution, James Madison, and the ‘rebellious son’, John C. Calhoun. Madison made majority voting a necessary condition for impartial lawmaking and minority protection in multistate unions. Conversely, Calhoun sought to maintain the racial status quo through advocating for a competing unanimity-based structure. Minority protection in Article 19 TFEU aligns with Calhoun's model. This Article reassesses Article 19 TFEU through the foundational principles of constitutionalism underlying the US debate and shows their continued relevance for contemporary case law and minority protection in the EU. Particularly, it demonstrates, first, that Article 19 offends the impartiality principle of nemo judex in causa sua—no person should judge their own cause—which has long been a leitmotiv in Western constitutional theory. Second, it illustrates that unanimity causes de jure and de facto ramifications for ethnic and religious minorities in the EU. Last, the Article provides a theoretically grounded and comparatively informed argument to aid ongoing attempts for treaty amendment.

This paper considers contractarianism as a method of justification. The analysis accepts the key tenets of contractarianism: expected utility maximization, unanimity as the criteria of acceptance, and social-scientific uncertainty of modelled agents. In addition to these three features, however, the analysis introduces a fourth feature: a criteria of rational belief formation, viz. Bayesian belief updating. Using a formal model, this paper identifies a decisive objection to contractarian justification. Insofar as contractarian projects approximate the Agreement Model, therefore, they fail to justify their conclusions. Insofar as they fail to approximate the Agreement Model, they must explain which modelling assumption they reject.

This article uses the contested independence of Kosovo as an opportunity to re-examine the theoretical imagery behind the concept of self-determination, and then confront those findings with the more recent approaches to polity formation from other theoretical genres: normative theories of secession, on the one hand, and the global governance approach to self-determination, on the other. What emerges from the encounter between these bodies of thought is not a new interpretation, or a theory of self-determination and its relationship to uti possidetis, but rather a plea for an approach to polity formation which is simultaneously critical and prudential. That is, an approach which would accept the role of external actors as inevitable, but goes further and unmasks them as complicit in labelling certain projects as ‘civic’ and ‘multicultural’ on the one hand and ‘ethno-nationalist’ on the other. Equally, the proposed approach reveals the ever-present aspiration to unanimity as a concealed ideal of polity formation, shared by both the ‘civic’ and the ‘ethnic’ variants of self-determination. Finally, this approach to polity formation sketches the contours of an alternative, thin vision of a political community – one not wearing the badge of peoplehood – one glued together not by normative imperatives of participation and solidarity, but rather by the acknowledgement of geopolitical fiat.

The main instrument of constitutional change in the European Union, during the last twenty years, was the revision treaty, that is, an international agreement between the member states of the European Union making amendments to the so-called ‘founding treaties’. The recent adoption of a European Constitution was seen by all the leading actors, and without any controversy, as involving again a revision of the current Treaties in accordance with the procedure of Article 48 EU Treaty, rather than the creation of a wholly new legal edifice. This Constitution thus fits, despite its many novelties, in the long chain of European revision treaties. All the revision treaties were important steps in the development of the European integration process. They were also, from a legal perspective, cases of amendment of multilateral treaties subject to the legal regime set out in Articles 39 to 41 of the Vienna Convention on the Law of Treaties.

European treaty revision was a success story in what could be called its golden age (1985–2000), when amendments were successfully made and implemented in accordance with the traditional method of intergovernmental conferences followed by national ratifications. However, increasing criticism of this traditional method led, not to the rejection of the international law framework altogether, but to claims for reform of the particular expression of that international law regime in the EU context. Those misgivings related to the exceedingly diplomatic (and therefore opaque) character of treaty negotiations, and to the excessive rigidity caused by the ‘double lock’ of overall consensus by all governments at the intergovernmental conference, followed by universal ratification in all the member states. The article examines the recent debates on these points, as well as the remedies which the new European Constitution adopted or failed to adopt.