European “Frankenstein Constitutionalism”: TEU Article 2 as a Federal Homogeneity Clause

Abstract

This essay argues that the Court of Justice of the European Union's (CJEU) insertion of a federal homogeneity clause into the EU's primary law is an (ahistorical) and dysfunctional “legal transplant” that does not correspond to the state of European integration. It has its place in specific state constitutional systems, which needed or need an axiological backing of their foundational order, but cannot adequately organize the interaction between the EU and member states. In post-war Germany, value constitutionalism had an important stabilizing effect on society. It contributed to the symbolic reproduction of a society that needed new patterns of orientation after the horror of National Socialism. The insertion of such a clause into the basic order of the EU is taken out of context and brings with it dysfunctional and opportunistic results.