Formwandel des Konstitutionalismus

Abstract

This article argues that the passage to world society proliferates a structural transformation of constitutionalism. It is argued that its postdemocratic character is mainly rooted in a process where substantial policy objectives (most notably free-trade, investment protection and austerity programs) are constitutionalized on a higher-ranking level. While the first part of the article elaborates this diagnosis by combining systems-theoretical and post-marxist insights, the second part turns to a critique of contemporary theories about transnational constitutionalism. It reveals the shortcomings of cosmopolitan, societal and popular-sovereignty approaches in overcoming these postdemocratic structures. Finally, it is argued that-in the light of such a new constitutionalism-the notion of constituent power must be replaced by the figure of a destituent power which attempts to free the constitution as a form from the selective policy objectives.