Constitutionalism and Constitutional Anomie in the New Europe

The recent (re-)establishment of constitutional democracies in Central and Eastern Europe is affected by a paradoxical situation: while modern constitutionalism was significantly strenghtened by the ‘new constitutionalism’ in the region, it is itself increasingly seen as out of touch with (pluralist) reality. In the paper, I explore to what extent it can be claimed that the new constitutionalism adopted in the former communist countries is a reinvigorated version of ‘traditional’ modern constitutionalism. To the extent that this seems indeed to be the case, I outline a number of problématiques or tensions that modern constitutionalism provokes in the current European context. These include four problématiques in particular: state-centrism, cultural diversity, depoliticization, and participation. In the third section, I will discuss possible solutions to or ways out of these four problématiques by hinting at, in a descriptive sense, insufficiently (or un-)explored dimensions of the Central and Eastern European constitutions. And in a more normative sense, I will at the same time indicate possible steps towards constitutional change that would, in my view, make current constitutional orders more amenable to challenges of pluralism, democratic legitimacy, and post-nationalism.