A similar deficiency in the control that can be exercised by the National Legislative Bodies is likely to exist when the European Constitution is designed through a similar system of Intergovernmental Conferences. Shaw classifies the basis on which a European Constitution will be offered to the National Legislative Bodies as 'take-it-or leave-it' (p. 182). The nature of this process would account for the European Union adopting a Constitution that is basically undemocratic. The Peoples of the Member States, through the respective Legislative Bodies, will have very little, if any, influence on the structure and contents of the Constitution. Therefore, a different method should be used to design the Constitution of the European Union. In fact, part of the Constitution is already in the process of being formed through means that are equally unfavorable.
The European Court of Justice is increasingly 'constitutionalizing' the Treaties (Shaw, p. 183). That is to say that the Court of Justice in its rulings interprets articles of the Treaties in such a way that they identify certain principles from them that they interpret as having a constitutional nature. This method of creating the European Constitution is even less democratic than making a draft through Intergovernmental Conferences, because the Judges of the Court cannot even be held accountable for their decisions by the European Parliament or any National Parliament. .
The problem that was described in the two previous paragraphs is not of a merely administrative nature. It is a very serious threat to democracy in the European Union. A Constitution that may affect the legal systems of every Member State is being constructed outside of this framework of decision-making that is, in itself, guaranteed by the National Constitutions of all Member States. Therefore, I believe that the European Union must set in motion a process whereby a Constitution is drafted by democratic means.
