Vertical Polarization: The Collapse of the Multilayered Constitutional Framework in Europe

For the second half of the twentieth century and the early years of the twenty-first century, the belief in pancontinental constitutional frameworks boosted the political and legal integration of Europe. In less than twenty years, the scenario has dramatically changed. The belief that the peoples of Europe would proceed through a potentially endless process of harmonization and unification has been replaced by political tensions between those who support integration and those who support state sovereignty. Such tensions have materialized both within the European Union and in the Council of Europe, as the recent clash between the Polish Constitutional Court and the Court of Justice of the EU on one hand and the Russian abandonment of the Council of Europe on the other exemplify. Beneath the surface, the two factions have profoundly different agendas. The supporters of integration often advocate for a progressive and liberal agenda and state power constraints, while conservatives couch their arguments in terms of state sovereignty and domestic political discretion. The net result is a form of vertical polarization – a tension between factions alternatively supporting state or supranational and international frameworks. Such factions often see state claims and supranational and international frameworks claims as irreconcilable, because each level of government would be inextricably associated with a specific political agenda. The article distills the vertical characters of polarization in Europe, explains how political polarization has morphed into strained relations between national, supranational, and international institutions, and considers and criticizes some recent proposals to reinvigorate pan-European integration. It concludes that the survival of pancontinental institutions in Europe can only be achieved by distinguishing between political agendas and constitutional frameworks in largely unprecedented ways: a task that only European legal culture can carry out.