Can constitutional regimes beyond the state capture those "goods" for which we value constitutionalism as a form of political ordering? In order to address this question, this dissertation focuses on the de facto constitutional system that has grown out of the 1957 Treaty Establishing the European Economic Community (EC Treaty). Although political theorists traditionally understand constitutions as fulfilling two functions, namely protecting individual rights and organizing the exercise of popular sovereignty, it is argued that the European legal order represents a third mode of constitutional practice. In the supranational context, the familiar mechanisms of constitutional rule (including individual rights, judicial review, and a hierarchy of norms) have become detached from their traditional normative anchors. Instead, they have been deployed instrumentally to improve governmental effectiveness in matters of common interest among member states. Insofar as the European legal order has been designed to administer the limited telos of market integration, it represents a new, pragmatic form of constitutionalism which this dissertation proposes to call "functional constitutionalism.";Notwithstanding its initial technocratic scope, the project of European integration has gained a more explicit political footing since the signing of the 1992 Treaty on European Union (TEU). As a consequence, the European legal order has evolved beyond its original market foundations. The dissertation tracks this constitutional transformation by focusing on four substantive elements of the EU's regime of individual rights, namely, fundamental rights, market freedoms, Union citizenship, and the principle of non-discrimination. It concludes that although the EU is slowly moving towards a supranational constitutionalism founded on basic rights protection, it is yet to fully transition out of its original functionalist mold.
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