This article explores the limits of constitutionalism. It queries whether constitutionalism, as conventionally understood, can be translated to encompass the phenomenon of transnational law. By acknowledging that constitutionalism, which used to be an exclusively statist concept, has migrated to quite plausibly describe, analyze and normatively guide the realms of international and supranational law, in particular that of the EU, the article stipulates that transnational law might pose a limit to constitutionalism’s conceptual malleability. The constitutive features of transnational law, which is non-statist, plural, based on functional sovereignty and exhibits heterarchy, so to loosen the uniformist and other order-associated traits of law, would call for a categorical redefinition of constitutionalism. In that case, rather than sticking to the same label, but substantively referring to a different concept in kind, it would be more beneficial for (transnational) legal theory and practice to develop a new theoretical framework embedded in the idea of principled legal pluralism.
The ruling of the German Federal Constitutional Court in the Right to be forgotten II case is an example of constitutional pluralism in action. It demonstrates how a pluralist-minded court can elevate itself from and above the constitutional confines of its own legal order. By integrating the material standards of another legal order in its own review of constitutionality a national constitutional court contributes directly to the strengthening of the fundamental rights of individuals against the national authorities within the overall system of European legal order.
This article analyses the future of fundamental rights protection in the EU ten years after the adoption of the Charter of Fundamental Rights.