Control by aggregation? Critical reflections on global constitutionalism in the shadow of looming transnational emergency powers

This paper rethinks the relationship between rights protection and global constitutionalism by taking on the issue of the latter’s corresponding political order in the light of looming transnational emergency powers. By removing the veil from the aggregate power structure underlying global constitutionalism, it makes a twofold argument about global constitutionalism. First, in contrast to the separation of powers in domestic constitutional orders — which operates as a structure of “articulated governance” based on the logic of articulation — the structure of aggregate power prevents transnational governance from growing into another all-powerful sovereign creature — what will be called “control by aggregation.” Yet such control is limited. With respect to a transnational state of emergency such as that illustrated by the Eurozone crisis, this paper further argues that the structure of control by aggregation founders when constituent sovereign states continue to be the masters of international relations. To tame transnational executive power, a rethinking of global constitutionalism along the lines of articulation is suggested. Non-sovereign constituent regimes under multilevel constitutional ordering can act as an irritant to force sovereign states to articulate emergency actions, paving the way to opening shadowy transnational administration to public scrutiny.