2. Theory: Rhetorical Action3. Theory: Variables4. Method: QCA 5. QCA Results The resulting combinations for the QCA analysis can be displayed in a truth table: From this truth table, the necessary and sufficient conditions for constitutionalization can be derived. The results show salience as the dominant factor and a time-dependent alternative mechanism after the SEA: 6. Process Analysis: Aims As a second step, in-depth process analyses are carried out for selected constitutional decisions. The analyses have two main aims: 1.) to substantiate the QCA results, i.e. to confirm or disconfirm that either salience or the combination of coherence, consistency and publicity is both necessary and sufficient to bring about constitutional change; 2.) to investigate whether the independent variables work via the mechanism of rhetorical action, i.e. whether they are influential as arguments, or whether the outcome can be explained as a bargaining result. To this end, the analyses measure member state positions on the respective issues, scrutinize whether the negotiation can be categorized as a bargaining or argumentation process, conduct a discourse analysis to investigate the use of arguments relating to the independent variables, and compare the differently justified proposals to the outcome in order to measure success. 7. Process Analysis: Case Studies Two process analyses have been carried out so far: 1.) The first process analysis concerns non-discrimination and minority rights in the Convention leading to the Charter of Fundamental Rights. In the case of non- discrimination, where further constitutionalization took place despite low salience, the analysis shows that arguments invoking salience and coherence are unsuccessfully used against an extension of the non- discrimination principle, whereas the most often positively invoked and most successful argument was consistency with international norms. The outcome of the minority rights case (no constitutional change) does not seem to reflect an argumentative process but can be explained as a bargaining result. 2.) The second process analysis focuses on the issue of parliamentary powers in the Constitutional Convention. This analysis confirms the dominance and success of salience-related arguments in the decision to further enhance the EP’s powers in the Constitutional Treaty despite strong opposition by big member states. The process was largely argumentative, but did not lead to converging views as a result of persuasion. 8. Conclusions The Constitutionalization of the European Union Alexander Bürgin, Berthold Rittberger, Frank Schimmelfennig, Guido Schwellnus The QCA and process analyses confirm the project’s assumption that references to the community ethos provide a strong pull towards further constitutionalization. Of the independent variables, salience proves to be the most influential factor for constitutional change, specifically in the initial phases. In later stages, coherence with existing EU norms provides for a path-dependent momentum and in combination with references to the consistency with codified international norms can induce constitutional change in the absence of salience. By contrast, publicity does not appear to be systematically related to constitutionalization. However, although relapses behind already established standards do not occur, progress in constitutionalization is not automatic. Absent salience, constitutional change rarely occurs, and only when a strong argument with reference to both EU and international norms can be made. The dependent variable of the project is constitutional change. As independent variables, the theoretical framework suggests four conditions under which EU constitutionalization is more likely to occur: 1.) the salience of the issue, i.e. whether the pooling and delegation of competences to the EU level undermines domestic or international human rights protection or parliamentary powers; 2.) the publicity of the negotiation process, i.e. whether the decision was taken in an IGC behind closed doors or was preceded by a public Convention process; 3.) the consistency with codified international norms; 4.) the coherence of a proposal with already existing EU norms and precedents in terms of treaty provisions, secondary legislation, ECJ judgments etc. To address this double puzzle, the project proposes the mechanism of rhetorical action, i.e. the strategic use of arguments in a community environment, to explain why despite persisting divergence in constitutional member state positions both EU-level human rights protection and EP powers have increased over time. Within a highly institutionalized environment such as the EU, which is normatively based on a liberal- democratic community ethos, rhetorical action is assumed to be relevant because actors are forced to justify and legitimize their behavior with reference to community norms. This is specifically the case in issues regarding the constitutional nature of the Union. Rhetorical action does not imply persuasion and socialization as a result of argumentation processes. Actors holding contravening positions are silenced or shamed into compliance without necessarily changing their views after argumentative defeat. The project utilizes the method of Qualitative Comparative Analysis (QCA) developed by Charles Ragin in the ‘crisp-set’ version, which uses binary coded variables. QCA allows to determine necessary and sufficient conditions in terms of combinations of independent variables on the basis of Boolean algebra. Depending on how contradictory cases (combinations for which both positive and negative outcomes occur) and remainders (combinations for which there are no empirical cases) are treated, QCA gives more parsimonious or ‘conservative’ results. For the analysis, the independent and dependent variables are coded for ten constitutional decisions in the history of the EU (ECSC 1951, EDC/EPC 1953, Rome 1957, Luxembourg 1970, Brussels 1975, SEA 1986, Maastricht 1992, Amsterdam 1997, Nice 2000, Constitution 2004) with regard to four sub-categories within both human rights (civil and political rights, non-discrimination, minority rights, social rights) and EP powers (legislative powers, budgetary powers, Commission appointment, Commission control). The project analyzes processes of constitutio- nalization on the EU level in two issue areas: 1.) the extension of powers of the EP 2.) the institutionalization of human rights EU constitutionalization is a puzzle for rationalist and constructivist theories, because it can neither be explained as a bargaining result on the basis of the material interests and power of member states, nor does it indicate an increasing convergence of member state positions as a result of socialization processes. 1. Overview