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The 2005 French and Dutch negative votes on the Constitution open up a space of conceptualisation, not only of Europe's relation to its demos, but significantly to its failures. Through a critical analysis of mainly Niklas Luhmann's systems theory, the article proposes taking a distance from traditional constitutional dogmatics that are no longer capable of dealing with the paradox of contemporary society, and more specifically with the eventual resurgence of the European project as one of absence and stasis: the two terms are used to explain the need, on the one hand, to maintain the ‘absent community’ of Europe, and, on the other, to start realising that any conceptualisation of the European project will now have to take place in that space of instability and contingency revealed by the constitutional failure. The relation between law and politics, the location of a constitution, the distinction between social and normative legitimacy, the connection between European identity and demos, and the concept of continuity between constitutional text and context are revisited in an attempt to trace the constitutional failure as the constitutional moment par excellence.
