Abusing constitutional identity

Authoritarian populists have discovered the concept of constitutional identity (CI) for themselves as a practical excuse to sidestep transnational legal obligations, and to deviate from shared European values. This has led some scholars to suggest that the concept should be abandoned. However this paper argues that dismissing CI will not lead to the disappearance of the meanings imparted through it. Authoritarian populists will always seek legitimacy by integrating into existing legal discourses. Instead, we need to come to a more intimate understanding of constitutional identity abuse. In this paper, I will make such an attempt by approaching the abuse of constitutional identity with a threefold distinction: Generative abuses pertain to how a CI claim has come about; substantive abuses relate to the substantive content of a CI claim, and relational abuses pertain to the way in which a CI claim is being advanced.