Abusing constitutional identity

Populists and authoritarians have discovered 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, as this paper argues, 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. We need to come to a more intimate understanding of constitutional identity abuse. The abuse of CI, I argue, shows in three ways: Firstly, through the elision of CI and constitutionalism, secondly, through the 'primordialisation' of CI claims as not rooted in law but in the essence of the political community, and thirdly, through 'constitutional solipsism' – the idea that CI is purely an expression of a form of communitarian subjectivity untethered from the relational entanglements of transnational law.