Constitutional Identity and Constitutional Openness

In my remarks, I look first to the substance and legacy of Schmitt’s distinction between the constitution (as concrete unity), which results from the fundamental political decision by the constitution-making power to establish a particular political and social order, and constitutional laws, which instantiate aspects of that order. Second, I detach the idea of the constitution as concrete unity from Schmitt’s identitarian cast and redefine it at least insofar as it refers to the fundamental choice of a form of government. I then connect that fundamental choice to the part of the Goldmann/Menendez paper that discusses the positioning and self-understanding of the Weimar republic in relation to the international legal order. I seek to specify that openness in terms that help us make sense of the contemporary constitutional experience. I use some of the jurisdictions referred in the paper to explore the continuing relevance of that specific aspect of the Weimar constitutional moments.