Perspectives on the Polish Constitutional Identity: The Use of the Constitutional Tribunal Concept as a Litmus Paper

The paper is underpinned by the supposition that constitutional case-law creates a space where constitutional identity may be reflected and developed. The paper has three objectives. First, to reveal the Tribunal’s concept of constitutional identity. The Tribunal referred to three different jurisdictions (German, French, and Czech) and, consequently, three different concepts of identity. There is a need to distinguish between constitutional ornament, reality, and borrowing. The second objective is to discuss the Tribunal’s concept in a broader context of methods for identification of constitutional identity. The third objective is to use that tool in cases where the Tribunal made references to the pre-constitutional period, and the constitutional founding moment. As a result, some of the elements of the constitutional identity are expected to be extracted from different ‘aspiration and commitments’ of a ‘nation’s past’ implemented in the Constitution.