The case for militant constitutional identity in the EU

Constitutional identity emerged in the EU as a distinctive claim of post-WW II constitutionalism. Within this frame, CI originally consisted of distinctive claims of post-WW II State-centred liberal constitutionalism, including the protection of the rule of law, fundamental rights and the separation of powers. In the last decades, CI has been prone to a process of abuse and manipulation, with the well-known departure from its liberal constitutional origins. The emergence of “unconstitutional constitutional identities” led the Court of Justice to identify an autonomous concept of constitutional identity of the EU, which may set ultimate boundaries to the illiberal manipulation of the concept of national constitutional identities. The paper will illuminate this process from the perspective of the theoretical models of militant democracy: is the emergence of an autonomous concept of constitutional identity of the EU affirming a militant conception of constitutional identity?