The Meaning and Value of Constitutional Identity in Europe

This paper develops a conceptual and normative account of constitutional identity in the European context. First, it suggests that the recent critiques of constitutional identity, while rightly cautious about this notion, fail to successfully engage with its structural elements and normative value. Second, the paper argues that constitutional identity consists of core normative commitments that arise in a community in virtue of the fact that it has a constitution, and that this restricts the content of constitutional identity, allowing us to recognize the instances of abuse: on the one hand, such normative commitments are a part of constitutional identity only if they satisfy the conditions of authenticity and depth, and on the other, they must not transgress the boundaries of a credible conception of constitutional authority. Third, the paper explains why constitutional identity, understood in this way, is a valuable feature of the European multi-layered constitutional framework.