Unamendability and the Dark Side of Constitutional Identity Arguments

Unconstitutional constitutional amendment doctrines seeking to protect the minimum core or basic structure of a constitutional order from constitutional dismemberment or replacement by stealth do so in the name of protecting constitutional identity. Increasingly, however, constitutional identity arguments have also revealed a darker side. They have seeped into constitutional adjudication of eternity clauses with exclusionary outcomes. They have also provided the foundation for judicial protectionism against supranational law, dubiously relying on unamendability to ring-fence sovereigntist arguments. This paper questions the conceptual value of constitutional identity beyond that of a descriptive device for understanding constitutional specificity. It relies on European case studies to argue that the theoretical and practical difficulties the concept raises should have us reassess constitutional identity arguments, especially as the grounds for a novel form of constitutional review.