At the beginning of 2019, the Constitutional Court of the Slovak Republic derogated the constitutional amendment for its conflict with the material core of the Constitution. In the Court's view, Parliament must not intervene with the constitution’s identity, which is defined by an open account of legal principles. In my presentation, I try to analyse this decision critically with a focus on constitutional identity.
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.
The 2011 Hungarian constitution, called the Fundamental Law, characterises the community as an ethnic Hungarian and Christian nation. The communal identity rests on three pillars: religious considerations, historical elements, and the government’s strong anti-immigration stance. However, the ethnocultural identity offered by the Fundamental Law allows only some and not all people to believe that they are part of the same political community. Thus, it seems improbable that this communal identity would be in harmony with EU law. For Hungary to comply with the EU law, the adoption of a new democratic constitution suitable for integrating the disunited nation would be required to offer a new communal identity. When constructing this identity, the local peculiarities of constitutionalism and the universal values should be taken into account.
The presentation focuses on the German concept of constitutional identity. The first part describes the historical background and development briefly. Secondly, the constitutional identity doctrine, as developed by the German Constitutional Court in its famous Lisbon judgment and later decisions, is described. The final part analyses the German concept of constitutional identity. It will be argued that even though the German concept can be criticised as a too creative judicial concept, it is as such a legitimate constitutional doctrine as its ultimate purpose is to protect the core principles, respectively, the content of the German constitution.
The paper defines the content of a thin and a thick versions of the 'legal' constitutional identity developed by the Czech Constitutional Court as well as a ‘popular’ conceptualization of identity, which goes beyond the constitutional text and is built around formative historical events in Czech(oslovak) history. It explores the normative effects of the 'legal' identity, especially in relation to the EU. It argues that an open conflict between the Czech constitutional identity with the EU law is unlikely in the near future. Finally, the article shows that the gap between the ‘legal’ constitutional identity and the ‘popular’ constitutional identity is growing, which has significant repercussions for the Czech constitutional order. There are two ways how to address this situation – to forge a strong sense of constitutional patriotism among the people, and to enhance participatory mechanisms through which the people can participate in developing the Czech constitutional identity.