Any inquiry into ‘abuse’ of the concept of national constitutional identity presumes that one has a good view of what proper recourse to national identity as protected under Article 4(2) TEU requires. The paper will begin with an attempt to sketch such ideal view of the substance of the concept. The confusion on what exactly is covered by ‘constitutional identity’ has never really faded: does Article 4(2) TEU cover only institutional and structural issues, such as federalism and domestic separation of powers? Or does it also include value choices and national preferences over cultural and moral issues and fundamental rights, such as the Schuldprinzip in criminal law or conceptions on the institution of marriage? The paper then tests this view with the case law of the CJEU and national constitutional courts on ‘constitutional identity’ and reflects on whether ‘identity’ should be used as a tool to protect national preferences over cultural and moral values as well as fundamental rights.
The presentation deals with the important question whether constitutional identity is a useful constitutional doctrine or whether the concept is too prone to abuse.
In order to answer this question, the first part focuses on the reasons why the idea of constitutional identity is currently so vulnerable for misuse. Secondly, it demonstrates that constitutional identity in its different understandings and applications can indeed serve valuable purposes and should therefore not be condemned as such. The last and third part is dedicated to the argument that it is important to define resp. redefine constitutional identity based on rule of law ideas.
Populists and authoritarians have discovered constitutional identity (CI) for themselves as a practical excuse to sidestep transnational legal obligations, and to deviate from shared European values. This has led some scholars to suggest that the concept should be abandoned. However, as this paper argues, dismissing CI will not lead to the disappearance of the meanings imparted through it. Authoritarian populists will always seek legitimacy by integrating into existing legal discourses. We need to come to a more intimate understanding of constitutional identity abuse. The abuse of CI, I argue, shows in three ways: Firstly, through the elision of CI and constitutionalism, secondly, through the 'primordialisation' of CI claims as not rooted in law but in the essence of the political community, and thirdly, through 'constitutional solipsism' – the idea that CI is purely an expression of a form of communitarian subjectivity untethered from the relational entanglements of transnational law.
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.