Authoritarian populists have discovered the concept of 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 this paper argues that 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. Instead, we need to come to a more intimate understanding of constitutional identity abuse. In this paper, I will make such an attempt by approaching the abuse of constitutional identity with a threefold distinction: Generative abuses pertain to how a CI claim has come about; substantive abuses relate to the substantive content of a CI claim, and relational abuses pertain to the way in which a CI claim is being advanced.
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.
The concept of constitutional identity has been criticized for being too indeterminate and prone to abuse by authoritarian governments. It has been suggested that constitutional identity should be eliminated from European constitutional discourse. This article argues against the banishment of constitutional identity. First, it shows that the critiques of constitutional identity fail to engage with the concept properly and do not offer a credible alternative. Second, the article advances an account of the concept and normative value of constitutional identity. Third, the article argues that such an account of constitutional identity allows us to recognize instances of its abuse.