Abstract
AbstractIncreasingly, populists and authoritarians have discovered for themselves the notion of constitutional identity as a practical excuse to sidestep transnational legal obligations, as well as to vindicate their constitutional projects on the whole from concerns about the rule of law and other shared European values. This has led some scholars to highlight the “dangers of constitutional identity,” brandishing it as an “inherently dangerous concept,” and suggesting that the concept ought to be abandoned. This Article argues that the anti-pluralist critiques of constitutional identity, while rightly criticizing the authoritarian appropriations of constitutional identity, ultimately go too far and draw the wrong conclusions. Simply dismissing the concept of constitutional identity will not lead to the disappearance of the meanings imparted through it. The authoritarian and populist appropriations of constitutional identity must be identified and understood as abuses of the concept. By eliding constitutional identity with its abuse, the anti-pluralist critique sacrifices a more intimate understanding of the realities of constitutional identity abuse to a likely unattainable normative vision of uncontested EU law primacy. In advancing this critique, I will further outline three potential avenues for understanding constitutional identity abuse, differentiating between its substantive, generative, and relational aspects. Constitutional identity claims can be abusive by virtue of their substantive content, how they have come about, as well as how they are advanced.
Highlights
Increasingly, populists and authoritarians have discovered for themselves the notion of constitutional identity as a practical excuse to sidestep transnational legal obligations, as well as to vindicate their constitutional projects on the whole from concerns about the rule of law and other shared European values
Dismissing the concept of constitutional identity will not lead to the disappearance of the meanings imparted through it
The idea that the concept of constitutional identity itself is responsible for its misappropriations and the problems they cause in the European legal order is highly questionable
Summary
The conceptual history of the argument from constitutional identity in the European context is, at this point, a firm and well-known part of European law lore. In the course of this, several constitutional courts, seemingly inspired by the clause in Article 4(2), began fleshing out their own doctrines of constitutional identity as a way of asserting the primacy of their national constitutions. The Court declared itself competent to review European Union legislation, including any new treaties, for compliance with German constitutional identity.[26] An anchor for the Court’s conception of constitutional identity was the “eternity clause” in Article 79(3) of the German Constitution. The German Constitutional Court, for instance, claimed in its Lisbon judgment that the institution of identity review was the only way to ensure compliance of EU institutions with Article 4(2) of the TEU.[41] The Polish Constitutional Tribunal argued that constitutional identity was the equivalent to the concept of national identity. In OMT, it argued that the identity review conducted by the Constitutional Court is “essentially different” from a review under Article 4(2).[49]
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