How to think about the reach of constitutional identity

Abstract

Should the concept of constitutional identity be applied sparingly and only in instances where the norms of constitutionalism can plausibly be said to have been met? This article defends a capacious understanding of constitutional identity that can prove its worth both as a descriptive analytical tool and as a politically useful construct for countering the disturbing conceptual misappropriation of the concept that has found favour in some of the recent efforts to undermine liberal constitutionalism. It argues that limiting the reach of constitutional identity to those orders that have achieved recognition as exemplars of the genus liberal constitutionalism, thereby withholding it from what may have been their illiberal antecedent, risks obscuring the dynamic process by which democratic transitions might occur. Using examples from a broad spectrum of regime types, the article questions the reasoning according to which constitutional identity is applicable only to those constitutional orders that are in compliance with the norms of liberal constitutionalism. It argues that this constrained application rests too heavily on a flawed understanding of the concept that implicitly accepts the meaning ascribed to it by its abusers in the political realm. A shared static conceptual understanding, according to which identity is discovered in text or history and then largely regarded as unalterable, has led some who invoke it to advance illiberal and exclusivist constitutional agendas, and others who are repelled by the practice to find in its underlying assumptions a basis for their disenchantment with the concept. Neither side sufficiently accounts for the fluidity of the concept, specifically the disharmonic dynamic that is fundamental to constitutional identity rightly understood.