Constitutional Identity Research Articles

Competing visions of ‘the people’ in Australia: First Nations and the state

In 2020 the Australian High Court decided the case of Love v. Commonwealth; Thoms v. Commonwealth, a claim of constitutional belonging by two Aboriginal men. The Court was fractured in its reasoning and conclusion, a majority deciding that ‘Aboriginal Australians’ cannot be aliens. The case sits within a longer and ongoing story regarding the interaction between First Nations peoples and the Australian settler colonial state. The reasoning of the Love/Thoms case reveals two contrasting visions of the constitutional identity of ‘the people’ – one being a plural and diverse conception potentially capable of accommodating a distinct identity of First Nations peoples, the other being a unified conception dominated by formal equality and democratic participation. A study of the Love/Thoms case in its context also speaks to broader questions of constitutional identity. First, that constitutional identity is constructed through the interaction of multiple actors. It is through an ongoing dialogic between constitutional actors that constitutional identity evolves over time. Second, that there is a relationship between the identity of ‘the people’ and of their Constitution. A study of the construction of the constitutional identity of ‘the people’ in this case reveals principal characteristics of the Australian state’s constitutionalism: going to institutional and substantive questions regarding the respective roles of the people and the Courts, equality and sovereignty.

How to think about the reach of constitutional identity

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.

China’s socialist constitutional identity

This article explores the dynamics of China’s socialist constitutional identity. It identifies three disharmonic conditions aminating the dynamics: the competing socialist, liberal, universal, and Confucian commitments internal to China’s Constitution; the external discrepancy between the socialist constitutional commitments and social realities; and the normative gap between socialist and generic constitutional identity. The article further generalizes judicial, legislative, activist, and discursive models of dynamics of China’s socialist constitutional identity. Accordingly, China’s socialist constitutional identity is variously shaped by adjudication, legislation, social movement, and public discourse.

A precious heritage?: The construction of constitutional identity by Indian courts

The Supreme Court of India has invoked ‘constitutional identity’ as a doctrinal device for adjudicating some of the most fundamental legal and political conflicts in independent India. Most famously, in Kesavananda Bharati v. State of Kerala,1 the Court deployed this concept, through the device of the basic structure doctrine, to place substantive limits on Parliament’s power to amend the Constitution. Today, the Court’s invocation of the basic structure doctrine is not limited to adjudicating the constitutionality of constitutional amendments. The Court deploys this doctrine to perform a range of adjudicative functions alongside two other concepts that invoke the identity of the Indian Constitution as the basis for adjudication – ‘constitutional morality’ and ‘transformative constitutionalism.’ These terms denote that there are inherent values and purposes within the Indian Constitution that go to the core of its identity and that can be invoked in making constitutional decisions. In this article, I explore the value or otherwise of using constitutional identity in adjudication by examining how the Supreme Court has used these three concepts. I argue that in recent years, the Supreme Court has been invoking constitutional identity much beyond its initial use of protecting the Constitution from radical amendments. Rather, the Court now uses constitutional identity to discipline all exercises of state power by treating the preservation of constitutional identity as both justification for and limitation on the exercise of state power. I argue that this expansive use of constitutional identity is dangerous.

Unity in diversity? Constitutional identities, deliberative processes and a ‘Border Poll’ in Ireland

Unity in diversity? Constitutional identities, deliberative processes and a ‘Border Poll’ in Ireland

Przełamanie konstytucji w konstytucjonalizmie weimarskim

Breaking the Constitution in Weimar Constitutionalism The aim of the article is an analysis of the phenomenon of breaking the constitution. It comes from expierence of the german legal positivism from the second half of the nineteenth century and it is firmly rooted in the constitutional practice of the Second Reich. This practice was the passing of the laws in the mode required for the constitutional change. Their result was the modification of some of the constitutional norms without any change of their text. Such laws didn’t repeal the binding force of concrete norms directly, but they did it indirectly. Such laws didn’t become the part of the constitution in formal meaning, but they became the part of it in a material sense. This practice was accepted by the majority of the german constitutionalists and other representatives of legal science. Supporters of the practice were especially the authors of liberal­democratic views. While the authors of the conservative views rejected the provisions of the legal positivism and the practice of breaking the constitutional norms traeted as an extraordinary measure of the repealing of the binding force of them and it cannot violate the fundamental rules and values of the constitution. Nowadays the weimar authors discussion is the important source of inspiration for the participants of the global debate on the limits of the constitutional change and the need for separation and the protection of constitutional identity.

CONSTITUTIONALITY REVIEW OF INDONESIAN CONSTITUTIONAL AMENDMENTS: HISTORY AND FUTURE

This article intends to describe the constitutional basis for the importance of mechanism for reviewing the constitutionality of constitutional amendments in Indonesia. This is based on: first, the existence of provisions both implicitly and explicitly regarding the limitations of constitutional amendments in the Indonesian Constitution, both contained in the Preamble which includes Pancasila as a philoshopie grondslag, the ideals of the state which is also a constitutional imagination, as well as in the body norms of the Indonesian Constitution as contained in Article 37 paragraph (5). Second, the history of amendments to the Indonesian constitution, which has gone through incidents of distorted constitutional amendments which were marked by the dissolution of the Constitutional Assembly as well as transition to the Indonesian Constitution by the President, which is not actually within his authority. The channel for reviewing the constitutionality of amendments to the Indonesian constitution in the future is required by adding this authority to the Constitutional Court, so that the Constitutional Court does not merely serve as a guardian of the constitution an sich, but also becomes a guardian of constitutional identity and the basic structure of the constitution so that it is not not removed and damaged by pragmatic and distorted constitutional amendments.

The impact of digital transformation on the constitutional and legal foundations of the Russian Federation

The subject. The impact of digital transformation on the foundations of the constitutional system, namely the possibility of its influence on their form, content and implementation system, has been studied in this article. The authors put forward a hypothesis about the formation of the principle of the digital state, which underlies the interaction of society and the state in the conditions of building a digital economy in Russia. Active implementation of this principle was observed during the COVID-19 pandemic. Also, the factors that can give an obvious and non-obvious impetus to the transformation of the constitutional identity of the foundations of the constitutional system are identified.The main functions of the constitutional principles are to preserve the stability of the foundations of the constitutional system and constitutional identity. We believe that modern legal science needs to comprehend the formation of new principles of interaction between society and public authorities, under the influence of digital technologies.

Role of Religion in Politics

In India in spite of partition on the foundation of religion, the country resolved to be a secular state and promulgated its Constitution in 1950 accepting equal rights for all citizens irrespective of their caste, creed or race. It was undoubtedly a great step forward. But it was not easy to translate the constitutional ideals into practice in a society as complex as that of India. The Indian state remained not only soft towards communalism but it also encouraged it, if it paid political dividends. This article discusses the role of religion in politics.

Challenges to Constitutional Identity of Gilgit-Baltistan

Humans as social beings tend to form and identify as groups on ethnic, geographic, religious, ideological, linguistic basis, etc. Once such a group identity is formed, those who identify also demand recognition, sometimes for the purpose of prestige and other times for the sake of political representation. Identity in the modern world, premised on the principles of democracy and freedom, is considered a basic human right. Pakistan is also one such state that recognizes people’s right to association. However, in Pakistan, Gilgit-Baltistan probably is athe only tract of land in comity of nations that, unlike secessionist movements across the globe, has continued to struggle for complete integration with the state of Pakistan. Yet tThe denial of political identity continues even after more than 70 75 years. This study will undertakes a chronological examination of major events and reasons that led to political identity crisis of GB. Federalism as a conflict resolution theory will be, thus, utilized in this study to make a case for G-B’s valid concerns. Henceforth, the political conundrum of Gilgit-Baltistan should reach clarity as further lingering of the conflict will exacerbate into intractable conflictthe overall situation.

Protection of Constitutional Identity as a Legitimate Aim for Differential Treatment

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Political constitutionalism and populism

AbstractCriticisms of political constitutionalism's relationship to populism point in two opposed directions. Legal constitutionalists consider it too open to, and even as legitimating, populist politics, whereas radical democrats consider it too closed to popular participation, prompting an anti‐system politics of a populist character. I dispute both these views. Underlying these contrasting assessments are differing conceptions of populism and constitutionalism. This article distinguishes right‐ from left‐wing populism, and limited government from non‐arbitrary rule, as constitutional ideals. Legal constitutionalism typically embraces the first ideal. However, that can be a driver of both right‐ and left‐wing populism, and allow types of arbitrary rule that democratic backsliding and illiberal regimes can (and do) exploit. By contrast, political constitutionalism involves the second ideal and is antithetical to right‐wing populism while potentially friendly to the legitimate demands of left‐wing populism. Nevertheless, the practical reality of political constitutionalism in the United Kingdom (and elsewhere) often falls short of its ideal theoretical potential. Addressing these shortcomings, however, requires strengthening democracy rather than the legal constitution, not least through electoral reform.

A concept at the edge of national and European constitutional law: different understandings within the same region. Constitutional identity in Poland and Hungary

A concept at the edge of national and European constitutional law: different understandings within the same region. Constitutional identity in Poland and Hungary

Constitutional Identity as Competing Historically Driven Narratives: Central and Eastern European Perspectives

Constitutional Identity as Competing Historically Driven Narratives: Central and Eastern European Perspectives

Constitutional Identity as Discourse: Mis-identity and Dis-identity

Constitutional Identity as Discourse: Mis-identity and Dis-identity

State Language and Constitutional Identity of Ukraine: The Nature of the Relationship

State Language and Constitutional Identity of Ukraine: The Nature of the Relationship

The Concept of Constitutional Identity as a Substantive Expression of the Principle of Subsidiarity

The introduction of the subsidiarity principle by the Maastricht Treaty was intended to strike a balance between the Member States and the supranational level in terms of non-exclusive competences. However, the principle of subsidiarity in the current EU structure is Janus-faced: although it was theoretically included in the founding treaty to protect the lower levels, its modus operandi is actually aimed at demonstrating the supranational level’s capacity to act. Perhaps this is why the enshrinement of the subsidiarity principle in the Treaty has not lived up to expectations, and the relevant Treaty provisions have largely remained dead letters. At the same time, the need represented by the principle of subsidiarity, namely the protection of the autonomy of the Member States, remained present in European integration, which finally emerged in the concept of constitutional identity, linked to the redefined identity clause after the Lisbon Treaty. In this sense, the identity clause in Article 4(2) TEU has become the legal device or standard that is able to transfer the constitutional needs of the Member States to the level of EU law and provide the possibility for their recognition at EU level. For this to work, a cooperative approach by national constitutional courts seems essential.

From sovereignty to social liberalism: Two new dimensions of constitutional identity in Ireland

From sovereignty to social liberalism: Two new dimensions of constitutional identity in Ireland

Use, Misuse, and Abuse of Constitutional Identity in Europe

Use, Misuse, and Abuse of Constitutional Identity in Europe

The influence of Serbia's historical constitutions on its modern constitutional identity: 30 years since the return of the liberal-democratic constitutionality

The influence of Serbia's historical constitutions on its modern constitutional identity: 30 years since the return of the liberal-democratic constitutionality