Failure in Constitutionalism

Constitutional identity and political closure

The concept of constitutional identity is frequently invoked as a normative argument, both against sweeping constitutional changes from within, and against the authority of supranational bodies such as the EU. At the core of this argument often stands the idea that certain essential features of the constitution should never be capable of change from within the constitutional order itself but could only be changed through an act of constituent power. On this understanding, therefore, constitutional identity marks a sense of political closure. In my talk, I will challenge this understanding of constitutional identity, which creates perverse incentives for constitutional courts in liberal democracies and dangerous ammunition for politicians in illiberal democracies. At the same time, I will maintain that a different understanding of constitutional identity —one that is not tied to a substantive political closure— presents a more attractive version of the concept that equally offers itself to be employed normatively.