Abusing Constitutional Identity

Abstract

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. 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.

Subject, sovereign, Antigone: Judicial subjectivity and determination of the law

“…11 As corroborated by numerous rulings of the CJEU 12 and the ECtHR, 13 the legal systems of both countries are "externally illegal", that is, some of their crucial norms, especially those pertaining to the organisation of the judiciary, clash with norms of external origin. Still, the Constitutional Court engages in a legal war with the European courts, trying to shield the Polish legal order from the effects of their scrutiny (see Dzięgielewska 2022, 97-98;Nelson 2023, 417-439) and playing the controversial card of constitutional identity (Sajo 2019, 3263, Avbelj 2020, 1025-1027, Scholtes 2021, 535-536, 545, Baudoin 2022.…”

European Yearbook of Constitutional Law 2022

“…82 Pech and Kelemen 2019, p. 61. 83 In the same sense, see Scholtes 2021. matter of blackletter EU law-Article 4(2) TEU is part of the Treaties, and it is also subject to the jurisdiction of the CJEU. Treaty reform resulting in the abrogation of Article 4(2) TEU is a completely unrealistic scenario, and therefore-as lawyerswe should acknowledge that constitutional identity exists as a legal notion.…”

Different Scopes and Implications (De Lege Lata)

“…556 Rosenfeld has distinguished between "repressive tolerance", if "imposed by the strong on the weak", which can be qualified as "paradoxical to the extent that tolerance of the intolerant may pave the way for the latter to take power and do 548 See also various contributions in Komárek and Avbelj (2012) and Walker (2016). See also Canihac (2021), as well as on 'constitutional identity ' Scholtes (2021). 549 Přibáň (2018), p. 162.…”