Disabusing Constitutional Identity? In Conversation with Julian Scholtes

The monograph The Abuse of Constitutional Identity in the European Union (OUP, 2023) by Julian Scholtes (Lecturer in Public Law, University of Glasgow) was published in September. In this latest RevDem Rule of law podcast, Oliver discuss constitutional identity and its implications for the Rule of Law and democracy in Europe today. Oliver Garner:  I found that your distinction between generative, substantive, and relational aspects of constitutional identity abuse is an impressive attempt to categorize such illegitimate practices systematically. How do these concepts advance our understanding of constitutional identity and its abuse? Do you believe they can be operationalized to allow the identification of abusive identity claims in practice? Julian Scholtes: I think we need to distinguish this idea of constitutional identity, that is quite commonly used in comparative constitutional law, as an analytical lens which allows us to look into the relationship between constitutions and the societies that they set out to order. There is a lot of scholarship on this, like Gary Jacobsohn, Michel Rosenfeld, and so on. On the other hand, there is a more normatively oriented argument from constitutional identity – a way of saying that the concrete manner in which we have organized our state is deeply intertwined with our particularities as a constitutional community, and that merits respect from other constitutional democracies. Those are two different things. When I talk about constitutional identity in the book, I almost exclusively use it as shorthand for this argument from constitutional identity. Much of what the book does is to try and outline the contours and the limits of that argument – under what circumstances can we expect other constitutional orders to legitimately yield authority to assertions of constitutional identity? I hope that we can arrive at a closer understanding of why we can plausibly describe certain constitutional identity arguments as abusive. I go about this in three dimensions: generative, substantive, and relational. In the generative dimension I ask: how has a constitutional identity claim come about? I inquire into the relationship between constitutional identity and constituent power, processes of constitution-making, and constitutional change, amongst other things. Then, in the substantive dimension, I ask: what does a constitutional identity claim entail? I inquire into the relationship between assertions of constitutional identity and the wider normative concept of constitutionalism. And then in the relational dimension, I ask: how is such a claim advanced? I go into the politics of judicial dialogue and the ability of constitutional orders to place their identity claims in relation to overlapping constitutional claims, for instance, from the EU. The biggest takeaway from the book for the politics around constitutional identity is that these assertions are a lot more contingent and capable of change than those who use them for leveraging their own authority would like us to think. Constitutional identity often goes hand in hand with the idea of unamendability – the idea that the aspects that we call constitutional identity are things that can never be changed from within the constitutional order. […]