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. The book challenges that connection to some extent and induces us to think about constitutional identity as something more malleable, and more changeable, but no less worthy of respect and accommodation.

As to the second question, the book is decidedly not doctrinal. It does not provide a guide to the Court of Justice of the EU (CJEU) as to which constitutional identity claims should be knocked down and which should be upheld.

But I do think that the book provides a more or less effective guide or scheme that we can use for questioning whenever this language of constitutional identity is invoked.

 Where did you get that claim from? To what end are you invoking it? Are you advancing it to start a dialogue or to disengage from the EU’s authority right away? I think that could be quite useful as a scheme to provide guidance whether or not to recognize constitutional identity claims in that way.

What is the relationship between democracy and constitutional identity? Is constitutional identity generated by democratic choices, or is the exercise of democracy framed by the constitutional identity of a polity? And, on the subject of abusive claims, does the democratic input into abusive constitutional identity claims have any bearing upon their legitimacy?

Let me start with your first question about the relationship between democracy and constitutional identity. The obvious answer is that it is a bit of both.

Constitutional identity provides a frame for democratic institutions and it is also continually shaped by those institutions.

 But that is a statement that obviously requires a little bit more unpacking to mean anything. I discuss this in chapter four, where I dwell quite a bit on Carl Schmitt and his conception of constitutional identity, which, for better or for worse, continues to be the most influential theoretical frame for these discussions and has been hugely influential in, for instance, the German Constitutional Court’s jurisprudence (even though the court probably would not admit that!). Schmitt ultimately sees constitutional identity as something that is determined by the constituent power at the point of constitution-making. Once the Constitution is established, so is its constitutional identity and that identity then imposes boundaries upon the amendment powers of the legislature. In that sense, Schmitt portrays identity as something that is conclusively defined at the moment of constitution-making and as being influenced little by democratic institutions. Of course, Schmitt himself would say that this is a perfectly democratic conception of constitutional identity because constituent power itself is the ultimate exercise of democracy.

But there are two problems with that conception of constitutional identity. The first is that it is a very crude conception of constitutional identity that does not capture how we actually use that concept in the EU context. It only captures very basic choices, like the choice for a republic or a monarchy, or for a federal or a unitary state, etc. We seem to use constitutional identity also to discuss certain interpretations of fundamental rights, the meaning of human dignity, the concrete realization of the rule of law, the right to have an abortion, same-sex marriage, etc. These are clearly things that are, most of the time, not conclusively defined at the moment of constitution-making, but require concretization and refinement from the inside. That does not make them less pertinent to constitutional identity.

The second problem with this Schmittian conception of constitutional identity is legitimacy. If we see constitutional identity as a preordained frame for democracy, there is relatively little that provides legitimacy for constitutional identity. We can say that constitutional identity enjoys higher legitimacy because it is an exercise of constituent power, but what does that actually legitimize? How the German Constitution came about, for instance, does not exactly meet a high watermark of democratic legitimacy. I think that the legitimacy of a Constitution comes later than the constitutional moment – from within the constituted powers as the people within the constitutional order recognize that the Constitution works in a way that they can take ownership of and in a manner with which they can identify.

Now, what about the democratic credentials of abusive constitutional identity claims? Some argue that, for instance, since both PiS in Poland and Fidesz in Hungary have been repeatedly elected into office, there is no problem with their constitutional identity claims, and therefore they are democratically legitimate. But that portrays a very simplistic and, frankly, anti-constitutionalist view of what constitutional identity is.

Being in charge of the government does not also imply that you can freely decide upon the country’s constitutional identity.

The Hungarian government very much has that attitude though. They are amending the Hungarian Constitution at will, specifying different things to be part of Hungary’s constitutional identity. They did this with immigration and, more recently, they did it when their enshrined reactionary views on gender and family in the Constitution, specifically mentioning the words constitutional identity in the amendment. That almost leads to this idea of constitutional identity ad absurdum. It blows up the distinction between what is contestable policy and what is constitutional identity to a point where the two can not really be told apart anymore. That is something that strikes me as deeply authoritarian and anti-democratic, in a way.

Moving on to the European level, should the Article 2 TEU values be regarded as the constitutional identity of the EU? And do you think that the EU is capable of making abusive constitutional identity claims itself? For example, would it violate the relational dimension if the EU claimed absolute primacy, as this would foreclose the relative authority of the national level?

The EU is sort of already claiming absolute primacy, so I do not think that this necessarily is a problem. We have national constitutional orders also proclaiming that they are ultimately in charge and we have the European court doing the same. But of course the EU is capable of disregarding the relativity of its own authority. In that respect, the notion of autonomy of EU laws sometimes becomes problematic, for instance in the case of Opinion 2/13 on the ECHR accession.

There’s a lot of excitement about this idea of EU constitutional identity right now, at least since the judgment on the conditionality regulation. But I think that before we jump on that wagon we need to think a bit more deeply about what we mean by that concept and what we want to do with it. In many ways, there is a fundamental truth to the central importance of the values of Article 2 to the viability of the legal order of the EU. Adhering to these values, or at least perceiving adherence to these values, is the glue that allows Member States to yield authority to the EU and to one another legitimately. In that sense, the CJEU has a point when it speaks of Article 2 as being part of the identity of the EU.

But then the question arises: what do we do with that?

I think that there might be a temptation in scholarship to leverage notions of constitutional identity in order to channel Article 2 into some form of super-supremacy of EU law.

For example, constitutional identity could be used to demarcate the things that are absolutely not subject to, for instance, national identity reservations under Article 4(2) TEU, and not subject to any form of discussion between the CJEU and the national constitutional courts, or between the EU and the Member States in general. But that, of course, would come with the slight irony of inadvertently relativizing the supremacy of EU law in other areas – signaling that there is one thing that is absolutely not up for discussion, but everything else kind of is. At least from the perspective of the CJEU, that would be a significant reconfiguration of the meaning of the supremacy of EU law, and also of the scope of Article 4(2) which the court has so far interpreted very sparingly. So I am not quite sure that the court would want that. It will be interesting to see what is going to happen on that front and how this idea of an EU constitutional identity is going to be leveraged in different directions.

I was struck in the book when you discussed a quote by the Russian judge Valery Zorkin in which he critiques liberalism as seeking a “worldwide democratic empire” to replace the state. Do you believe that there is value to the concept of the state beyond it being a site for democratic self-determination, and does constitutional identity function to protect this value? Or do you think that any such ideas about this intrinsic value of the state in itself would necessarily lead to isolationism and what you call in the book “constitutional solipsism”?

I refer to Zorkin in the conclusion where I briefly discuss how Russia has also seized upon this notion of constitutional identity and abused it in a different, ECHR context. There is a lot of good work on this. Zorkin’s argument, to my mind, is quite crude, but interestingly the foremost defender of the state in the name of constitutional identity is actually the German Constitutional Court, which in the Lisbon judgment argued that Germany’s character as a state is also part of its constitutional identity. That is often derided in academic commentary and for good reasons – the court wrote this famous list of competences that Germany could never surrender to the EU, which has more than just a whiff of arbitrariness to it and also comes with the irony that the only way the court seems to be able to protect German democracy is by telling the democratic legislator all the things that it cannot do.

But, ultimately, to think of the state as anything but a creature of contingency is mistaken. That does not mean that it is not valuable. It is precisely this weight of contingency that makes it valuable. Despite all of its limitations, the state is still the most functional vehicle for democratic self-determination that we have come up with so far.

Many of the conflicts that we see between the EU and the Member States stem precisely from these irritations and disturbances that the EU has brought upon the state as the scheme of political cognition. Of course, many but not all of these irritations have been good – they have upset traditional ideas of absolute sovereignty, alerting democracies to the arbitrariness of democratic boundaries, and so on. Those are good things, ultimately. There is, of course, a more politically romantic conception of the state that almost presents the state as part of the natural order of the world. The state belongs to a nation, and a nation has a sort of predefined character that it must be able to unfold within the state. That, I think, is what someone like Zorkin has in mind when he talks about the democratic empire replacing the state, and that is deeply troubling in a lot of ways.

In the final chapter, I talk about the idea of constitutional solipsism – the idea that ultimately we can only see states as monadic bubbles that are unable to relate to one another. In other words, we are epistemologically unable to understand what is going on in Poland and therefore we should abstain from criticizing it. That is what people like the President of the Polish Constitutional Tribunal Julia Przyłębska lean into. At one point, she defended the judicial reforms in Poland by pointing to the diversity of legal cultures in Europe and saying that all of these legal cultures in Europe deserve equal respect. But that response is a complete escape into a kind of obscurantism that is simply meant to shield these reforms from any kind of criticism by blindly asserting that they are a matter of Polish legal culture.

First of all, I am not sure that many Polish constitutional lawyers would agree with that statement – I think that they would probably vehemently disagree. And, secondly, in the context of European constitutionalism, it ignores just how much of is a matter of phenomenology of perception.

What matters more than anything is whether other Member States perceive the Rule of Law to be impacted in Poland, or perceive judges to be independent.

That is what underlies, for instance, a judge’s decision about whether or not to execute an arrest warrant issued by Poland or send an asylum seeker back. That is something that comes with its own flaws and biases, but that is a different question. The bottom line is that, if you cannot explain to me understandably how that judge’s independence is safeguarded, and how that asylum seeker’s rights will be protected, then I as a national judge cannot legitimately cooperate with you. Simply pointing to some sort of inscrutable nature of the Polish legal culture does very little to actually assuage that problem.

On those risks of constitutional identity, you argue in the conclusion that you believe that it can petrify politics, vindicate authoritarianism, or seal off constitutions. Do you believe that constitutional identity can ever, on the contrary, actually function as a vehicle for democratic control over petrified liberal legal structures?

So, on the argument about how constitutional identity can petrify politics, I think that the way in which we currently use and talk about constitutional identity can do those things. We see constitutional identity as marking those things that are beyond reach for the democratic legislature, and beyond reach for constitutional amendments – the things that we cannot and must not touch. I think that is probably a fundamentally wrong way of thinking about constitutional identity, especially if we look at how the same notion is used in the European context as a way of leveraging the authority of national constitutional courts vis-à-vis the EU. The fundamental problem that comes with unamendability and constitutional contestation between Member States and the EU is that the more a constitutional court wants to leverage its authority vis-à-vis the CJEU, the more it also inevitably contributes to the closure of the democratic space.

The more clearly we define what constitutional identity is, the more we also define things that are off-limits for a democratic agency within the Constitution. That is collateral damage – it is small but it is damage, nevertheless, that we are doing to our democracies through this politics of constitutional identity.

That is the type of dynamic that authoritarians can abuse because it allows them to hit two flies with one swat – it allows them to fend off the EU and any potential democratic challenges. In that sense, I think we would do well to uncouple those things and understand constitutional identity in the EU as something contingent and capable of change rather than immutable.

As to your question about whether constitutional identity can conversely function as a vehicle for democratic control, I certainly think that constitutional identity has a role to play in moderating, for instance, excessive external influences on democracies. The Irish Supreme Court judgment in the Costello case last year is probably a case in point for that. So, the Irish Supreme Court used this notion of constitutional identity for the first time ever in that case which was about the Irish ratification of CETA, the trade agreement, and the threat of an investor tribunal, for instance, overriding an Irish Supreme Court judgment.

I thought that was a really interesting setting for constitutional identity to pop up because it seems to protect a concrete sense of constitutional ownership and agency more than any sort of particular encrusted constitutional essence.

The Irish case merits a lot more attention in general to my mind, simply because of how strong the emphasis on popular sovereignty in connection to Irish constitutional identity is. In that case, constitutional identity is seen as precisely encompassing the ability of the Irish people to change their Constitution in whatever way they want, as long as they do it through a referendum, and that entirely challenges these predominant notions of constitutional identity in a very productive way.

That is fascinating, it will be interesting to see if such claims do arise more regularly in the future. In the conclusion of the book, when you move on to considering recommendations, you argue that liberals should show a renewed openness to alternative conceptions of the constitutional space. Is this how to realize your argument for a “constitutional ironism” that relativizes claims to absolute ultimate authority and enables engagement with rival constitutional sites? Could Poland and Hungary be persuaded to emerge from their constitutional solipsism if they were to disentangle their elision of liberal democracy from the separate phenomenon of progressive politics?

This idea of “constitutional ironism” is something that I unfold in the second half of the book when I talk about how constitutional identity claims are actually advanced. The idea of ironism is something that I borrowed from Richard Rorty, the philosopher, who talks about ironism as an ideal attitude that liberals should have toward their convictions as something that they are convinced of but know is a contingent product of their environment, and that also means the recognition that there are other equally valid ways of making sense of the world. I think that is something that applies really well to how national constitutional courts and the CJEU should relate to one another: each has its own scheme of cognition, and each has its own way of making sense of the world around them because both of them look through different lenses.

I think that this idea of ironism is useful in describing a way in which we can relativize viewpoints and be aware of the fact that there are other ways of making sense of the world. That can help us to see constitutional identity claims not as assertions of ultimate authority, but as something that can be subject to negotiation and accommodation in a lot of different ways.

That is what I tried to hint at with this idea of constitutional ironism.

On the second point, I think that a fundamental rift has emerged with Poland and Hungary over the last few years, especially with Hungary. Victor Orbán always famously says that when Hungary overcame communism, they wanted to join the EU and the West because they wanted to become a free market economy, or a “normal country”, but what they did not want was multiculturalism, and [progressive politics]. There is, I think, an unshakable sense there that liberal constitutionalism inevitably comes with these types of things as well, and that therefore liberal constitutionalism must be rejected.

To my mind, first of all, this is a wrong view. Liberal democracies fend off immigration all the time. Liberal democracies are hostile to immigration. Liberal democracies can legislate, for instance, against same-sex marriage etc. Whether or not they should or should not do so is a different question. But to say that these things are fundamentally incompatible is not necessarily true. This is not a good reason to justify why judicial independence should be undermined, or why the government should effectively take control of the whole apparatus of the state. So I think that this is a false argument that these governments are making in a lot of ways.

This transcript has been edited for length and clarity.

In collaboration with Lorena Drakula.

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