Two Ideas of Constitutional Identity

“Two Different Ideas of Constitutional Identity: Identity of the Constitution v. Identity of the People” José Luis Martí Associate Professor of Legal Philosophy at Pompeu Fabra University of Barcelona. I want to thank Alex Sáiz Arnáiz for having organized the conference at which a previous version of this paper was presented. That was a much needed initiative, and this issue still needs more discussion both in Europe and in America. I want to thank also Carina Alcoberro for arranging the collection and publishing of these papers, and to Julie Scales for her invaluable help in editing the text and avoiding my infelicities in English. I finally want to mention Andrew Williams, with whom I discussed some of the early ideas which were at the basis of my participation in the conference, and have somehow pervaded in this paper. (Published in Alejandro Sáiz Arnáiz and Carina Alcoberro (eds), National Constitutional Identity and European Integration, Antwerp: Intersentia, 2013: pp. 17-36) 1. INTRODUCTION The idea of constitutional identity is not new, As far as I know, it was developed for the first time by the German Constitutional Court in the 1950s, thence inaugurating a long jurisprudence that has been considerably influential. For the leading cases of such jurisprudence, see the Southwest Case, 1 BverfGE 14 (1951); and the Privacy of Communications Case (Klass Case), 30 BverfGE 1 (1970). This jurisprudential line is complemented by several decisions about the European Union, like Solange I, Solange II and, finally, the most direct precedent, the Maastricht Case, 2 BvR L 134/92 (1993). For the influence of such jurisprudence over other constitutional systems like India’s and Ireland’s, see G.J. JACOBSOHN, ‘Constitutional Identity’ (2006) 68 The Review of Politics, pp. 361-397 and M. TUSHNET, ‘How Do Constitutions Constitute Constitutional Identity’ (2010) 8 (3) International Journal of Constitutional Law, pp. 671-676.. In the Anglo-American world, this idea has also captured some attention in recent decades by some scholars and theorists. For an overview, see M. Rosenfeld (ed.), Constitutionalism, Identity, Difference, and Legitimacy, Durham: Duke University Press, 1994; M. ROSENFELD, ‘Constitutional Identity’ in M. Rosenfeld and A. Sajo (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford 2011; G.J. JACOBSOHN, ‘Constitutional Identity’ (2006) 68 The Review of Politics, pp. 361-397; and G.J. JACOBSOHN, Constitutional Identity, Harvard University Press, Cambridge (Mass.) 2010. The doctrine of constitutional identity as such was invented by the German Constitutional Court. But it connects with an important and much older tradition of thought on the idea of political identity. One of the first historical references to this idea can be found Aristotle; and more concretely, in his Politics, book 3, when he says “On what principle ought we to say that a State has retained its identity, or, conversely, that it has lost its identity and become a different State?” (quoted by G.J. JACOBSOHN, ‘Constitutional Identity’ 2006, at 364). but in the last few years it has gained momentum and attracted many European constitutional lawyers and students of European law, especially after the Lisbon Ruling, made in June 2009 by the German Constitutional Court. Lisbon Case, BVerfG 30.6.2009, 2 BvE 2/08, para. 1 – 421. In such an important landmark decision, the Karlsruhe Court applied and developed its own old doctrine on German constitutional identity, and established strong limits to the process of political integration in the European Union (EU). In effect, such kind of identity was regarded as incompatible with further levels of political integration and additional transference of power from Germany to the EU. In the words of a very prestigious analyst, “With its ruling, the Court has expressed its wish to prevent the European Union from developing its own democratic legitimacy as a second pillar of a European compound system” C. TOMUSCHAT, ‘The Ruling of the German Constitutional Court on the Treaty of Lisbon’ (2009) 10 (8) German Law Journal, pp. 1259-1261, at 1262. . This is how such an abstract idea as the notion of constitutional identity became suddenly of the highest political importance for all of us in Europe. This is not to say that before that moment it was not important at all. But at least in the European context, the idea stopped being merely a jurisprudential construction with some importance for constitutional law and became a real and powerful obstacle to the process of political construction of Europe. Despite its significance, the very notion of constitutional identity remains quite unclear. What exactly is constitutional identity? What does ‘identity’ mean? Whose identity or the identity of what? Who is allowed or entitled –granted legitimacy- to identify or determine such constitutional identity, especially in light of disagreements? Can our constitutional identity evolve? Can it be legitimately transformed? And, if so, how it can? None of the German Court’s leading decisions in this jurisprudence, including the Lisbon Ruling, do a good job in clarifying all these questions. And besides what the German Constitutional Court might stipulate in this respect, it is not totally clear how this idea should be understood in other European countries, and what it could be its application there, let alone in the rest of the world. If the German Court is right in establishing some limits to the construction process of the EU based on the protection of the German constitutional identity, the same consideration would seem to apply to the protection of other national constitutions within Europe. But is this so? In a very recent overview, one of the American experts on the idea of constitutional identity affirms that this “is an essentially contested concept as there is no agreement over what it means or refers to” M. ROSENFELD, ‘Constitutional Identity’ in M. Rosenfeld and A. Sajo (eds.), The Oxford Handbook of Comparative Constitutional Law, cit. in footnote 2, p. 756.. Another American specialist, in another important recent article, assumes from the beginning that the concept is far from clear, and argues that “clarifying the concept of constitutional identity should engage the interest of constitutional theorists” G.J. JACOBSOHN, ‘Constitutional Identity’ (2006), cit. in footnote 2, p. 361; see also G.J. JACOBSOHN, Constitutional Identity, Harvard University Press, Cambridge (Mass.) 2010.. I agree with these two American experts, and I would say in addition that the existing confusions and obscurities in this concept are even greater in the European discussion than in the American debate. Both of them, though, are fundamentally affected by a basic ambiguity, or so I will argue. The notion of constitutional identity may refer to at least two different ideas: the identity of the constitution and the identity of the people or the political community ruled by such constitution. Rosenfeld, conscious of the existing ambiguity and confusion about the concept, proposes distinguishing three different “general meanings” attached to such concept: i) the “identity that derives from the fact of having a constitution”; ii) “the content of a constitution provides distinct elements of identity”; and iii) “the context in which a constitution operates seems bound to play a significant role in the shaping of its identity” M. ROSENFELD, ‘Constitutional Identity’ in M. Rosenfeld and A. Sajo (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford 2011, cited in footnote 2, p. 737. My distinction here cannot be reduced to his at any respect. His second “general meaning” is intertwined with my two ideas; part of his third one overlaps with part of my second one; and I am more sceptical than he is about the role of the diverse collective cultures of several subgroups in the shaping of the constitutional identity. My aim in this short paper is to explore these two different ideas of ‘constitutional identity’ from the perspective of legal and political philosophy. I am not interested here in disentangling how particular courts may come to understand this notion or how it might find a place in a particular constitutional tradition. I will take some distance, then, from concrete German constitutional jurisprudence. I think the task of conceptual clarification is necessary for, and prior to, any attempt to make sense of this idea, and any assessment of it. I will not resist in my conclusions, though, the opportunity to make some critical comments on some aspects of the argumentation advanced by the German Constitutional Court in the Lisbon Case, in light of the distinctions presented here. 2. TWO IDEAS OF “CONSTITUTIONAL IDENTITY” Several meanings of the idea of “constitutional identity” seem to be intertwined and undistinguished in most academic literature and jurisprudential decisions. Just to mention some of them: the identity of a constitutional text, the identity of a constitutional practice or tradition, the identity of the core values and principles of a constitution, the identity of the constitutional subject, the national identity, the (non-necessarily-national) identity of a political community, the religious, ethnic or cultural identity of the whole society or of some subgroups in the society, etc. All these meanings are different, and the task of disentangling them is not easy, partly because some of them are not totally independent from each other. But they can be restated according to a basic distinction between two different ideas of constitutional identity: the identity of the constitution and the identity of the people. The notion of constitutional identity normally refers to something essential or even constitutive, something permanent or stable –if not directly immutable- in a constitution, which somehow relates to the essence of a particular political community. This ‘constitutive essence’ is supposed to be the core of the constitution, in the sense that any change to it entails not only an amendment of the constitution, but a whole revolution See Tulis criticizing Ackerman for not leaving room for the distinction between amendment and revolution in light of constitutional identity J. TULIS, ‘AMENDING AMERICA: Review of Bruce Ackerman's We the People: Foundations’, (1993) 55 (3) Review of Politics, pp. 540-543; for similar ideas see also J.E. FINN, ‘Transformation or Transmogrification? Ackerman, Hobbes (as in Calvin and Hobbes), and the Puzzle of Changing Constitutional Identity’ (1999) 10 Constitutional Political Economy, pp. 355–65 and G.J. JACOBSOHN, ‘Constitutional Identity’ (2006) 68 The Review of Politics, pp. 361-397, cited in footnote 2.. The elements of the constitutional identity of a particular country are so fundamental that they should be specially preserved and protected from change. And that is why they are often entrenched within the constitution itself. Their continuity is, in some sense, the continuity of the polity as a whole. A constitutional change affecting this core redefines the “fundamental political attributes that make a new polity truly new” J. TULIS, ‘AMENDING AMERICA: Review of Bruce Ackerman's We the People: Foundations’, (1993) 55 (3) Review of Politics, pp. 540-543, 542, cited in footnote 9.. But the identity of the constitution, however it is defined, and the identity of the people ruled by such constitution or the identity of the polity seem to be very different things. These two ideas usually come together, particularly in the European discussion. Thus, the German constitutional identity, according to this doctrine, establishes some limits to what the European Union is entitled to do or is allowed to become. But what is the German constitutional identity and where does it come from? Is it a defining feature of Germany as a community or of the German constitution as a legal text? Both the German Court’s decisions and the academic analyses refer to concrete elements of the German constitutional text, like its basic and unamendable clauses See, for instance, A. VON BOGDANDY, ‘Identidad constitucional. Exploración de un fenómeno ambiguo con ocasión de la política de identidad europea de lege lata y lege ferenda’, (2005) 75 Revista Española de Derecho Constitucional, pp. 9-32; A. VON BOGDANDY, ‘The European Constitution and European Identity: Text and Subtext of the Treaty Establishing a Constitution for Europe’, (2005) 3International Journal of Constitutional Law, pp. 295-315; A. ALBI and P. VAN ELUSWEGE, The EU Constitution, National Constitutions and Sovereignty: An Assessment of a ‘European Constitutional Order”’, (2004) 29 European Law Review, pp. 741-765; and L.F. BESSELINK,. ‘National and constitutional identity before and after Lisbon’ (2010) 6 (3), Utrecht Law Review, pp. 36-49. . But in response to this jurisprudence it is often argued that the European Treaties themselves are explicitly respectful of the national diversity in Europe and the national identity of every state member, meaning that there is no contradiction between EU law and the constitutional identity of such Member States For instance, VON BOGDANDY, ‘Identidad constitucional. Exploración de un fenómeno ambiguo con ocasión de la política de identidad europea de lege lata y lege ferenda’, (2005) 75 Revista Española de Derecho Constitucional, pp. 9-32; A. VON BOGDANDY, ‘The European Constitution and European Identity: Text and Subtext of the Treaty Establishing a Constitution for Europe’, (2005) 3International Journal of Constitutional Law, pp. 295-315; A. SAIZ ARNAIZ, ‘L’identité nationale et le droit de l’Union européenne dans la jurisprudence constitutionnelle espagnole’ in L. Burgorgue-Larsen (ed.), L’identité constitutionnelle saisie par les juges en Europe, Editions Pedone, Paris 2011, pp. 101-132, F. CASTILLO DE LA TORRE, ‘La Sentencia del Tribunal Constitucional Federal Alemán de 30.06.2009, relativa a la aprobación del Tratado de Lisboa – Análisis y comentarios’ (2009) 34 Revista de Derecho Comunitario Europeo, pp. 969-1010, A. CANTARO, ‘Democracia e identidad constitucional después de la ‘Lissabon Urteil’. La integración ‘protegida’’, (2010) 13 Revista Española de Derecho Constitucional Europeo, pp. 121-164.. The problem –the source of much of this confusion- lies in the idea of constitution itself. The constitution is not a mere legal norm, but the fundamental norm which constitutes the people, the political community as a whole. Thus, a change in the essence of such constitution of the people seems to provoke a change in the identity of the people itself. This is how Justice Kennedy’s statement made in an interview in The New Yorker (on September 12, 2005) can be understood when he contested Justice Scalia’s view on the influence of other constitutional traditions over the US Supreme Court’s jurisprudence: “We have a legal identity, and our self-definition as a nation is bound up with the Constitution.” Cited by G.J. JACOBSOHN, ‘Constitutional Identity’ (2006) 68 The Review of Politics, pp. 361-397, p. 384. . In modern constitutional democracies, there is no easy demarcation between the identity of the constitution and the identity of the people. But they are two different things, though. And any plausible theory of the idea of constitutional identity, as well as any serious jurisprudence on this topic, should provide a clear distinction between them. As I will show later, very important consequences follow from an insufficient demarcation, and some of them lie at the foundations of the German Constitutional Court’s red light to the political construction in the EU. 2.1. The identity of the constitution When we talk about constitutional identity, the word ‘identity’ seems to refer to certain defining features of something. It is for having those features that this something is this something, and not another thing. In addition, we seem to refer to the identity of the constitution itself, not to other forms of collective identity G.J. JACOBSOHN, ‘Constitutional Identity’ (2006) 68 The Review of Politics, pp. 361-397; M. ROSENFELD, ‘Constitutional Identity’ in M. Rosenfeld and A. Sajo (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford 2011. . Constitutional identity is what makes of that constitution that constitution. That is the reason why, one might say, it is called constitutional identity. The German constitutional identity, under this first reading, would be then the identity of the German constitution. And this is –or, at least, it can be- certainly different from the identity of the German nation or the German people M. ROSENFELD, ‘Constitutional Identity’ in M. Rosenfeld and A. Sajo (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford 2011, p. 758; see also M. ROSENFELD, ‘Modern Constitutionalism as Interplay between Identity and Diversity’ in M. Rosenfeld (ed.), Constitutionalism, Identity, Difference, and Legitimacy, Durham: Duke University Press, 1994 and M. ROSENFELD, The Identity of the Constitutional Subject. Selfhood, Citizenship, Culture and Community, Routledge, London 2010. . As a matter of fact, some nations or political communities may have their own collective identity without actually having a constitution at all. In such cases, there might well be a national identity, or a political identity, or even a legal identity, but no constitutional identity. But what exactly is the identity of a constitution, then? It seems clear that not every single element in the constitution is part of its constitutive, or essential, or definitional core. Not all clauses and principles are equally important. Not any “change in the constitution” entails a “change of constitution”. That is the difference mentioned above between two types of constitutional change: mere amendments and constitutional revolutions. The latter, which produce a change of constitution, occur when the constitution is totally replaced by a new one, but also when some essential part of the old one is substantially amended J. TULIS, ‘AMENDING AMERICA: Review of Bruce Ackerman's We the People: Foundations’, (1993) 55 (3) Review of Politics, pp. 540-543; J.E. FINN, ‘Transformation or Transmogrification? Ackerman, Hobbes (as in Calvin and Hobbes), and the Puzzle of Changing Constitutional Identity’ (1999) 10 Constitutional Political Economy, pp. 355–65.. The underlying logic of this distinction is clear. The idea of ‘constitutional amendment’ itself “presupposes a constitution whose identity persists over time.” I amend something that is pre-existing and that will pervade after the change. The object I amend, let’s say x, was x before the amendment and will continue to be x after and despite such amendment. In contrast, the notion of constitutional revolution “presupposes the disjunction of identities” J. TULIS, ‘AMENDING AMERICA: Review of Bruce Ackerman's We the People: Foundations’, (1993) 55 (3) Review of Politics, pp. 540-543; J.E. FINN, ‘Transformation or Transmogrification? Ackerman, Hobbes (as in Calvin and Hobbes), and the Puzzle of Changing Constitutional Identity’ (1999) 10 Constitutional Political Economy, pp. 355–65.. I replace constitution x with constitution y. And I can do it in two different forms: I can just leave constitution x aside and pass a new constitution y; or I can just introduce some significant changes in x. In order to produce a revolution, these changes should of such entity and importance that the resulting constitution would be another one. Some kind of constitutional changes, therefore, cannot be properly described as amendments, even if they have been introduced following the amendment process established by the old constitution. They represent a constitutional revolution. This produces, of course, some paradoxes or conundrums around the idea of constitutional identity. Some scholars have argued that some amendments of the constitution x might be unconstitutional even if they have been introduced following the due constitutional process established by x, because they might entail the end of the old constitution and its replacement by a new one (see M. STOKES PAULSEN, ‘Can a Constitutional Amendment Overrule a Supreme Court Decision?’ (2007) 24 (2) Constitutional Commentary, pp. 285-290). Might there be entire constitutions that could be seen as unconstitutional? This first idea of constitutional identity reduces it to the core of essential or definitional elements in a constitution. In this sense, it can be seen as a specific case of a more general phenomenon we might call “legal identity”. Any legal norm, whether a constitution or a statute or even a lower legal disposition, may have its own core of essential elements which define its identity. In effect, it is not meaningless to ask for example what the essence or the identity of a criminal code is. What is it that makes that criminal code that criminal code? There must be some core elements in it, some definitional features, to the point that any substantial change to such core would be considered a whole replacement of criminal code. But what kind of elements can be definitional or essential in a constitution? If we identify the constitution with the constitutional text, its essential elements would therefore be a subgroup of written dispositions among all those which form the whole text. The task of determining the identity of the constitution would simply consist in identifying such core of dispositions considered as essential for the text. Admittedly, some discourses on constitutional identity rely on this idea of the constitution as a text. But important as the constitutional text is, we cannot reduce the idea of a constitution to the text itself. First, not all constitutions are written. Why should implicit constitutions like the British one be denied the capacity to have some kind of identity? Rosenfeld, for instance, mentions the British unwritten constitution as constitutive of one of his seven distinct constitutional identity models, M. ROSENFELD, ‘Constitutional Identity’ in M. Rosenfeld and A. Sajo (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford 2011, p. 764. But if they may have one, as everybody would accept, then the idea of constitutional identity cannot be reduced to the identity of the constitutional text. Second, if we reduce the identity of the constitution to (part of) the text and the words expressed in it, we should conclude that any significant rewording of some essential clause or any deep formal alteration of the text’s structure would produce a transformation of the constitutional identity. But it seems clear that some rewordings and some structural changes may change nothing in the meaning of the constitutional clauses, but only their form. I do not deny the possibility of using a very technical notion of the idea of constitutional identity according to which the formal aspects of a constitution may form part of its essence or definitional features. A huge formal restructuring of the text, then, would produce automatically a “change of constitution”. Such a notion could be useful for those who study different formal models of constitution. I do not think, though, that this is the notion being used by those who talk about constitutional identity. And third, it is quite obvious that the “constitution” is not merely a legal text. As any constitutional lawyer knows, the constitutional text needs to be interpreted. The text is just a collection of words, but these words need to be interpreted to generate norms. And it is the norms, not just the words, what embody the essence of a constitution and can be seen as its identity. Any constitution is a text plus a set of crystallized practices, including a variety of things like different interpretations of the text, the particular jurisprudence set by the courts as to how interpret such text and some basic interpretive assumptions shared by the legal community, including some basic normative values and principles, etc. Thus, if we abandon this naïve conception, and conceive the constitution not just as a text, but as a constitutional norm, as a complex set of values, principles and rules, For the distinction between rules and principles, see R. DWORKIN, Taking Rights Seriously, Harvard University Press, Cambridge (Mass.), 1977. then the essential features of the constitution that constitute its identity will be a subgroup of such elements, and not merely of clauses or written dispositions. In other words, the constitutional identity would be constituted by a set of core values, principles and rules. Before identifying these core elements, though, it is necessary to interpret the constitution, that is, to determine the whole set of values, principles and rules which form the constitutional norm. In those countries in which there is a canonical constitutional text, the way in which the text is written and structured can be very important to guide our interpretations. But this will not be the only element we have to take into account when determining the constitutional identity; and it is not even the decisive one. And this is not an easy task. As some have argued, it is a task that can be hardly done without recurring to political as well as moral arguments, since constitutional clauses normally refer to political and moral values and principles. Finding out what these clauses mean is not simply a matter of finding out the original intention of the framers or taking a poll asking the population R. DWORKIN, Taking Rights Seriously, Harvard University Press, Cambridge (Mass.), 1977. . If we need to interpret what democracy is when it is mentioned by the constitution as an essential value, we must necessarily engage in political normative discussions about the concept of democracy –which is a normative concept. And it is not sufficient to ask what the framers understood by the word “democracy” or what most citizens would understand today. This does not mean that constitutional interpreters must engage in arguments about what is objectively correct in non-situated morality and political morality. And it is not a concession to natural law theory. The values expressed and protected by a particular constitution may be objectively correct or not. The constitutional interpreter is not allowed to assess them from a non-situated perspective, nor from a personal point of view. Her task is to identify those values and principles positively enacted by the constitution –by the constitutional text and/or by the constitutional practice-, whether she finds them correct or not, or whether they are in accordance with her personal view. But identifying those values and principles positively enacted by a constitutional practice is not an easy task, and it requires at some level engaging in moral and political argument. A constitutional lawyer must admit that the principle of human dignity is inherent to the German constitution, which explicitly enacts it, even if she –for instance, as utilitarian herself- disagrees with the view that morality should be based on such idea. To determine, though, the specific content of that principle, and therefore of the German constitution as a whole, she must engage in moral argumentation. From her personal point of view, the moral view adopted by the German constitution would be a wrong view. But she needs moral arguments to interpret such constitution. The determination of the substantive content of a constitution involves the authoritative interpretation of the words expressed in the text based on a complex constitutional practice. See W.F. HARRIS II, The Interpretable Constitution, Johns Hopkins University Press, Baltimore 1993. But things are worse when we try to determine the constitutional identity. Once we have identified the set of values, principles, and rules that form the constitutional norm, then it is time to make an authoritative judgment about what parts are essential or definitional in such norm. How essential is an element of the constitution is another difficult question. It is also probably a matter of degree. We may find some principles or values more essential than others. It is therefore a matter of establishing a threshold to single out the essential elements from the non-essential. But how can we draw such a demarcating line? In most cases, most essential elements come in the form of values, and some in the form of principles. That is the case, for instance of the values of democracy or human dignity, or the principles contained by the bill of rights. Rules are usually left for the organic parts of the constitution in which it is hard –although not impossible- to find a core definitional element. But this is not enough. What is what makes an element be essential or definitional for the constitution? And how can we make such a judgment without engaging again in moral and political argument? Once more, this is not to say that the interpreter needs to infuse her own moral views on the determination of the constitutional identity, nor that such identity needs to be objectively correct. See the previous footnote. The task of determining the essence or the identity of a constitution is relative to a particular constitutional practice or project and needs to identify the core elements in such practice, whether morally correct or not, whether in accordance with the interpreter’s moral view or not. Imagine I think that the best way of honouring the value of democracy is through implementing a parliamentary system, instead of a presidential one. Now I have to describe the American constitutional identity. First of all, I cannot overlook the fact that the American constitution establishes a presidential system, and not a parliamentary one, even if I think this is wrong from a political morality perspective. And second, and more importantly now, I cannot leave the presidential system out of the American constitutional identity just because I do not personally agree with it. I need some other independent argument to do this. According to Laurence Tribe, “[T]he very identity of ‘the Constitution’—the body of textual and historical materials from which [fundamental constitutional] norms are to be extracted and by which their application is to be guided— is . . . a matter that cannot be objectively deduced or passively discerned in a viewpoint-free way” In L. TRIBE, ‘A Constitution We Are Amending: In Defense of a Restrained Judicial Role’, (1983) 97 Harvard Law Review, pp. 433-445, cited by G.J. JACOBSOHN, ‘Constitutional Identity’ (2006) 68 The Review of Politics, pp. 361-397, p. 361. . One way of establishing the threshold between the essential elements and the non-essential ones is to pay to attention to what the constitution itself says. They normally say nothing explicit. But most of the time they establish different degrees of protection to different parts of the constitution. As it is well-known, the German constitution declares some clauses as unamendable. That is basically the case of the principle of dignity, democracy and rule of law and federalism. And they are precisely what German jurisprudence identifies as German constitutional identity. In effect, if a constitution declares some of its parts unamendable, it seems plausible to assume that they are the elements envisaged by the constitutional author or power as essential. While there might be other reasons to absolutely entrench some constitutional clauses, one aim certainly might be to preserve the essence or identity of the constitution. Things are not so easy in those other countries in which there are not unamendable clauses. In the case of the Spanish constitution, for instance, any of its parts can be amended. Some clauses are entrenched, that is true, since the amendment process required to change them (Article 168) is considerably more difficult and costly than the general one (Article 167). The entrenched clauses are those establishing the bill of fundamental rights, the principles of a democratic and social state, the idea of popular sovereignty, the unity of the nation, or the rule of law, but the monarchy, the colours of the flag, the official status of Spanish language and the capital being situated in Madrid are also equally deeply-rooted. Then, the Spanish constitutional identity, it can be said, is attached to, or made up of, this set of values, principles and rights A. SAIZ ARNAIZ, ‘L’identité nationale et le droit de l’Union européenne dans la jurisprudence constitutionnelle espagnole’ in L. Burgorgue-Larsen (ed.), L’identité constitutionnelle saisie par les juges en Europe, Editions Pedone, Paris, 2011, pp. 101-132. . But objections could still be raised to this claim. Why should all these things be considered an inherent part of our constitutional identity? Are the monarchy and the colours of the flag so essential and constitutive of what we are? Along another line, some constitutional elements, like the special territorial distribution of powers in Spain called “the state of autonomous communities”, which is a quasi-federal model, is not entrenched in one of those super-protected clauses by Article 168, but it should probably be seen as essential for our constitutional project. Article 2, which is entrenched and protected, establishes that “The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognises and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all”. Then, some kind of territorial distribution of power and recognized self-government would be a constitutional essential, but not the concrete design of the “autonomous communities” which is characteristic of the Spanish constitution. It is so characteristic that Rosenfeld mentions it as constitutive of the distinctive Spanish constitutional model (M. ROSENFELD, ‘Constitutional Identity’ in M. Rosenfeld and A. Sajo (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford, 2011, p. 764). The superior entrenchment of these parts is certainly a clue of how important they are –from the point of view, at least, of the framer-, but it is not a definitive argument or reason to consider all of them as part of the Spanish constitutional identity There might be reasons to entrench some clauses which do not depend from the fact that such clauses establish essential principles, but just reflecting the framer’s will of settling certain issues and giving them certain stability just for the sake of efficiency. That could be the case, for instance, with the Spanish flag’s colours or the capital being situated in Madrid. We would do better not to discuss issues like these all the time, not because they are essential to our project, but just not to waste our time. On the other hand, we can easily imagine reasons not to entrench some clauses even if they are essential for us. For instance, we might have legitimacy concerns about counter-majoritarian institutions, or we might simply prefer not to entrench some clauses because we expect them to need to be adapted to changing circumstances. . This should be, at least, open to further argument. And the same could be said, actually, in relation to the German constitution. The fact that some clauses are declared unamendable is a good indicator of how essential they seem to be. But that is not decisive argument. There might be the case that some unamendable clauses could express non-essential values See the previous footnote.. And again, this means that we need an independent argument to find out what are the essential features or elements of a constitutional norm. But once we have identified those elements (namely, constitutional values and principles) which are essential to the constitution, we still have to make a final judgement as to how substantial an amendment of one of these elements needs to be to alter the constitutional identity altogether. Again, it will be a matter of determining a threshold in a gradual scale. No one single change in one of the clauses expressing an essential value or principle would entail necessarily a threat to the identity of the constitution. The suppression of democracy would be a case of revolution. But what is democracy? A change in the electoral system, even a significant one, may certainly entail a change in our democratic system, but not necessarily a revolution in our identity. What if the second chamber in a bicameral system, like the Spanish Senate, is suppressed –as some people are claiming? Is it sufficiently significant? If one equates the essential content of the Spanish constitution with those clauses which are especially entrenched, the response would be negative. The Senate is mentioned and regulated in some articles which do not have special protection. But the same applies to the Congress, the other chamber. So apparently both chambers could be suppressed with no effect on the constitutional identity of Spain. And this sounds absurd. And what about abandoning the parliamentary system for a presidential one? Or what if we amend the constitution to introduce some limits to the freedom of speech, perhaps with the aim of strengthening the protection of some of its instances over others? When can we say that an amendment of the bill of rights represents a challenge to an essential feature of our constitutional norm? In conclusion, this first idea of constitutional identity depends on a set of values and principles expressed and protected by the constitution which are considered essential to the whole project. Once we identify the substantive content of the constitutional norm, we still have to determine two different thresholds in order to identify its identity: i) what elements of the constitution are essential or definitional, and ii) how much these elements must be changed to produce a of transformation of such identity. The task of determining both thresholds depends largely on moral and political arguments about values and principles. When John Rawls, for instance, advances his famous understanding of the ‘constitutional essentials’, he is thinking in the elements that any political liberal society should envisage as the essence of its constitution. And his argument is one of political morality. He is not specifically making an argument about the American constitution; that is true. But what he says is meant to be applicable undoubtedly to the American constitutional identity. And those interested in identifying such constitutional identity should probably pay attention to what he said about the constitutional essentials. See J. RAWLS, Political Liberalism, The Belknap Press of Harvard University Press, Cambridge (Mass.) 1993. One might deny that we as interpreters of a particular constitution need to involve ourselves in political argument at all. All what we need to do is to ask the Spanish people. If they see the existence of the Senate as constitutive of their identity, then it is part of their constitutional identity. But this response is problematic. It seems that we have then moved from the idea of the identity of the constitution to the idea of the identity of the people. And they certainly are two different ideas. One thing is the identity of the Spanish nation or the Spanish political community, as will be developed below, and quite another the determination of the essential or core values expressed in the Spanish constitution. They are different and they may actually differ. The objector might reply to this that we should not ask the people what they believe constitutes their identity as a people, but precisely what they believe is the core of essential values expressed in their constitution. But this is a response to a different question, the question of who is granted legitimacy or entitled to have the last word in determining the identity of the constitution. We may respond that, given the political importance of that question, the ultimate authority on this should be the people, and not any court or constitutional lawyer. But one thing is to select the ultimate interpretive authority and quite another is how this authority is going to know what the identity of the constitution is. What type of criteria the people may use to identify their constitutional identity, which do not collapse with the idea of the identity of the people itself. In addition, we arrive here to a typical conundrum in constitutional theory. On the one hand, if the people we are asking are indeed the actual authors of the constitution, then it might make sense to ask them what they meant, what they had in mind, when they drafted the constitution. But, first, this is never the people we are asking, because even if they are still alive –in the Spanish case, some of them still are- we are not interested in knowing what the few people who literally drafted the constitution had in mind when doing it. We do not see it as relevant for our purposes. And second, even if we refer to the whole generation who eventually approved the constitution in a referendum, why should their opinion be relevant and bind us today M. TUSHNET, ‘How Do Constitutions Constitute Constitutional Identity’ (2010) 8 (3) International Journal of Constitutional Law, pp. 671-676.? On the other hand, if the people we are asking are not the authors of the constitution in the literal sense, but just the current generation living under the document, it continues to make sense to differentiate two separate issues here. One question is: what is the identity of the particular constitution which is being enforced in Spain since 1978. Quite another is: what are the political values and principles that the Spanish people of 2012 envisage as essential. It might be the case that the identity of the Spanish constitution so understood –as a set of political values and principles- is no longer endorsed by the Spanish people. If so, these people should certainly replace the constitution with a new one expressing the values they favour. And that would be a constitutional revolution. The relevant question regarding the identity of the 1978 constitution is, then: what are the core values and principles expressed in such constitution, and whether we endorse them or not? We can also address this question to the current people of 2012, of course. But what kind of arguments can these people use, again, to identify these values and principles as the essence of their constitution? Again, not other than political and moral arguments combined with legal ones. This first idea of constitutional identity as the identity of the constitution is certainly present in German jurisprudence as well as scholarly literature about this concept. According to such idea, our constitutional identities depend largely on the values and principles enacted and protected by, and taken to be essential for, our own constitutions, whether they are objectively correct or not A corollary of this is that the idea of constitutional identity does not imply any intrinsic value. Must we care about the preservation of the identity of our constitutions? It will depend on whether this identity is valuable on an independent basis, that is, if the values which define our constitutional identity are themselves valuable from a political and moral point of view. And this is not necessarily the case.. As we have seen, the task of determining this identity is not easy at all; and it involves complex interpretations and the use of political and moral as well as legal arguments. This notion is just a special case of the more general concept of legal identity. It makes perfect sense to ask about the identity of a criminal code in terms of the essential values and principles embodied in such code. But then, more interestingly, there is no contradiction in affirming that the identity of the Spanish criminal code is similar to, or even the same as, the identity of the German code, if it is the case that both codes express and protect the same kind of values and principles. The only significant difference would be that one code would be the German code and the other the Spanish code, so they would apply to different peoples in different territories, but no other essential difference would exist between them. The same conclusion must apply, of course, to the identity of the constitution. It is actually puzzling that what is considered as the identity of the German constitution, the quintessence of the German constitutional endeavour, is more or less substantively the same as the Spanish constitutional identity. In effect, both constitutions share more or less the same set of core values and principles. Does it mean that Germans and Spaniards have the same constitutional identity? It seems so, except for the fact, of course, that they are addressed to different subjects in different territories. Is there any relevance in this fact? Does our constitutional identity then depend on who we are as a people? 2.2. The identity of the people One respect in which constitutions are not similar to any other legal norm is precisely that they are the fundamental norm that constitutes the state, the political institutions, the legal powers and many other things. And the constitution is also the norm that constitutes the people to which it is addressed, the very people who are subject to it. That is why the idea of constitutional identity can also be conceived quite naturally as the identity of the people or “the identity of the constitutional subject” M. ROSENFELD, ‘Modern Constitutionalism as Interplay between Identity and Diversity’ in M. Rosenfeld (ed.), Constitutionalism, Identity, Difference, and Legitimacy, Durham: Duke University Press, 1994.: M. ROSENFELD, ‘The Identity of the Constitutional Subject’ (1995) 16 Cardozo Law Review, pp. 1049-1109; M. ROSENFELD, ‘The Problem of ‘Identity’ in Constitution-Making and Constitutional Reform’ (2005) Working Paper at the Jacob Burns Institute for Advanced Legal Studies, Benjamin N. Cardozo School of Law, n. 143; M. ROSENFELD, The Identity of the Constitutional Subject. Selfhood, Citizenship, Culture and Community, Routledge, London 2010; M. ROSENFELD, ‘Constitutional Identity’ in M. Rosenfeld and A. Sajo (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford 2011.. This sense is present in the jurisprudence of constitutional identity as well. In effect, when talk about the constitutional identity of Germany or the constitutional identity of Spain we seem to refer to some essential feature of both Germany and Spain respectively. Mark Tushnet, in one of his recent contributions to this literature, refers to this notion: “The preamble to the Irish Constitution, like the preamble to the United States Constitution, raises questions about who ‘the people’ are who govern themselves in modern constitutionalist systems” M. TUSHNET, ‘How Do Constitutions Constitute Constitutional Identity’ (2010) 8 (3) International Journal of Constitutional Law, pp. 671-676. . But what is meant by the American people? Or the German people? Or what is Germany? Those may seem to be easy questions with obvious answers, but in fact they are not. In the end, as Aristotle said, “The identity of a polis is not constituted by its walls” Quoted by G.J. JACOBSOHN, ‘Constitutional Identity’ (2006) 68 The Review of Politics, pp. 361-397, p. 364. . So the definition of Germany, in this sense, cannot depend (at least exclusively) on the German territory. It must be something else. But this is one of the problems with this second idea of constitutional identity: it is not easy to know what the constitutional identity of the people is or means. I will explore here three possible meanings, which are intertwined in this literature. I do believe that all of them highlight different genuine identities that a people may have. But I will argue that all of them are also problematic as accounts of constitutional identity of the people. The first and most obvious meaning is the idea of national identity. What Germany is, in this account, is a nation with certain national distinctive features. What are such features? That, again, is a very hard question. Theorists of nationalism have struggled for centuries, quite unsuccessfully so far, to give an appropriate account of the concept of nation. Some of them have highlighted objective features or markers, like common ethnicity, common history, common culture or common language. It is not easy to see why German citizens, who may not share any of these markers, not even the language, are members of the German people. Others have famously advocated for a subjective concept totally dependent on people’s beliefs or preferences. All of these attempts, though, fail for different reasons. Fortunately we can avoid this debate here, since it seems clear that the constitutional identity of a people is something different from its national identity. Rosenfeld carefully distinguishes between these two questions. For him, the constitutional identity is a collective identity of the people subject to the constitution, but it may differ from other collective identities, such as national, religious, or ideological ones. They are conceptually different things: “One can easily conceive of the French or German nation”, he says, “without reference to a constitution”. What is more, both identities are constructed and projected, but the “constitutional identity is constructed in part against national identity and in part consistent with it” M. ROSENFELD, ‘Constitutional Identity’ in M. Rosenfeld and A. Sajo (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford 2011, p. 758. . Another argument to show that the constitutional identity is conceptually different from national identity is the case of pluri-national constitutional states such as Canada, Belgium or Spain, but also the United States. The Quebecois nation, the Flemish nation, the Catalan nation, or the Native-American nations, can live together with other nations under the same constitution and within the same state. They differ on all the basic –both objective and subjective- markers of the idea of nation. But they belong to the same constitutional people. Many would say that there is no common national identity in Spain, and nevertheless we have a constitution which reflects or gives us, the different peoples living under it, our common constitutional identity as a people. As I said, there are many difficulties in explaining what a nation is. And then, one might object also the idea of different nations living together in Spain. But there is no account of the idea of national identity which is compatible with affirming that Spain is one single nation and there is no other nation within it. That is why the idea of constitutional identity should be separated from that of national identity. Does it mean that our constitutional identity is given by our constitution? Constitutions constitute their subjects, the peoples subject to them. Therefore, we can affirm that, at least in some sense, peoples like United States, Germany or Spain are constituted by their respective constitutions. Constitutions say normally very little about this kind of identity issues. That is true. There is no single article in the Spanish constitution defining the Spanish people according to features a, b and c. But perhaps such definitional features might be found somehow implicit in the other articles, and constitutional interpreters may find them out after thorough analysis. Remember Justice Kennedy’s words quoted above: “our self-definition as a nation is bound up with the Constitution”. This connects with what Jacobsohn calls the deeply constitutive view of constitutional identity. The constitutional identity would be the identity of the people that are constituted by the constitution, and according to the very parameters, singled out by it. As Jacobsohn says, the problem with this vision is that when a society changes of constitution, the identity of the society itself would change G.J. JACOBSOHN, ‘Constitutional Identity’ (2006) 68 The Review of Politics, pp. 361-397, p. 364. . Technically speaking, they –the people under the old constitution and the people under the new one- would be two different peoples. But this seems counterintuitive. We want to say that there is some pre-existing and pervasive identity in Germany. Only then we might say that if Germany changes of constitution, it is Germany who has changed of constitution, and not a different people. The very idea of change, here, presupposes the continuity in the people’s identity. But the main problem with the deeply constitutive view of constitutional identity is that it leaves Tushnet’s question unanswered: the response to who is “we the people” cannot be constituted by the constitution. It needs to be conceptually prior. This is, of course, another well-known conundrum for constitutional theory. But we need to provide a solution for it. We need an independent, non-constitutional criterion to identify the people that are giving themselves a constitution, a people that must be pervasive even in the case of a change of constitution. But what can this non-constitutional and pervasive criterion be, especially after leaving aside the idea of national identity? I think there is a third, intermediate strategy to understand what our constitutional identity is. As the idea of national identity, it is non-constitutional, and more exactly, pre-constitutional. But as the deeply constitutive view, it is strongly related to the constitution. It is supposed to be expressed and embodied by it. Let me call it the idea of the people as a constitutional authority. Germany, as a people or political community, must have a particular identity which allows us to identify it as the author of the German constitution, and not only as the subject to it. It is the author of this constitution and eventually of any future constitution they might want to give to themselves. This identity is, thus, persistent or pervasive, and independent from a particular constitution enforced at a particular time. This is the sense in which we can talk about a German demos. But this idea of the people as a constitutional authority is obviously connected with the constitution in one important respect. The constitution enacted and enforced in Germany is an outcome of its authority, the fundamental outcome indeed. It is the supreme legislator who speaks through the words of the constitution. And it is supposed to express and embody the identity of the German people as its author. Otherwise, the constitution would lack legitimacy. A contrario, if we assume that the German constitution is legitimate, then we can infer that it embodies the constitutional identity of the German people –in the very sense of constitutional authority. The German constitutional identity would depend in such a way on what the German demos has enacted as ultimate constitutional authority in its current constitution. But, of course, one may object that this is explaining one concept –that of the constitutional identity of the people- with another concept –that of the identity of the constitutional authority- which remains unclear. What are the elements which define or constitute the German people as a constitutional authority? These elements, if we do not want them to be circular, must be independent of the constitution, even if they are mentioned or collected by it. They must be pre-constitutional. But what are they coming from then? Once more, this is a very hard question. Let me just briefly mention two possibilities. One would be to say that they simply derive from the actual will of Germans to be part of the German people. Let me call this the political approach. This can be a circular notion too, but it has the advantages of being clear and independent of national, ethnic, religious or cultural markers, which are very controversial. The problem, of course, besides circularity, is what happens if not all individuals unanimously share the will of constituting the same people and playing by the same rules. The introduction of majority rule would not be of any help, since it presupposes a previous notion of collective agency, and here the problem lies precisely in identifying such an agency. Another possibility would be to appeal to certain shared values and principles, in the form of “constitutional patriotism” J. Habermas, The Postnational Constellation, London: Polity, 2001. . Let me call it the moral approach. This seems more promising and attractive. The German people as an ultimate constitutional authority would be constituted them by a set of common political and moral values and principles. These values and principles should be ideally expressed and protected by the German constitution. And then the people constituted by, and subject to, such a constitution would also be identified by such values and principles. There would be a triple equivalence between the idea of the identity of the constitution outlined in the previous section –as the set of values and principles actually preserved by the constitution-, the identity of the German people as the ultimate constitutional author of the constitution and the identity of the German people as constituted by the constitution. We even might eventually define the German national identity on the basis of such values and principles, thus transforming the triple equivalence into a quadruple equivalence. Almost all the meanings we could associate with the notion of constitutional identity would be harmonized under this virtuous setting. Unfortunately, we have to face here the same problem I mentioned at the end of the previous section regarding the identity of the constitution as a set of values. If it is only a set of values or principles which is definitional or essential to the identity of the people, what if different peoples seem to share more or less the same set of values and principles? What if Spaniards and Germans agree on such basic values, as seems to be the case? Well, one possible response would be to say that there is no significant difference between the two at the level of constitutional identity, even if they are still separated from different national identities. But, if this is true, then Spain and Germany would just be parts that comprise a wider and more general constitutional authority (a European one?). But this seems to be a direction quite opposite the one taken by the German Constitutional Court. The task of determining the demos in a democracy is one of the hardest tasks for democratic theory and political philosophy and we have made no significant progress so far. It is not my purpose even to start a serious analysis of different possibilities here. The aim of this second part of the paper was just to outline some existing difficulties when we talk about the identity of the people as a constitutional identity. I have distinguished three different notions to which it could be reduced and I have showed that all of them are problematic for one reason or another. The one I found more directly connected with the kind of constitutional identity being discussed by German jurisprudence and academic literature is what I called the identity of the people as a constitutional authority. And I briefly explored two different strategies to give account of such identity, the political approach and the moral approach, finally showing some of the problems we may find in each of them. 3. CONCLUSION As I said in the introduction, the German Constitutional Court’s jurisprudence on the idea of constitutional identity became of the highest political importance with the recent Lisbon Ruling, when establishing some end-limits to the process of political construction of the EU. I hope to have shown that the idea of constitutional identity itself is far from clear. Different meanings are intertwined both in such jurisprudence and in the academic works on it. All these meanings can be reduced to two very different approaches or general ideas of constitutional identity. One, the identity of the constitution, is usually associated with a set of values and principles which are considered essential or definitional of the constitutional norm. This first idea is clearly present in the German Court’s argumentation. But the task of identifying such a set of values is very hard and not sufficiently grounded in such argumentation. Besides this, identifying a set of values and principles seems not enough to give account of the distinctive value of the German constitutional identity with respect to, for example, the Spanish one. The second general idea of constitutional identity is associated with the identity of the people themselves, which seems much more capable than the previous one of differentiating between the German constitutional identity and the Spanish one. The problem with this second idea is that it usually refers to very different meanings or levels of collective identity. I have discussed three of them: the national identity of the people, the deeply constitutive view and the identity as a constitutional authority. All of them have problems. One could conclude by asking what it is exactly that the German Constitutional Court finds incompatible with further steps in the political construction of the EU? Is it a set of values like human dignity, democracy and the freedoms protected by the bill of rights, as it explicitly affirms? If so, and given that these values are much shared and widespread across the state members, it is not easy to see why a truly democratic and constitutional EU could not preserve and protect them at least as efficiently as the German state. See P. MINDUS and M. GOLDONI, ‘Between Democracy and Nationality: Citizenship Policies in the Lisbon Ruling’ 2012) 18 (2) European Public Law, pp. 351-371. If it is not values, but the German national identity which is at stake, then, it is not clear why would such identity be endangered by having some common political institutions with other states, since there are many pluri-national states which have apparently succeeded in separating the constitutional project from the national one. If alternatively it is some non-value-based kind of identity which is strictly constituted by the German constitution, then the Court should show why this narrow sense of constitutional identity is incompatible with having a European political constitution at the same time as having an enduring German constitution. And considering that this deeply constitutive view of the identity of the people is inherently linked to every particular constitution, and therefore it simply disappears whenever the people decide to change their constitution, what is the importance of preserving it to the detriment of the European constitutional construction? Why not simply abandon it in favour of the constitution of a European people? Finally, if what is at stake is the idea of the German people as a constitutional authority, and is taken to be as incompatible with the emergence of another constitutional authority at the European level, then the German Constitutional Court ought to better sustain at least the following two points. First, what constitutes the German people as a constitutional authority? How can we identify it as a demos? And why is it so valuable? And second, why is this exactly incompatible with having a European constitutional authority operating on the basis of delegation when such delegation has been democratically transferred. Too many questions and too few responses. But that is exactly what philosophical papers produce. List of references A. ALBI and P. VAN ELUSWEGE, The EU Constitution, National Constitutions and Sovereignty: An Assessment of a ‘European Constitutional Order”’, (2004) 29 European Law Review, pp. 741-765 L.F. 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