One of the bedrock principles of liberal-democratic thought is that government should be neutral in the face of the ‘fact of plurality.’ It should provide an impartial framework within which religious and non-religious conceptions of the good life can be pursued. However, it has long been recognized that this normative ideal of state-neutrality is too demanding as a normative yardstick for actual political practice. It does not properly reflect the condition of actual liberal-democratic states which’ histories of nation-building endowed them with a contingent national identity which usually has a strong religious shading. Recent high profile cases like Lautsi and the Swiss Minaret ban shows that the states are eager to hold on to the distinct religious shading of their national identity.
This Paper criticizes the disproportional space is given to ethno-religious identity-claims in European democracies at the expense of constitutional principle like the separation of church and state, state neutrality and non-discrimination. I start by criticizing the term ‘national identity’ as being too fuzzy – more a word-cloud that a specific concept – to be employed as a hard-chiseled counterweight for constitutional principles. Second I argue that when the term is employed, it is usually used in an unwarranted narrow primordial form. Thirdly, such defenses usually boil down to the maintenance of a certain privilege, a largely unacknowledged unequal treatment in favor of the members of the historically native population. Finally, I will argue that the emphasis on national identity leads to what I coin “a constitutional deficit:” the unwillingness or inability of European states to justify central institutions of their basic structure in terms that does justice to the pluralistic character of their societies and the constitutional principles the states have endorsed over the last few decades.
