Constitutional Identity - Illusion or Inclusion?

Constitutional identity, as it is understood in this contribution, refers to the national constitutional principles that are distinct to each member state, often enshrined in constitutional texts and invoked by national courts. The EU has used a similar narrative when identifying its own constitutional order. The term 'constitutional identity' may initially give the impression that the focus lies solely on the identity of the constitution itself. Nevertheless, there is a considerable conceptual journey to be undertaken before the full complexity of the concept can be fully grasped. It is essential to engage with the term 'constitutional identity' as a multidimensional and multifunctional topic. A constitution is not merely a legal document; rather, it is a foundational framework that governs the organization and functioning of a state. A constitution establishes the structure of government, delineates the distribution of powers, and, most crucially, enshrines fundamental rights and liberties. These sections concerning rights frequently constitute the essence of what renders a constitution a living document, one that reflects and adapts to the evolving values of society. Conversely, the term "identity" is more elusive and multifaceted. As various scholars have discussed, identity encompasses how individuals perceive themselves, both in terms of personal beliefs and their place within broader social or cultural contexts. When these terms are considered together, the concept of 'constitutional identity' extends beyond a mere technical analysis of legal provisions. It encompasses a deeper philosophical inquiry into how a constitution influences and reflects the values, norms, and self-understanding of a polity (section 1). The EU has been confronted with a decline in trust of citizens as well as critiques aimed at the democratic functioning. This often leads to the conclusion that the EU at best suffers from a democratic disconnect. In the worst-case scenario, it suffers from a severe democratic deficit (section 2). Although many initiatives have been developed within the EU, the focus has mostly been on the institutional design of the EU. We aim to focus on the notion of constitutional identity and the way it could combat the disconnect between member states and the EU and even citizens and the EU. By examining the constitutional identity of various member states the intersecting characteristics become clear and help construct a common narrative. Not all Member States of the EU will be covered. We discuss them where relevant to add balance to the discussion. We put forward that constitutional identity, when applied in a constructive and dialogical way, could allow for a more flexible and adaptive EU, where national values are respected without eroding the fundamental principles of integration. This would include the vision of member states and allow citizens to form one demos and a European sphere, albeit still in embryonic form (section 3). Our stance is however not without critique (section 4), which we aim to refute. We propose constitutional identity as a possible solution to democratic deficit and disconnect and offer views on reform to achieve this purpose (section 5).