Constitutional Identity: Thick Interpretation by Citizens

Constitutional identity is a multifaceted and dynamic concept, which for a long time has been used for sovereign states. It is made of an interplay of constitutional texts, interpretations by judicial authorities, and their practical application. Various actors are involved in deciding on the key elements. It represents a unique combination of fundamental values, principles, and historical and cultural characteristics as enshrined and reflected in a constitution. As a legal concept, constitutional identity serves both as a reflection of a nation and its population and as a vehicle for core constitutional values and principles. It guards them in the face of changing domestic and European or global landscapes. Moreover, the EU Court of Justice in recent landmark cases has coined the notion of constitutional identity as EU-specific legal concept. This concept serves as a benchmark for national constitutional identities, which cannot be in breach with EU constitutional identity. The notion is currently defined mostly in terms of fundamental values, but invites for further demarcation.

The existing literature reveals a growing scholarly interest in how constitutional identity is articulated and contested at both the EU and national levels. Key studies have focused on the interplay between national constitutional traditions and the overarching framework of the EU. However, these studies have been mostly conceptual and legal-dogmatic, whereas more contextual research of “constitutional identity” is needed. Because of its connections to society and culture, this analysis cannot be exclusively legal-dogmatic. Moreover, constitutional identity has been studied for national jurisdictions, not for supra-national ones.

This project aims to fill these gaps by organizing focus groups of selected citizens in order to build up “constitutional identity”, with a focus on a supra-national concept, in a “thick” way. Since constitutional identity is close to fundamental values in a given society, the participatory aspects of the concept are important. The method of designing a concept of constitutional identity from the bottom-up, by citizens, is novel and promising. As mentioned, legal dogmatics is not fit to analyze a concept that is not exclusively legal.

First, a legal-comparative analysis of the content of legal concepts of constitutional identity in Belgium, the Netherlands and at the level of the EU will be made. Belgium and the Netherlands are chosen because of the comparability of the countries (both are constitutional parliamentary monarchies and have a long constitutional tradition). At the same time, differences between the two countries are expected to be relevant for the study of constitutional identity (for example, federalism in Belgium). The EU concept is analyzed in comparison to the mentioned national ones, with a focus on the difference of the national versus supranational perspective. For all three legal orders, it will be analyzed which non-legal elements (societal, cultural) are currently connected to the mentioned legal concepts, and which can be detailed further. In a second step, in focus group sessions, with citizens of Belgium and the Netherlands, a concept of constitutional identity will be designed, in connection to discussions about the concept’s core features (what it is, which purpose it serves, and what is its content). The non-legal elements detected in the first legal-comparative phase of the research will provide inspiration for questions in the focus group sessions.

By combining comparative legal analysis with empirical research, the project seeks to contribute to a more nuanced understanding of constitutional identity as concept, and to enrich the contents of the concept (both the generic one, and the concepts as they exist in existing legal orders). This research is not only academically significant (i.e., it aims at defining constitutional identity in more detailed terms), but also holds societal relevance. Defining a concept that is connected to society by members of the public may further increase attention for citizen participation in constitutional matters.