This chapter explores and develops the relationship between two key concepts that have been central to Gary Jacobsohn’s work over the past decade or so: constitutional identity and constitutional revolution. In particular, it addresses the issues of (1) how and to what extent constitutional revolutions impact constitutional identity, (2) whether they do so in a single or uniform way, and (3) the implications of the broadening of the concept of constitutional revolution in the recent book for the possibility of the “substitution of one constitutional identity for another.” With respect to the latter, the chapter identifies a certain resistance in the new book to the idea of a new constitutional identity but argues both that its thesis is perfectly consistent with this possibility and that the idea provides the best way to understand certain constitutional revolutions.

Gary Jacobsohn’s theory of constitutional identity speaks to normative questions about the exercise of constituent power in constitution making. To gain purchase on these questions, this article applies Rousseau’s description of three "moments" of citizenship to the creation and maintenance of constitutional orders. Jacobsohn’s understanding of constitutional identity as something that emerges over time as opposed to an episodic expression enriches the Rousseauian model’s response to the paradoxes of democracy. Ultimately, Jacobsohn’s model implies that true constituent power is exercised only in the form of a dialogue within a shared understanding of democratic legitimacy, raising the possibility that moments of violent disruptive constitutional change cannot be accommodated to the requirements of democratic legitimacy at all – a return to Rousseau’s paradox of founding.

Constitutional theory in democratic countries has traditionally postulated the existence of a sovereign people endowed with the authority to enact a constitution. An influential view going back to Sieyès claims that the constituent power of the people is legally unlimited. The ability of the people to enact a constitution is supposed to be fully disconnected from positive law. This notion, however, is seriously flawed. The idea that a legally omnipotent people, working its will at the constitutional stage, is the fountain of positive law makes no sense. Although the idea can be used rhetorically in some justificatory contexts to support valuable institutional arrangements, it also raises a number of pragmatic concerns. All things considered, our theoretical and political discussions would be more fruitful if we certified the death of that concept.

The chapter describes first the importance of Jacobsohn’s work to constitutional theory in general as it relies on the ideas of dynamism, fluidity, disharmony and imperfection to describe a constitution’s functioning. It then focuses on the German constitutional conflict on binding electoral gender quotas in order to illustrate the pertinence of his theory that describes so aptly the functioning of a constitution. It concludes with the finding that, in terms of constitutional theory, Jacobsohn has indeed cracked the genetic code of a constitution.

Constitutional identity has become one of the most important and hotly contested concepts in contemporary constitutional theory and practice. It has been repeatedly invoked in debates concerning EU integration, constitutional reform and revolution, and the spread of ethno-nationalist populism, democratic backsliding, and constitutional retrogression. Yet, the concept’s precise foundations, meaning, scope, and dynamics of continuity and change remain somewhat unclear and under-explored. This contemporary and definitive volume aims to address this stark gap. Featuring some of the world’s leading scholars of comparative constitutionalism, constitutional theory, and constitutional politics, this book provides a comprehensive, first-of-its-kind theoretical, comparative, normative, and empirical account of the concept of constitutional identity. It will be of great interest to scholars, students, jurists, and constitutional drafters alike.

This chapter considers how Gary Jacobsohn’s concept of ‘constitutional identity’ can ‘travel’ from the discipline of law to that of international relations, with a particular focus on how it can inform analyses of the ‘ontological security’ of states. The concept of ontological security is used to understand subjectivity and focuses on managing anxiety in the constitution of self-identity. When a state is ontologically insecure this can challenge its ability to do, act, and be. Using a case study of Timor-Leste, this chapter argues that a constitution – and the constitutional identity it generates – can contribute to creating a sense of ontological (in)security for a state and its people. A constitution can provide answers to existential questions and help to define a state’s self-identity by narrating a sense of biographical continuity and by establishing the institutions and practices that build the routines required to create a protective cocoon for a state’s citizenry.

Any constitution holds the nation’s past, aspires to live the present, and promises to build a thriving future. Differentiating a nation’s collective identity from its constitutional identity is, thus, often difficult, or even impossible. This chapter shows that, at its founding moment, Bangladesh’s national identity and constitutional identity merged into one another, although the national Bengali identity was flawed and exclusionary. Bangladesh’s four-pronged constitutional identity – based on the principles of nationalism, secularism, democracy, and socialism – evolved through a revolutionary and popular process but has since remained ever contested. These four identity principles have been subject to multiple changes, signifying their contestation and contentiousness. One possible reason for the continuing contestation about constitutional identity is, arguably, the ignorance of the religious sentiment of the Muslim majority citizenry. An analogous argument has been that Bangladesh’s constitutional (or national) identity is fraught with an exclusionary or hegemonic approach to nationality.

Constitutional identity, although remaining distinct from national identity, does like the latter carve out an imagined community. It must process and reprocess material to promote a vision that integrates the ethnos and the demos in a constitutionally viable manner. In this pursuit, the elaboration of constitutional identity relies on three principal interpretive devices: negation, metaphor, and metonymy. The objective is to integrate the polity as a whole, the individuals subject to the constitution, and the plurality of groups within the nation that possess a legitimate claim to constitutional recognition. The resulting construct must draw on national identity to reinforce unity and depart from the latter where necessary to maintain constitutional integrity – e.g., to deescalate ethnic strife within the polity by banning ethnic-based political parties. The turn to populism poses a challenge that calls upon reframing constitutional identity. Indeed, as populism by its very nature casts only part of the people as the people, and labels those not included as the enemy, it calls for disaggregating and recombining existing liberal constitutional identities. We illustrate the adverse effect of populism’s recourse to ethnic cleavages and to religion in reframing constitutional identity through the salient example of Viktor Orban’s Hungary.

The identity of the Japanese Constitution of 1946 is defined by the unusual story of its making process. This constitution was already born with both internal and external disharmony. The new constitution fundamentally changed the former constitution of the Meiji regime; however, it did not replace the former imperial constitution but revised it by using its amendment clause. The continuity between the former and latter regimes was disconnected in a substantive sense but maintained in a procedural sense. This is the internal disharmony. This twisted legal inconsistency can often arise in hard times after losing a war, but it was of grave concern to Japanese legal scholars who tried to justify such legalistic chaos as the “August Revolution.” Nevertheless, it was not the new constitution itself that brought about the revolutionary impact, but the Potsdam Declaration as a condition of surrender imposed by the Allied Forces on the Japanese Government. The Constitution of Japan was not unjustly imposed by the Allied Forces but was legitimately imposed by the Potsdam Declaration, which the Japanese Government itself accepted upon its defeat in the war. More precisely, it is a constitution based on an imposed revolution. This is the external disharmony.

Increasingly, illiberal and authoritarian governments are seizing upon the concept of constitutional identity in order to justify and vindicate their political projects in the face of external criticism. This contribution raises questions about what these invocations tell us about the normative value of constitutional identity. The authors argue that, in the European context of supranational legal integration, constitutional identity should not be seen as an unconditional source of value. Invocations of constitutional identity only deserve recognition to the extent that they serve the ideals of constitutionalism. Where constitutional identity is invoked as a normative argument, the normative expectation of constitutionalism is implied – claims from constitutional identity that stand at odds with the ideals of constitutionalism, in fact, invoke the former ironically and frivolously. Exemplary cases in which constitutional identity is invoked to justify forms of ‘illiberal’ constitutionalism – notably the Polish and Hungarian cases – should be considered abuses of the concept as they do not live up to the normative expectations which they evoke.

In Constitutional Identity, Gary Jacobsohn highlights the tension both within constitutional systems and between constitutions and societal norms (culture). In this essay, we explore the first tension and glance at the second. One objective of the essay is to enumerate a set of “disharmonies” that appear with some frequency within constitutions and, employing historical data, identify the constitutional systems that contain them. Appealing to formal logic, we develop a taxonomy that helps us understand the kinds of disharmonies on display; a taxonomy that points to their sources. The essay thus generalizes Jacobsohn’s notion of disharmony and extends his insights from a small set of cases that begin with the letter “I” to a larger set.

The term “identity” often generates questions about the “essence” of the entity being “identified.” Ascriptions of “identity” become controversial inasmuch as given behaviors or traits are viewed as favorable or unfavorable. Within the United States, the rhetorical trope “this is not who we are” has become almost pervasive upon the occurrence of a regrettable, even heinous, act. President Obama had a particular affinity for the phrase. He suggested, for example, that the vicious racism revealed in the 2015 massacre of African Americans in Charleston, South Carolina was aberrant, revealing nothing essential about American culture. The current debate within the United States about the “1619 Project” is all about constitutional and cultural identity. Its adherents argue that American identity is rooted in the white supremacy instantiated in the practice of slavery, dating back to 1619. Opponents emphasize the 1776 Declaration of Independence, with its proclamation that “all men are created equal” and “endowed” with equal “inalienable rights,” as the key marker of American identity. Slavery, which is conceded to have existed, was simply epiphenomenal; “who we are” is defined by the Declaration. Much is thought to ride on ascribing a particular identity to any given country or, more particularly, its constitution.

This chapter considers how Confucian values constitute constitutional identity in three Confucian-influenced countries in Asia: China, South Korea, and Singapore. Drawing on Professor Gary Jacobsohn’s framework for the comparative study of constitutional identity, this contribution argues that Confucian commitments are embodied in the formal and/or prescriptive constitutions in the three Asian jurisdictions. The constitutions’ Confucian heritages are continuously dynamic. Disharmony provokes a change in Confucian constitutional identity. The change involves not only judicial but also social and political activities.