¹ For the intellectual history of the concept, see Müller, Jan-Werner, Constitutional Patriotism 15–45 (2007).Google Scholar

² Shabani, Omid Payrow, Who's Afraid of Constitutional Patriotism? The Binding Source of Citizenship in Constitutional States, 28 Social Theory and Practice 419, 435 (2002); Elsa van Huyssteen, 'The Glowing Fire of our New Patriotism': The Constitutional Court, Civil Society and Constitutional Patriotism in South Africa in Gathering Voices: Perspectives on the Social Sciences in Southern Africa (Teresa Cruz María & Silva Ari Sitas eds., 1998); Gerard Delanty, Habermas and post-national identity: Theoretical perspectives on the conflict in Northern Ireland, Irish Political Studies 1, 11 (1996); Esad Zgodić, Ustavni patriotizam za Bosnu I Hercegovinu (Constitutional Patriotism for Bosnia and Herzegovina), 1 Godišnjak Bošnjačke zajednice kulture “Preporod“ 13 (2010).Google Scholar

³ For a prudential critique of constitutional patriotism in the context of the European Union see Kumm, Mattias, Why Europeans will not embrace constitutional patriotism, 6 ICON 117 (2008). For a critique in the Canadian context, see Jean-François Gaudreault-DesBiens, The Fetishism of Formal Law, the Circumstances of Constitutional Patriotism, and the Fate of Complex Polities in Nation Über Alles: Process of Redefinition and Reconstruction of the Term Nation in Central Europe (Michal Vasecka ed., 2008). For a critique in the context of Northern Ireland, see Schwartz, Alexander, Patriotism or Integrity? Constitutional Community in Divided Societies, 31 Ox. J. Leg. S. 503 (2011).Google Scholar

⁴ See Laborde, Cecile, From Constitutional to Civic Patriotism, 32 B. J. Pol S. 591 (2002); Antonino Palumbo, Patriotism and pluralism: identification and compliance in the post-national polity, 2 Ethics and Global Politics 321 (2009); Ephraim Nimni, Constitutional or Agonistic Patriotism? The Dilemmas of Liberal-Democratic States in Constituting Communities: Political Solutions to Cultural Conflict 94 (Per Mouritsen & Knud Erik Jorgensen eds., 2008).Google Scholar

⁵ See Schwartz, supra note 3.Google Scholar

⁶ See Lerner, Hanna, Constitution-writing in deeply divided societies: the incrementalist approach, 16 Nations and Nationalism 68 (2010).Google Scholar

⁷ For the consociationalists’ rejection of the Arab intellectuals’ invocation of constitutional patriotism in the context of Iraq's constitutional transformation, see O'Leary, Brendan, McGarry, John & Salih, Khaled, The Future of Kurdistan in Iraq 30 (2005).Google Scholar

⁸ In contrast, the recent upsurge of interest in deeply divided societies among constitutional lawyers and political scientists focuses on the choice between “integration” and “accommodation.” See generally, Sujit Choudhry ed., Constitutional Design for Divided Societies: Integration or Accommodation? (2008). Those who consider secession a legitimate option seek to discourage it through constitutionalizing, a rather cumbersome procedure, see Norman, Wayne, Negotiating Nationalism: Nation-Building, Federalism and Secession in the Multinational State 204 passim (2006).Google Scholar

⁹ Habermas, Jürgen, Constitutional Democracy: A Paradoxical Union of Contradictory Principles?, 29 Political Theory 766, 776 (2001).Google Scholar

¹⁰ Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, 133 (William Rehg (tr., 1998).Google Scholar

¹¹ Habermas, Jürgen, Struggles for recognition in democratic constitutional state in 8 The Inclusion of the Other: Studies in Political Theory, 203, 213 (Ciaran Cronin & Pablo DeGreiff, eds., 1999).Google Scholar

¹² Habermas, supra note 9, at 772.Google Scholar

¹³ Id. Google Scholar

¹⁴ Honig, Bonnie, Dead Rights, Live Futures: A Reply to Habermas's “Constitutional Democracy,” 29 Political Theory 792, 797 (2001).Google Scholar

¹⁵ Id. at 797.Google Scholar

¹⁶ Id. at798.Google Scholar

¹⁷ Habermas, supra note 9, at 775 [emphasis author's].Google Scholar

¹⁸ Müller, Jan-Werner, A European Constitutional Patriotism? The Case Restated, 14 Eur. Law J. 542, 547 (2008).Google Scholar

¹⁹ Shabani, supra note 2, at 435.Google Scholar

²⁰ Id. at 436.Google Scholar

²¹ Id. at 437.Google Scholar

²² Kymlicka, Will, Multicultural Citizenship 108 (1996).Google Scholar

²³ Kymlicka, Will, Reply and Conclusion in Can Liberal Pluralism Be Exported? Western Political Theory and Ethnic Relations in Eastern Europe 345, 362 (Will Kymlicka & Magda Opalski, eds., 2001).Google Scholar

²⁴ Id. at 354 [emphasis added].Google Scholar

²⁵ Kymlicka, Will, Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship 118 (2001).Google Scholar

²⁶ Kymlicka, Western Political Theory and Ethnic Relations in Eastern Europe in 13 Kymlicka, supra note 23, at 27.Google Scholar

²⁷ Kymlicka, supra note 23, at 390.Google Scholar

²⁸ At this point the answer might be that multinational federalism is an expression of the compact between self-determining peoples, which implies the right to secession. In words of Jacob Levy, “if … ethnically-sensitive federalism is justified on grounds that the group gaining control of a province is a national and if nations have a prima facie right to self-determination, then moving toward such federalism seems to grant a key premise of a future argument for secession.” Jacob T. Levy, National Minorities Without Nationalism in The Politics of Belonging: Nationalism, Liberalism, and Pluralism 155, 156 (Alain Dieckoff ed.,2004).Google Scholar

²⁹ A potential way around this difficulty is to say that ethnocultural justice is important only domestically, because only domestically does it impact individual autonomy and flourishing. The fact that a member of a national community does not have a unit to call her own in an international setting does not subtract from the possibilities for her individual autonomy.Google Scholar

³⁰ Kymlicka, supra note 25, at 101.Google Scholar

³¹ The national symbols featured in the coat of arms of Republika Srpska and the Federation of Bosnia and Herzegovina were based on “distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” U-4/04, Partial Decision on the Merits, 31 March 2006, (Constitutional Court of Bosnia and Herzegovina) at para. 124, available at: http://vlex.com/vid/-59929523 (last accessed: 23 December 2011).Google Scholar

³² Kymlicka treats this possibility as a way to dilute the political power of the ethno-national group, but the territorial pattern of distribution of this group may be such that it would not be possible to include the majority of them within a single territorial unit without wronging the other ethnic group within a multinational polity.Google Scholar

³³ Nagel, Thomas, Legitimacy and Unanimity in 3 Equality and Partiality 33, 34 (1995).Google Scholar

³⁴ Karol So łtan, Constitutional Patriotism and Militant Moderation, 6 Icon 96, 99, 103 (2008).Google Scholar

³⁵ Bobbio, Norberto, In Praise of Meekness in In praise of meekness: essays on ethics and politics (2000).Google Scholar

³⁶ Id. at 26.Google Scholar

³⁷ Id. at 30.Google Scholar

³⁸ Id. at 29.Google Scholar

³⁹ Id. at 29.Google Scholar

⁴⁰ Id. at 28.Google Scholar

⁴¹ Weiler, Joseph H.H., In defense of the status quo: Europe's constitutional Sonderweg in 1 European Constitutionalism beyond the State 7, 18 (Joseph H.H. Weiler & Marlene Wind eds., 2003)Google Scholar

⁴² Müller, Jan-Werner, A general theory of constitutional patriotism, 6 Icon 72, 82 (2008).Google Scholar

⁴³ Id. at 76.Google Scholar

⁴⁴ Müller, Jan-Werner, Three Objections to Constitutional Patriotism, 14 Constellations 195, 199 (2007).Google Scholar

⁴⁵ Müller, supra note 42, at 76.Google Scholar

⁴⁶ Id. at 79.Google Scholar

⁴⁷ Id. at 89.Google Scholar

⁴⁸ Hague, William & Ashdown, Paddy, Broken Bosnia needs western attention, Financial Times, Dec. 29, 2009, available at: http://www.ft.com/intl/cms/s/0/bf60a826-f4af-11de-9cba-00144feab49a.html#axzz1eM2×8sa8 (last accessed: 23 December 2011).Google Scholar

⁴⁹ Stranka Za Bosnu I Hercegovinu, Programska orijentacija Stranke za Bosnu i Hercegovinu (Program Orientation for the Party for Bosnia and Herzegovina), available at: http://www.zabihsana.com/sadrzaj/programska-orjentacija-stranke-za-bih.html (last accessed: 23 December 2011).Google Scholar

⁵⁰ Akcije, Stranka Demokratske, Political Declaration as adopted on the 5^th Party Congress, available at: http://sda.ba/download/PROGRAM_DECLARATION_5TH_CONGRESS.pdf (last accessed: 23 December 2011).Google Scholar

⁵¹ Interview with Professor Zdravko Grebo, “Potrebno je samo da s poštovanjem kažemo da smo gradani ove zemlje,” (“You just have to respectfully say that we are citizens of this country,”) Radio Studio 88, Nov. 25, 2008, available at: http://www.studio88.ba/bh/38/bih/11804/ (last accessed: 23 December 2011).Google Scholar

⁵² Karabeg, Omer, BiH-zemlja zamrznutog konflikta (Bosnia and Herzegovina: A country frozen in conflict), Radio Free Europe, http://www.slobodnaevropa.org/content/article/1371186.html (last accessed: 23 December 2011).Google Scholar

⁵³ Tuzle, Forum Gradjana, available at: http://www.forumtz.com/bos/vijest21.html (last accessed: 23 December 2011).Google Scholar

⁵⁴ Müller, Jan-Werner & Scheppele, Kim Lane, Constitutional Patriotism: An Introduction, 6 ICON 67, 67 (2008).Google Scholar

⁵⁵ Eldin Hadžović, Reisov Manifest [Reis's Manifesto], 619 BHDANI„ Apr. 24, 2009, available at: http://www.bhdani.com/default.asp?kat=kol&broj_id=619&tekst_rb=1 (last accessed: 23 December 2011).Google Scholar

⁵⁶ Some constitutionalists, for example, use the two terms indistinguishably. See Choudhry, Sujit, After the Rights Revolution: Bills of Rights in the Post-Conflict State, 6 Annual Review of Law and Social Science 301, 316 (2010).Google Scholar

⁵⁷ See Shabani, supra note 2, at 441.Google Scholar

⁵⁸ This hegemonic invocation doesn't need to have a solely domestic side. If constitutional patriotism is defined against its ethnic other, and if that ethnic other is constructed through the external endorsement of a particular territorial distribution, then, in a particular context constitutional patriotism serves the purposes of those who, from the outside, have an interest (and not only an unselfish desire) to maintain a territorial status quo. The practical consequences of such a stance may be good or bad, but at least—at a theoretical level—we would do well to acknowledge that constitutional patriotisms structurally depend on ‘invisible’ actors who enable it to configure itself as an alternative to vicious ethnic nationalism.Google Scholar

⁵⁹ Sołtan, supra note 34, at 96.Google Scholar

⁶⁰ Perhaps, for this reason, recent writings on constitutional patriotism among Sarajevo intellectuals offer only qualified support for the constitutional patriot project. For Esad Zgodic, constitutional patriotism can equally be grafted onto the Dayton constitution of Bosnia and Herzegovina, which, for him, would be morally unacceptable given the war crimes and ethnic cleansing that led to the current internal territorial division of the country, entrenched in this constitution. Instead, his understanding of constitutional patriotism's promise—echoing Shabani's theme of reasonableness—gestures towards patriotism's potential to liberate the country from “malevolent irrationalism” of nationalism and “‘custom-based’ patriotism.” See Zgodić, supra note 2, at 23–4.Google Scholar

⁶¹ Interview with Dodik, Milorad, “Mi svoj put znamo,” Fokus, Banja Luka, published on the Government of Republika Srpska website, available on file with the author.Google Scholar

⁶² Tully, James, The Unfreedom of the Moderns in Comparison to Their Ideas of Constitutional Democracy, 65 MLR 204, 219 (2002).Google Scholar

⁶³ As Patchen Markell rightly argued “[t]he maxim, ‘it's not whether you win or lose,’ only goes so far, especially in politics.” Patchen Markell, Bound by Recognition 33 (2003).Google Scholar

⁶⁴ Tully, James, 1 Public Philosophy in a New Key: Democracy and Civic Freedom 139, 141, 154 (2008).Google Scholar

⁶⁵ Id. at 175.Google Scholar

⁶⁶ Christodoulidis, Emilios, Constitutional Irresolution: Law and the Framing of Civil Society, 9 ElJ 401, 416 (2003).Google Scholar

⁶⁷ Id. at 426.Google Scholar

⁶⁸ Armitage, David, Probing the Foundations of Tully's Political Philosophy, 39 Political Theory 2011, 124, 127 (2011).Google Scholar

⁶⁹ Second Report of Republika Srpska to the United Nations Security Council on the Situation in Bosnia and Herzegovina, 2219/09 (2009).Google Scholar

⁷⁰ “Sulejman Tihić repeated the position of SDA that the OHR has to stay in Bosnia and Herzegovina until it is … capable to function independently and fulfill its obligations on the road towards the full membership in NATO and the EU.” [translation mine] Official Website, Party of Democratic Action, available at http://www.sda.ba/vijest.php?id=626 (last accessed: 23 December 2011).Google Scholar

⁷¹ I won't elaborate further on the idea of ‘democratic reductionism’ in this article. However, I will remark that support for it may come from diverse political and legal traditions. Hans Kelsen, a legal positivist, known cosmopolitan and a pacifist, argued for the satisfaction of national demands wherever possible. See for example, Hans Kelsen, Law and Peace in International Relations, The Oliver Wendell Holmes Lectures, 1940–41, 141, 163 (1948). From within a liberal tradition, on the other hand, Richard Flathman constructs the concept of ‘willful liberalism’ that embraces the legitimacy of under-argued, opaque political desires. See Flathman, Richard, Willful Liberalism: Voluntarism and Individuality in Political Theory and Practice (1992). Finally—and more directly relevant to the project—there are theories of secession that build on the idea of individual autonomy to justify reconfiguration of political boundaries. See generally Wellman, Christopher, A Theory of Secession (2005).Google Scholar

⁷² Tully, supra note 52, at 212.Google Scholar

⁷³ Id. at 177.Google Scholar

⁷⁴ Theorists of agonism are generally keen to distinguish themselves from more rabid nationalists. Agonism, for Chantal Mouffe, for example, is a progressive step away from ant-agonism, implicit in nationalist sectarian struggles. See Mouffe, Chantal, The Return of the Political 117, 133 (2005).Google Scholar

⁷⁵ Responding to speculation about a potential decision about holding a referendum on secession of Republika Srpska, Bosnian Serb politician Nikola Špirić, currently the Bosnian prime minister, said: “What would such a referendum mean anyway, if nobody recognized it?” Radiotelevizija Srbije (Jan. 20, 2010), available at: www.rts.rs (last accessed: 23 December 2011).Google Scholar

⁷⁶ Tully, supra note 52, at 181, 183.Google Scholar

⁷⁷ For an interesting neo-republican articulation of a community of fate, a community of individuals connected not through normative ideals but rather by a simple fact of being ‘stuck’ together, see Herman R. van Gunsteren, A Theory of Citizenship: Organizing Plurality in Contemporary Democracies (1998).Google Scholar

⁷⁸ Id. at 147, 163.Google Scholar

⁷⁹ So łtan, supra note 34, at 99.Google Scholar

⁸⁰ One argument could be that even if the scope of territorial solidarity would diminish, it would be offset by the larger involvement of the nascent polity in providing international aid. Pre-empting the objection of selfishness seems to animate the position of the Scottish National Party, which advocates the secession of Scotland from the United Kingdom. The SNP International Development spokesperson has, for example, claimed that “SNP share[s] [the] ambition and look to the example of other small nations such as the Norwegians, the Irish and the Danes who punch way above their weight in making a positive contribution. “It's Time for a Say on International Aid,” The Scottish National Party Official Website (Mar. 27, 2007), available at: http://www.snp.org/press-releases/2006/it2019s-time-for-a-say-an-international_aid/view?searchterm=international (last accessed: 23 December 2011) [emphasis added].Google Scholar

⁸¹ So łtan, supra note 34, at 98.Google Scholar