Your effort to remain what you are is what limits you.
Puppet Master, Ghost in the Shell (1995)
1. Introduction
In Mamoru Oshii’s animated film Ghost in the Shell, a cyborg agent hunts a hacker in a future where human consciousness is integrated with digital networks. Bodies have become cybernetic interconnected shells, but each is still animated by a ‘ghost’, the remaining trace of what is human and the basis of one’s identity. The film destabilises the distinction between ghost and shell: what if the ghost itself is programmable? What if memory and identity can be manipulated and rewritten?
This image resonates with current legal and academic debates about constitutional identity. The concept of constitutional identity generally refers to the enduring features of a constitutional order – its core values, structural principles, and historical continuity – but accounts differ over its scope, and some question whether the notion of identity is too vague, broad, or abstract to be incorporated into constitutional law. Particular controversy has surrounded populist and abusive appropriations of the concept of constitutional identity, where the concept is invoked to resist international law or to justify human rights violations. Constitutional identity in those accounts is portrayed as a fixed and immutable core, a ghost defined by deep cultural tradition and national essence. In response, constitutional identity is often narrowly defined as a functional legal tool: identity is limited to elements explicitly stated in the ‘fundamental structures, political and constitutional’ of the Member States, where cultural or historical content is relevant only insofar as it is incorporated into positive law. This legalistic notion, however, carries its own risk of becoming a shell that is too abstract either to be useful or to account for the dynamic reality of constitutional identity formation. In this paper, we try to get deeper insight into the dynamic and interpretive nature of constitutional identity. We propose an alternative conception of constitutional identity as narrative identity. Preconstitutional identity is then the ghost in the shell of constitutional identity, but rather than being a substantive ethnocultural core, it is itself a mutable construction.
In the first part, we explore the concept of constitutional identity in its ambivalent relationship with national identity, arguing that the debate implicitly reflects a deeper tension between constitutional and preconstitutional identity, echoing oppositions between constitutionalism and constitutional democracy and between ethnic and civic nationalism. In the second part, we propose a rethinking of constitutional identity as narrative identity, as a way to reclaim ethnocultural elements as central to the demos without reverting to static and essentialist conceptions of identity. Drawing on narrative logic, the third section examines the entanglement of preconstitutional and constitutional identity as it cuts across six recurrent binaries in contemporary debates on constitutional identity.
2. The tension between national and constitutional identity
In recent years, there has been a significant surge of interest in the concept of constitutional identity. While the debates have primarily focused on the meaning and substance of this notion within European public law, underlying these discussions is a more fundamental tension between preconstitutional and constitutional identity; a tension that echoes the opposition in legal philosophical debates between constitutionalism and constitutional democracy, and closely parallels the dichotomy found in nationalism studies between the ‘ethnic nation’ and the ‘civic nation’. In this section, we will show that the legalistic approach tends to favour constitutional identity at the expense of preconstitutional identity. Inevitably, this leads to neglecting the deeper connection between the concepts, in turn making the notion of constitutional identity vulnerable to illiberal counter-conceptions that exploit this confusion.
In European law, the phenomenon of identity has acquired a legal embodiment with the incorporation of Article 4(2) in the Treaty on European Union (TEU). This so-called ‘identity clause’ stipulates that the European Union shall respect the Member States’ ‘national identities, inherent in their fundamental structures, political and constitutional’.Footnote 1 Since the legal recognition of the specific Member States’ identities, the concept of constitutional identity has been adopted by several domestic constitutional courts. Because of the identity clause’s vague wording, there has been much debate about what constitutional identity means and to what elements the identity clause can refer. Ambiguity over the function that constitutional identity has and can have in a Member State’s legal order can lead to misuse or abuse: constitutional identity is sometimes used to affirm the national court’s internal adjudicative authority, to resist further European integration, to justify divergent interpretations of the rule of law and human rights, and to buttress populist claims.Footnote 2 Since Article 4(2) TEU speaks of the ‘national identity’ of Member States, authoritarian regimes could frame all sorts of elements that are part of the Member State’s collective identity as part of its constitutional identity: a nation’s historical, ethnic, cultural, social, linguistic, economic and political features could be cited to challenge the validity of EU acts and legitimise a regime’s illiberal and exclusive identity-politics.Footnote 3 In this respect, the concept of constitutional identity has been represented as an ‘escape hatch […] creating departures from shared European constitutional understandings and values’,Footnote 4 and even a “nationalist delirium’,Footnote 5 that holds the potential to supplant the notion of national sovereignty as a marker of national autonomy of the EU Member States.Footnote 6
Legal scholars have therefore generally come to distinguish constitutional identity from national identity, and the preconstitutional and extra-constitutional elements that the latter embraces.Footnote 7 The wording of Article 4(2) TEU is taken as a benchmark: only the elements of the Member’s national identities ‘inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’ are taken into account.Footnote 8 Leonard Besselink asserts that, although the wording of Article 4(2) TEU suggests a shift in emphasis from national (or preconstitutional) identity to constitutional identity, this does not exclude taking into account the Member States’ cultural identities, especially since many political and constitutional arrangements are fundamentally an expression of cultural phenomena.Footnote 9 Consequently, legal scholarship deduces that features of preconstitutional identity are protected by Article 4(2) TEU ‘to the extent that they inform an order in a fundamental constitutional sense’.Footnote 10 Preconstitutional features can, in other words, be considered insofar as they have an ‘essential constitutional status’ or inform a legal order in a ‘manifest constitutional sense’.Footnote 11 Consequently, elements of preconstitutional identity may be part of a Member State’s constitutional identity, but this is not necessarily the case.Footnote 12
This view is, however, not shared by everyone. Some point at the inevitable intertwinement of constitutional and preconstitutional (or national) identity,Footnote 13 while others argue that the European identity clause protects no less than preconstitutional characteristics that simultaneously feature in the fundamental structures and the constitutional law of the Member States.Footnote 14 In this interpretation, preconstitutional identity seems to be a precondition for constitutional identity to exist.
Either way, if scholars haven’t discarded the notion of constitutional identity altogether,Footnote 15 they’ve, at best, been steering constitutional identity away from national sovereignty and preconstitutional identity features towards a legal-positivist interpretation of identity that better fits a federalist, heterarchical, and pluralist order. Cleansing constitutional identity from its preconstitutional taint, national identity has become ‘constitutionalised’ in order to make it correspond to the European Union’s framework of post-national constitutionalism.Footnote 16
As we will show, preconstitutional identity and constitutional identity (Section 2A) have often (implicitly) been associated with elements that relate respectively to constitutional democracy and constitutionalism (Section 2B). However, by privileging constitutionalism over constitutional democracy, the legalistic perspective tends to neglect the inherent tension between these normative doctrines. What is more, in contrasting preconstitutional identity with constitutional identity and downplaying the former in favor of the latter, scholarship seems to revert to the classic dichotomy between ethnic nationalism and civic nationalism; a distinction that has increasingly been questioned in nationalism studies (Section 2C).
A. Preconstitutional and constitutional identity
By now, the concept of constitutional identity has been discussed at length, whereas the concept of preconstitutional identity remains underexposed. As preconstitutional identity is not codified in legal texts, nor treated specifically in prudential reasoning in constitutional European law, it remains difficult to reconstruct a clear definition. By deduction in existing academic literature, it is, however, possible to describe preconstitutional identity more generally as a cultural, historical, and social identity of a political community that captures or provides for the foundational ethos of this community before being formalised in a constitutional system or constitutional law.Footnote 17
As such, preconstitutional identity is a curious concept in that it seems to be defined by the identity that follows it. If we understand constitutional identity in the broadest ontological sense, ie, what makes a given constitutional system itself – the shared political and legal values as implied in the formal constitution and its lived experience through the material constitution – then preconstitutional identity seems to precede constitutional identity ontologically.Footnote 18 But since we only speak of preconstitutional identity from a later constitutional reality, constitutional identity in fact is ‘more original’ than preconstitutional identity. Of course, the factual components of preconstitutional reality are temporally prior to subsequent constitutional realities. But the whole of preceding practices can only emerge as an identity from a later constitutional angle.
Preconstitutional identity in this sense can’t be equated to an ethnocultural identity as opposed to a later political-civic identity. It consists of both the civic and the ethnocultural elements of the identity that precedes constitutional identity; the medieval joyous entries, for example (in which the monarch gave rights to cities upon his entry) as a prelude to modern declarations of rights may be as much a part of preconstitutional identities as a particular constellation of language, ethnos, culture, etc. As we will see, the equation of preconstitutional and constitutional identity to the divide between either ‘constitutional-democratic’ and ‘constitutionalist’, or between ‘ethnic’ and ‘civic’ follows in this sense from a reductionist view of history, as if before current constitutional realities no substantive rights framework and political division of power were possible.Footnote 19 The defining aspect of preconstitutional identity is not so much a bundle of properties, but the fact that it is the identity that precedes or leads to constitutional identity.
B. Preconstitutional and constitutional identity in terms of constitutionalism
As a normative concept, constitutional identity cannot be considered separately from the ideals of constitutionalism.Footnote 20 Although the term has taken various meanings in public discourse, the most common substantive conceptions of modern constitutionalism include empowering the community, vesting public authority, and restraining state power, to safeguard individual liberty and protection from abuse of power.Footnote 21 While constitutionalism institutes individual rights protection, based on reason and norms, it is also considered an ideology that empowers ordinary people in a democracy.Footnote 22 Constitutions contain values, aspirations, and commitments that enable the democratic self-government of a political community. This comes back to the idea of constituent power: the idea that sovereignty lies with the people or the nation and that through the establishment of a constitutional document, constitutional norms, and a constitutional order, it can find agency in its self-determination.Footnote 23 As such, constitutionalism is a fact-based theory that gives agency to the political will of a community. To summarise this duality in constitutionalism with Hans Vörlander’s words: ‘Constitutions are hermaphrodites. They are politics and they are law’.Footnote 24
It is easy to see why constitutions are increasingly considered an appropriate channel for creating collective identity and holding communities together despite diversity and differences.Footnote 25 With the creation of a permanent governing framework, based on a system of decision-making and dispute resolution, a constitution can acquire a level of trust that is needed to sustain social cohesion, allowing it to affirm itself as ‘the authoritative expression of the regime’s collective political identity’.Footnote 26 Constitutions arguably have an integrative effect, channeling conflictual discourses in society through a shared constitutional discourse, without fixating on the constitution’s concrete content.Footnote 27
Whereas in its modern origins, constitutionalism was centered on the political community (exteriorised in terms of nation or people) as the master of its own ‘national’ constitutional law, the idea of constitutionalism has fundamentally changed in the European context. While the notion of sovereignty and collective self-determination was replaced with an ‘alternative’ vision of constitutional authority, constitutionalism’s center of gravity shifted towards increased fundamental rights protection.Footnote 28 This conceptualisation of a political regime in terms of a rights-based language has reduced the role of political power in developing and sustaining authority, increasingly allocating the evaluation of political decisions to the judiciary.Footnote 29 In a sense, the concept of constitutional identity has reinforced this tendency. Constitutional identity emerged in the legal field as a counter-majoritarian legal tool that allowed courts to put a check on constitutional change: in 1973, India’s Supreme Court established the Basic Structure doctrine, proclaiming the unamendability of certain features and elements of the Indian Constitution to the extent that these elements are fundamental for the integrity of the constitutional edifice.Footnote 30 With this ruling, the Court affirmed the constitutional review of constitutional amendments and substantial limits to the democratic powers of the Indian Parliament.Footnote 31 In view of the authoritarian uses of constitutional identity, commentators have argued that the concept should be reframed within this original perspective of protecting basic principles of constitutionalism.Footnote 32 The purpose of constitutional identity is indeed to adapt constitutional government to the particularities of domestic polities, not to supplant the former with the latter.Footnote 33
Moreover, next to overevaluating the role of the judiciary regarding a concept that relates fundamentally to collective decision-making, eclipsing the political and socio-cultural aspects of the community risks alienating citizens from the constitutional order. A constitution, nor a (supra-)legal order, generates authority or binding normativity merely by its very creation. ‘Abstract constitutional principles’, as Martin Loughlin puts it, ‘acquire determinate meaning only because of what has been learned, especially through historical instances of what happens when people fail to uphold them’.Footnote 34 A constitution can be understood as a symbolic form through which society gives itself meaning; however, the normativity, authority, and validity of these principles, as well as the allegiance to a political association, are generated through historical, social, and cultural factors and processes.Footnote 35 And only through lived experiences, shared practices, and common interpretations can constitutions provide action-guiding and community-founding effects,Footnote 36 resulting in shared normative commitments (eg, respect for human dignity, the recognition of the equal moral status of persons, the commitment to limiting arbitrary power) that constitute what Neil Walker calls an ‘underlying moral order’.Footnote 37 Hence, constitutional rules and entrenched rights cannot be treated as normatively complete, as they require democratic grounding or at least some minimal societal acceptance.Footnote 38 As such, emerging and referring back to the underlying moral order, constitutional democracy and constitutionalism are inherently iterative and involved in an unresolved dialectic tension. Privileging one over the other inevitably creates a normative imbalance, either with the risk of undermining constitutional protections or neglecting democratic vitality.
C. Preconstitutional and constitutional identity in terms of nationalism
The distinction and tension between preconstitutional identity and constitutional identity does not seem to be merely inspired by the contrast in legal scholarship between constitutional democracy and constitutionalism. It also resembles the analytic dichotomy that emerged in nationalism studies,Footnote 39 which concerned two different understandings of the concept of ‘nation’.Footnote 40 Since its elaboration, this distinction between the ‘ethnic nation’ and the ‘civic nation’, as well as the preference for the latter conception, has underpinned many systems of classification of nationhood. In turn, this has imbued the actual debates on constitutional identity.
It was the German historian Friedrich Meinecke who at the beginning of the twentieth century first observed a distinction between a cultural and a political understanding of the nation.Footnote 41 In this view, ethnocultural interpretations of the nation are based on the idea of shared ancestry, history, and cultural traditions (religion, language, etc.).Footnote 42 Here, the nation is believed to be a community that came about organically. Solidarity among the members is based on cultural and ethnic features. It is therefore exclusively reserved for national citizens who are connected by blood ties and emotionally motivated by a sense of belonging. Civic nationalism, on the other hand, explains the nation as a political community with a democratic polity that acknowledges political equality among its members.Footnote 43 This strand of nationalism emphasises citizen affection for the political institutions, the constitution, the legal order, and its underlying principles and values. Solidarity flows from adherence to these values and principles. Because national affiliation follows processes of choice, allowing one to acquire it without considering the ethnic or historical background, civic nationalism is considered to be inclusive, voluntaristic, and ‘neutral’ with respect to the ethnocultural identities of their citizens.Footnote 44
These distinctive nationalism ideal types seem to have permeated the views on constitutionalism: they surfaced in analyses of historical constitution-making. Ulrich Preuss, for example, contrasts two understandings of constituent power: one French civic-based conception, allegedly developed by French revolutionary Abbé Sieyès and grounded in the idea of citizenship and demos. On the other hand, a German culture-based conception, advanced by Carl Schmitt and based on a pre-political and eternal ethnos.Footnote 45 With the first discussions on what ‘national identities’ in Article 4.2 TEU could mean the ideal types also appeared in the distinction of preconstitutional (or national) identity from constitutional identity.Footnote 46 Soon the civic/ethnic distinction became associated with the contrast between constitutional identity and other forms of identity. Following this distinction, pre-legal conceptions of ‘the nation’ and elements of preconstitutional identity have come to be distrusted or they have been discarded from constitutional identity altogether.Footnote 47 At most, preconstitutional identity can relate to constitutional identity when it shows a particular constitutional status and it is simultaneously respecting human rights and the rule of law.
However, as the safeguards of constitutional law seem too limited to prevent illiberal constitutional counternarratives, constitutional identity is often explained as underlying a reflective civic attachment to values that are embedded in political culture, and the norms and procedures that are established in a liberal democratic constitution.Footnote 48 As such, constitutional identity is regularly associated with the ‘thicker’ notion of Habermasian constitutional patriotism. The democratic constitutional state is in this view self-sufficient. It exists without pre-political foundations. Political allegiance is owed neither to a national culture (as liberal nationalism advocates) nor to the worldwide community of human beings (as cosmopolitanism would want).Footnote 49 Replacing the nation as the source of civic solidarity and attachment, the constitution becomes then ‘a symbol of the values on which we might rebuild social integration in a secular, ahistorical, culturally heterogeneous society’.Footnote 50
As attractive as this avenue seems to be, advocates of constitutional patriotism must admit that it remains difficult to conceive a legal order that’s not preceded by the existence of a community, let alone that this order would generate solidarity and legitimacy merely on the basis of its own underlying values. Habermas himself recognises that citizenship is embedded in a civil society that is ‘nourished by […] springs that one may term “pre-political”’.Footnote 51 By acknowledging the contingent and distinctive experiences and cultural practices of a community, constitutional patriotism arguably does not aim to discard national identity but rather to ‘decenter’ it by depriving it of its political function.Footnote 52 In this respect, constitutional patriotism comes close to the view of civic nationalists, who envision a collective identity that is capable of transcending ethnocultural preoccupations. However, neither Habermasian liberals nor civic nationalists are actually addressing the problem of identity itself. Nor do they tackle the idea of a collective community that precedes the political demos.Footnote 53 Instead, they consider citizenship as a way of linking local attachments with universal liberal commitments.Footnote 54 As such, constitutional patriotism reflects a liberal strategy that seeks to preserve or cultivate a form of national community that is compatible with liberal political commitments.Footnote 55
It is nevertheless a misconception to believe that mere rational attachment to political principles could be an instrument for social cohesion and an antidote to exclusion and intolerance. First, communities that build on this principle might exclude views that disagree with the shared commitments and basic political principles as well. They could even go as far as precluding anyone suspected of rejecting these principles.Footnote 56 Second, as some liberal nationalists have pointed out, the idea of a post-national world that developed by placing freely chosen universal political principles as the basis of political solidarity is merely an illusion: instead of advancing in a one-directional way, states lurch between either homogenisation in moments of national birth and times of crisis, and accommodation of diversity during times of stability and prosperity.Footnote 57 Third, because national belonging presupposes more than a voluntary association of citizens that make, criticise, and reflect on shared political values and principles: a pre-political, cultural community that finds agency in the state in view of collective self-government.Footnote 58 Citizens tend to believe the political community to be an encompassing phenomenon that is distinct from the state and precedes public institutions and legal-procedural rules.Footnote 59 This ties up with the resilient idea of popular sovereignty, namely the belief in the existence of a people or a nation behind the state, that not solely legitimises state power, but equally functions as an identitary reference point for the community.Footnote 60 It becomes hard then to conceive a ‘civic’ collective self-image that could prevail on a nationality that is conceived as a grounding claim to ‘ownership’ of polities; especially since these polities were historically ever so often expressly constructed as polities of (and for) an ethnocultural community.Footnote 61
We are left with a catch-22. On the one hand, we must account for a preconstitutional collective community that precedes the political demos, and for the historical, social, and cultural factors that bind people to a constitution. On the other hand, we must safeguard the liberal specificity of constitutionalism and leave room for a distinction between liberal and illiberal appeals to constitutional identity, avoiding that any appeal to a preconstitutional identity naturally counts as a part of constitutional identity.
3. Constitutional identity as narrative identity
So how is this preconstitutional identity to be thought of, as more encompassing than merely vestigial in explicit constitutional principles, but as less than a robust immutable core that can spill over into ethnocentrist and populist claims?
Returning to the paradoxical relationship between preconstitutional and constitutional identity may offer a clue. This relation of dependency, where preconstitutional identity is temporally prior yet only constructed from the more original constitutional reality, reveals a distinctly narrative logic. It is what Gerard Genette has referred to as the ‘paradoxical logic’ of fiction: in stories, elements gain their meaning from things that happen later.Footnote 62 It is paradoxical because what happens temporally first occupies a secondary place in narrative logic. Sherlock Holmes gathers the traces of a case, but it is the solution of the murder case at the end that places them in their narrative relationship. It is the later events that construct the earlier events as meaningful.
Peter Brooks argues that the same logic guides American constitutional interpretation; judges construct history in such a way that the verdict in the case becomes the logical outcome, but in a way the verdict is more original in that sense, and a history is built from the verdict: ‘The form taken by all constitutional interpretation follows this model: that the proposed interpretation realizes the true meaning of the constitutional narrative better than the alternatives. It provides the better ending, defined in terms of the ending that makes better sense of the plot leading up to it’.Footnote 63 American constitutional theorists from Ronald Dworkin to Jack Balkin have pointed to the narrative construction of constitutional interpretation; the constitutional narrative threads itself together with each judgment as an episode in a chain novel or as a connection of origin stories with future ideals in a story of redemption.Footnote 64
Constitutional identity as a selection and construction of constitutional principles can also be analysed from that narrative logic. This has been observed in the literature. Michel Rosenfeld, for instance, argues that the continued existence of a constitutional identity depends on ‘willingness and ability to weave together a meaningful and integrated constitutional narrative’.Footnote 65 A narrative is needed that shows why a particular constitution is this constitution, and why certain elements are central to this constitutional system. That narrative can consist of historical sources, parliamentary debates, the text of the constitution, decisions by courts, etc. If they are puzzled together in a certain narrative relationship, broad lines can be brought out that make up the uniqueness of a constitutional system.Footnote 66
The centrality of narrative mostly comes to the fore in sociological or phenomenological approaches to law, showing that a constitution does not simply acquire its legitimacy and effect as a legal norm in force. A constitution can change the world only if people are receptive to the story woven around it and if the norms are translated into a narrative and values that become part of a people’s lived experience. What is needed is a ‘constitutional imagination’,Footnote 67 symbolic and narrative structures around the constitution that represent the political reality of constitutional reality as appealing. It is through that constitutional narrative that a constitution can do its work, that the ideas in it are extended into a ‘broader social world’.Footnote 68 In that story, the people play the leading role. Only when they see themselves as subjects of the narrative can the basis that the constitution proclaims (‘we the people’) become a reality; the constituent power owes its success to its ‘narrative achievement’ of engaging the constitution in the imagination of a people in a larger collective history.Footnote 69
The narrative nature of constitutional identity has been alluded to in the literature several times. Rosenfeld sees it as a recurring feature in the several elaborations of constitutional identity: ‘what binds all these efforts together in all cases involving liberal constitutions is the search for an all-inclusive image or narrative’.Footnote 70 Gary Jacobsohn has stated that constitutional identity, just like personal identity, cannot be ‘abstracted from the larger historical narrative of which it is a part’.Footnote 71 Kermit Roosevelt has shown that American constitutional identity is rooted in a ‘story of continuity’: the founding fathers established the values of liberty and equality, and the course of history is understood as the gradual unfolding and realization of these ideals. In Roosevelt’s view, this is problematic because the story of continuity overlooks constitutive negative elements – such as slavery in the original Constitution – and, by denying breaks and ruptures, it dismisses the power of resistance and risks repeating past mistakes.Footnote 72
All of these authors all pointing to central features of narrative: while Rosenfeld thematises its unifying function – narrative weaves separate elements together in an overarching plot – Jacobsohn alludes to its temporal logic in that narrative establishes a certain connection between past, present, and future. Roosevelt’s work, in turn, serves to emphasise the selective and seductive nature of narrative: in a story, certain elements are selected and emphasised at the expense of others, with the possible effects of exclusion and distortion.
But even though the notion of narrative has been inspiring to constitutional identity literature, its logic has not been systematically brought out. There have been some references to Paul Ricoeur (who coined the term of narrative identity) and Manuel Guțan has analysed constitutional identities as competing historically driven narratives, to argue for a more pluralist and deconstructivist notion of constitutional identity.Footnote 73 But the dialogue with narrative theory is almost non-existing and a broader overview of the implications of constitutional identity as narrative identity is missing.
Yet the narrative logic is central for understanding and accepting the legitimacy of a constitutional system. And since narrative logic is an inherently temporal logic, it can further help us clarify the centrality of the temporal dimensions of constitutional identity. Aristotle’s definition of a tragedy was already that it had to involve a complete action, ‘that which has a beginning, a middle, and an end’.Footnote 74 That may seem trivial as long as one doesn’t see how this narrative logic of meaning changes the world. An arbitrary concatenation of facts becomes a temporal sequence. What precedes thereby becomes essential to the definition of constitutional identity. Constitutional identity can never simply be about a given constitutional system, but it always needs a narrative about how that constitutional system took shape and where we want to see it go. This is why preconstitutional identity is integral to constitutional identity: elements of preconstitutional identity take on meaning as a unit in the narrative of constitutional identity. In this, it mirrors the working of national identity as protected by the identity clause and as analysed by Elke Cloots. ‘A Member State’s national identity cannot be invented and composed on the spot’, she argues: it relies on evidence through ‘parliamentary debates, historical records, settled case law by the highest courts, etc’.Footnote 75 It relies, in other words, on a story with a development: through a string of traces, the Member State demonstrates that certain practices are effectively part of its identity. And ‘if such sediments are absent, this might be an indication that the rhetoric of national identity is being used as a fig leaf for other motives’.Footnote 76 Analogous to Sherlock Holmes, Member States and judges search for the traces of their history and connect them to a purpose, thus arriving at constitutional identity and projecting a vision of the future.
As noted above, this narrative logic is paradoxical: because the temporal logic of narratives is retrospective, preconstitutional identity becomes a projection, rather than a given. The historical facts to which constitutional identity appeals in its narrative become themselves projections, linked to normative justifications of constitutional principles. In this way, a narrative conception of constitutional identity evades the catch-22 we faced in Part 1. On the one hand, a narrative conception goes against a strictly civic model of constitutional identity. If constitutional identity is attractive as a concept to liberal philosophers and jurists, it is often because the narrative dimension is partly denied; because the constitution consists of a set of human rights/rule of law, it does not require narratives that formulate a ‘we’ anchored in time. Unlike the substantive group identity of a shared race, origin, nation, religion, etc., constitutional identity is seen as a more open identity, making constitutional patriotism an alternative to sociocultural patriotism that always carries the risk of turning into totalitarianism. The appropriation of constitutional identity as discourse by populist or anti-democratic politicians and courts is therefore seen as an outgrowth or abuse: it is a constitutional identity without constitutionalism as its basis. While a ‘true’ constitutional identity foregrounds civic identity linked to explicit norms, appeals to ethnocultural identities return to a preconstitutional time with problematic elements. The narrative conception shows that this temporal return is no abuse per se: preconstitutional identity is indeed part of constitutional identity, because identity is built upon a meaningful narrative connection between past, present, and future. No constitutional identity can work ahistorically, apart from lived experience, apart from the imagination that gives the constitution its power in the world. It is often precisely the tragic elements of preconstitutional history that make for a strong narrative of constitutional identity. The South African open constitution has a close connection to a history of apartheid; the German constitution to Auschwitz, the American to slavery. The German Constitutional Court made this explicit by arguing that the Constitution has to be read as a negation of the preconstitutional Nazi experience.Footnote 77 It would be wrong to deduce from this the irrelevance of preconstitutional reality; to the contrary, in this negation, preconstitutional identity is used as a narrative framework to determine constitutional identity. But preconstitutional experience doesn’t have to be explicitly mentioned to frame a constitutional identity. The shell of an (in name) open and inclusive rule of law contains a past that is intertwined in various ways with the constitutional present. If constitutional identity is a narrative identity, then preconstitutional identity is always the ghost in the shell.
On the other hand, a narrative conception also evades the radicalisation of an ethnocultural core through its inversion of temporality. A narrative lens on constitutional identity engages ethnocultural elements without fixing them as organic elements. Culture and a shared past themselves become projections from an identity construction, and in this sense are never pre-given as facts to be dug up from tradition. This goes against the populist understanding of constitutional identity ‘as something fixed once and for all, pre-determined before the enactment of a legal order and stored away, untouchable by the ravages of time’.Footnote 78
To recognise constitutional identity as a form of narrative identity is not an abstract philosophical move, but changes how constitutional identity is legally conceptualised. If constitutional identity is most accurately understood in narrative terms, then legal actors must treat it not as a static essence to be discovered but as a situated construct that must be interpreted, contextualised, and consciously authored.
An anti-narrative construction of constitutional identity is evident in the infamous Hungarian Constitutional Court’s Judgment when it used the national identity clause to oppose the EU relocation scheme during the EU migration crisis (Decision 32/2021. (XII. 20.) AB). It invoked Hungary’s constitutional identity in objectivist and essentialist terms: human dignity is used to protect a social environment which is ‘given’, ‘traditional’, ‘independent of the individual’, and which consists especially of ‘ethnic, linguistic, cultural and religious determinants’. This environment supposedly creates ‘natural ties, determined by birth’ which are ‘difficult or impossible for individuals to change’. The ‘heritage’ and ethnic continuity as the constituents of Hungarian constitutional identity must be defended when EU measures threaten it. This is an anti-narratological account in that it masks the constructed nature of identity, the contestation and pluralism between elements to construct a narrative arc in history before it turns into heritage, and the evolution that continuity allows for (reducing constitutional identity to a static core rather than recognising it as a dynamic story). Such logic arguably follows an is-ought reasoning: because Hungary has historically been defined by a particular ethnocultural identity, the Court argues, it must continue to be so. One might compare this to the Swiss minaret ban, where the architectural absence of minarets in the Swiss landscape was transformed into a legal basis for prohibiting their future construction, turning historical circumstance into normative constraint. The objectivist legal logic is mirrored in the Hungarian Minister of Justice’s comment that ‘the constitutional self-identity of Hungary is a fundamental value not created by the Fundamental Law – it is merely acknowledged by the Fundamental Law’. This frames constitutional identity as a given and sidesteps narrative responsibility to account for how identity is transmitted and made intelligible within the EU’s pluralistic constitutional order.
This can be contrasted to a more narratively attuned approach, such as that taken by the Court of Justice of the European Union’s comments in the Sayn–Wittgenstein case, where Austria’s abolition of noble titles was challenged by an Austrian national residing in Germany, who wanted to keep the title ‘Fürstin von Sayn-Wittgenstein’.Footnote 79 The Court acknowledged Austria’s historical commitment to egalitarianism and its prohibition on aristocratic distinctions as part of its constitutional tradition. But unlike the Hungarian example, the ECtHR did not treat this tradition as self-justifying but rather offered a carefully reasoned justification that balanced constitutional identity with personal identity and the right of free movement.
The response to the Hungarian and similar uses of constitutional identity does not lie in denying pre-constitutional arguments, but rather in engaging with them dialogically. In fact, the opinion refers to Austrian history as an element of its identity (one can think, for example, of anti-Habsburg sentiments to justify the fundamental choice to abolish nobility titles). Even where constitutional identity would be used to defend unamendable principles, a narrative conception demands that the interpretation of those principles be open to reasoned contestation.
This narrative conception of constitutional identity aligns more closely with the European situation of the coexistence of different identities and national legal orders within the same legal space. It is the dialogical approach to constitutional identity which can make Article 4(2) TEU function as a gateway for a shared normativity between European and national legal orders, in which national actors such as parliaments and constitutional courts may, through preliminary references, bring questions about their constitutional identity before the Court of Justice of the European Union. In doing so, the Court is informed about the constitutional identities of the Member States and can link this normative content to the Union’s values, objectives, and provisions. This is in line with Article 4(3) TEU, requiring the Member States and the Union to engage in loyal mutual cooperation.
Calls for a narrative approach to EU law have recently been made by Paul Linden-Retek. He criticises the reification of EU law, where social and historical relationships are reduced to static relations between things, and argues that the EU suffers from a ‘solidarity deficit’, operating more as a model of social management than one based on shared responsibilities and the public good.Footnote 80 He advocates for narrative intelligibility over strict legal coherence, proposing that EU law should no longer be presented as a coherent and indivisible whole but rather evolve towards a postnational constitutionalism where legal agency is collectivised and narrative interpretation engages with detail, context, and history.Footnote 81
More detailed applications of a narrative conception of constitutional identity lie beyond the scope of this paper, but in what follows we will conceptually address some binaries that structure the current approaches and address how the narrative conception alters them.
4. Constitutional and preconstitutional identity beyond six binaries
The temporal narrative logic of constitutional identity puts preconstitutional identity to the fore in the debate as the ghost in the shell of constitutional identity, but how exactly are the two intertwined? The narrative conception can help us to consider their connection and, by doing this, clarify how the ambivalence of ghost and shell deconstructs the ethnic-civic divide. We do this by investigating the relationship between constitutional and preconstitutional identity in six issues related to binaries that often come back and that are conflict points between an ethnic and a civic understanding of constitutional identity: continuity/change, sameness/difference, unity/plurality, self/other, fact/fiction, and affect/ratio.
Of course, there are many different constellations of the binaries within ethnic and civic conceptions of constitutional identity, and this list is by no means exhaustive. For example, the civic conception of constitutional patriotism starts from rational principles but often stresses the need for affective attachment to those principles. The schematisation into binaries is not intended to reduce the debate to simple oppositions, but channels it into some tensions that often recur, in order to bring those entanglements more to the fore via the narrative conception.
A. Continuity/change
The relationship of constitutions to continuity and change is dense and paradoxical. Constitutions are often meant to breathe new life into the political landscape – this is certainly true of revolutionary constitutions – but this reversal can only succeed if people identify with the constitutional narrative and can connect it to their own values and aspirations. Moreover, a written constitution ensures that changes cannot be made just like that, anchoring a given state of affairs. As we saw in the Indian Basic Structure doctrine, constitutional identity as a concept precisely arose as an issue that touches on the (un)changeability of constitutional values and the constitutional system, particularly within the debate between democratic majority rule and the judiciary’s role in protecting rights and values. The recognition of a special constitutional status to certain norms, values and principles means that one cannot touch them without changing the spirit of the Constitution.
Political Enlightenment thinkers already understood this ambiguity. Constitutions, as a kind of concretisation of the social contract, were seen as a way to realise the rationalisation and limit to power in real political orders. At the same time, they knew that this change was possible only if there was enough continuity with the preconstitutional reality and identity of a people. Montesquieu, in De l’esprit des lois, emphasised that laws must be consistent with the values and customs of a given community. Jean-Jacques Rousseau, who made constitutional projects for Poland and Corsica, also emphasised the preserving power of constitutions, stating that ‘[it] is less a matter of becoming someone different than you are, than to know how to preserve yourself as you are’.Footnote 82 Thus, the value of a constitution was not so much to erase a preconstitutional identity in favor of a totally new core, but rather to entrench the best aspects of that preconstitutional identity.
The idea of constitutional continuity was developed further in German legal theory with a notion of organic development. For Hegel, the Verfassung is a step in the self-understanding of a people, engaged in a longer process in which a people becomes self-conscious. Articles may be changed, but the entire political organism is gradually changing, and cannot be controlled by mere design. A society evolves organically, and the meaning of Verfassung as a political organism therefore also precedes that of a text that would shape that organism.Footnote 83
Contemporary authors continue to ask to what extent constitutional identity is dependent on and/or determined by preconstitutional identity. Michel Rosenfeld has analysed the ambivalent relationship of constitutional and preconstitutional identity: it takes a negation of preconstitutional identity for the constitutional order to be a fresh start, but at the same time it takes enough continuity with the preconstitutional identity(ies) for a people to perceive the constitution as ‘their’ constitution.Footnote 84
An ethnic understanding tends to emphasise the continuity of a preconstitutional and constitutional reality, often linked to the persistence of a particular ethnic core and historical origin story. In the civic framework, the emphasis is on the rupture of the constitutional founding: identity changes by having a constitutional system, and it cannot be traced back to a preconstitutional reality. Continuity is rather thought of within the constitutional, as a way of enshrining rights and basic principles.
A narrative conception of constitutional identity unites this interplay of continuity and change: narrative continuity is precisely the weaving together and transforming of elements from tradition in order to write a coherent story. In the plot of constitutional identity, preconstitutional elements are placed as units in a particular constellation and connected to a purpose to obtain the narrative of constitutional identity. Emplotment is a dynamic logic, Brooks argues: ‘plot makes events into a story’ and therefore ‘places us at the crossing point of temporality and narrativity’.Footnote 85 Courts and legal scholars, in a quest for constitutional identity, engage in emplotment: they weave history and the future together to show how a constitutional system acquires meaning. Plot is ‘the principle of interconnectedness and intention’ of narrative; and it is interconnectedness and intention that account for the continuity and change of preconstitutional and constitutional identity. From a certain narrative of the past that connects events and places them in an evaluative logic, an intention emerges to write a new constitutional story.
B. Sameness/difference
What must remain the same to preserve constitutional identity? An ethnic understanding of constitutional identity is based upon an image of identity as substantive sameness: communal identities are posited as the norm and source for the political and constitutional community, and it is argued ‘that these communities maintain their original character through time’.Footnote 86 It is analogous to what Luigi Corrias describes as the populist conception of identity: populists share the democratic conception of constitutional identity as sameness (believing authors and addressees of the constitution are the same), but the populist understanding radicalises this sameness claim: ‘it tends to narrow down identity to sameness and radicalise this notion. Character is the paradigm case of identity in terms of sameness: it points to a “set of lasting dispositions by which a person is recognised”’.Footnote 87 Constitutional identity is equated with such characteristics of a person as race, religion, language, etc.
In contrast, a civic understanding of constitutional identity focuses more on the accommodation of difference: the constitution provides open norms, but these are amenable to different communities and changing relationships. But in doing so, it cannot always point out the similarities with a previous state; by eliminating ethnocultural elements from the gaze, preconstitutional identities are pushed aside as irrelevant, while the success of any constitution is also built on recognition of previous identities.Footnote 88 A narrative understanding of sameness goes against a substantive identity conception and incorporates difference: by conceptualising constitutional identity dynamically, the same constitutional identity can persist as long as a general narrative can be woven over time.
This narrative conception also clarifies why constitutional identity does not need to coincide with one constitutional system. Rosenfeld gives the example of the U.S., where the Civil War amendments arguably negate a previous constitutional identity; and conversely of France, where from a material perspective significant similarities lived through succeeding constitutions. This is precisely one of the unique characteristics of a story, that its narrative coherence is not limited to a medium: ‘we can still recognise “the story” even when its medium has been considerably changed’.Footnote 89
C. Unity/plurality
What attracts liberal thinkers to the concept of constitutional identity is often that it seems to be an identity that leaves room for multiplicity; unlike ethnic identities, constitutional identity is built on human rights and the rule of law, and in this sense the ‘we’ of the constitutional subject can incorporate internal multiplicity. In some modern constitutions this is made explicit; the preamble to the Bolivian Constitution for example, states: ‘we, the people […] of plural composition’.Footnote 90 At the same time, there is the (ethnic) insight that constitutional identity can only take hold if it links to preconstitutional experience and requires a degree of homogenisation to speak as one. This dichotomy has already been criticised in the debate: according to some, it seems to be a misconception to believe that diversity necessarily leads to greater tolerance. Liberal nationalists such as Yael Tamir point out that, depending on social and political circumstances, nations shift back and forth between homogenisation and diversification. Gary Jacobsohn has argued against any homogenised concept of constitutional identity, arguing that there are always conflicting interpretations and identities at work.
A narrative view of constitutional identity captures this interaction while explaining the importance of unity creation. Narration is a ‘unifying action’Footnote 91 : in a story, events become episodes and thus become part of a whole. The representation as a whole ensures that there is a direction for action; the narrative goes somewhere. This emphasis on wholeness is also reflected in the psychological debate about individual narrative identity. Narrative identity focuses on providing life ‘with unity and purpose’.Footnote 92 In psychology, experimental research on narrative identity has been conducted since the 1980s, showing for example that writing down personal experiences in narrative form can have a healing effect because life experiences/stress are reduced to a coherent story, creating an opening for resolution and purpose.Footnote 93 There is an analogy with collective psychological functioning; through the creation of narrative unity in weaving together preconstitutional elements, space is created for acting as a political subject. Narrative integration reduces multiplicity to unity: different identities are combined or erased for an overarching unity that is the condition for collective action. In this sense, it is also more logical to think of preconstitutional identities in the plural; the various religious, ethnic, national, … identities are structured in a constitutional order in such a way that they are absorbed, dissolved, or suppressed by a larger unified narrative. This integration is not necessarily positive; the denial of Native American identities, for instance, has contributed to the founding of an American constitutional identity.Footnote 94
In legal theory, integration as a concept has been linked to constitutions by German legal scholar Rudolf Smend. Building on a Hegelian idea of organic continuity, he sees modern states as an ongoing dynamic process of integration, in which a people creates a spiritual unity – which needn’t be an explicit sense of citizenship, but a belonging that is the basis for recognition of order. States are not the achievement of that unity, but precisely that ongoing integrative dynamic process. This happens, according to Smend, through persons (leaders and heroes) who represent unity, functional processes such as elections and political debates that channel politics, and substantive embodiment of unity through symbols such as a shared history and cultural rituals. The constitution plays a central role in the integration process because it provides the legal blueprint for how it should be done: it creates organs, establishes functional processes, and defines substantive elements such as citizenship, territory, symbols, and rights:
The constitution is the legal order of the state, or more precisely, of the life through which the state has its reality – namely, of its process of integration. The meaning of this process is the constantly renewed production of the totality of the life of the state, and the constitution provides the legal norms for various aspects of this process.Footnote 95
Smend’s view of societal integration is too harmonious with the risk of becoming totalitarian (he doesn’t spell out the dangers of integration and saw Italian fascism as a good example of modern integration), but theoretically he has shown how the legitimacy of a constitutional order depends on a set of values with preconstitutional roots. There may be an inclusive promise in his theory by focusing on its dynamic aspects and the denaturalization of legitimacy (which never is a matter of course, but always has to be reconstructed). We can use his theory to articulate constitutional identity as an inherently dynamic concept: constitutions capture the processes in society that reproduce identity permanently. Constitutional identity can then not be thought of as given but consists of the specific forms of integration of a given society. Identity is in the integration, which is in the society, not in the constitution itself.Footnote 96
Combining narrative unity and this idea of integration, a view of the unity of constitutional identity appears that is different than populist substantivism. Corrias argues that the populist view of unity is ‘that the people (in the singular) is an existing entity present as a political unity’.Footnote 97 Representation therein becomes merely giving voice to the people with its one interest and will. In a Lefortian analysis, Corrias shows that this image is erroneous; even elections are not the moment when the people show themselves as unity, because citizens become a number: ‘In the “most democratic moment”, the people falls apart into a plurality of individuals’.Footnote 98 This means that unity can only be constructed through representation: ‘Unity is thus not a given, as the populist would have it. Rather, it is constituted in the constant interplay of institutions claiming to act on behalf of and thus to represent the people’.Footnote 99 Thus, unity is ‘nothing more or less than a represented unit’ and ‘this implies both that representation is constitutive for politics and that every claim to unity is necessarily a political claim, and as such remains contestable’.Footnote 100 The political claim is a narrative claim, to see a certain narrative constellation of units as ‘our’ constitutional identity. A different story is always possible, and so a dynamic notion of union, rather than unity, comes to the fore.
D. Self/other
Who is the subject on which this constitutional identity is based? The constitutional self must distinguish itself from another in time and from other constitutional selves. As Lindahl puts it: ‘the representation of this people is always also the de-presentation of that people, as a result of which those who are included are never simply part of “the” people’.Footnote 101 The relationship with the preconstitutional self is vulnerable because the constitutional subject exists by grace of the construction of a preconstitutional subject that logically leads to the constitutional subject, but at the same time involves its negation. The self must be made strange, but not so strange that the people cannot recognise themselves in it.
An ethnocultural understanding of the people will be finding the constitutional self in a shared tradition or heritage. In its exclusion of (religious, racial, linguistic…) minorities and immigrants, this ethnocultural conception others people to the extent that this constitutional self doesn’t respect the liberal base of modern constitutionalism. That’s why a civic conception of constitutional identity either chooses to leave out a founding self in a legalistic focus on the sum of constitutional principles and practices, or posits the self as an imagined community, based on shared principles and values, rather than on tradition.
The narrative conception of the self shares the constructivist image of the people as imagined community. ‘Stories are made, not found in the world’.Footnote 102 The narrative self is ‘a result of discursive praxis rather than either a substantial entity having ontological priory over praxis or a self with epistemological priority, an originator of meaning’.Footnote 103 As long as the self of constitutional identity is seen as something which is found rather than made, hidden in laws or national history, it will remain a mysterious entity that can be abused by populist discourse. Because the self must be made, self-definition is constitutive rather than descriptive. Margaret Gilbert has shown how the constitution of a collective subject is also always a linguistic one; the difference between two people walking side by side and two people walking together often has linguistic origins by making it explicit (‘shall we walk together?’).Footnote 104 This linguistic centrality in narrative construction also makes it logical for the constitution of a constitutional subject to arrive at a written text. In a constitution, the people are literally subjectified. ‘We the people’ is the textual subjectification that creates a self as the basis for constitutional identity. This brings us back to the paradox of constituent power, which shows itself here as circularity in the narrative self: the declaration that we speak together is a claim that creates the possibility of speaking together. The narrative conception refutes the populist constitutional claim as exposed by Corrias, ‘that there is an absolute primacy of constituent power vis-à-vis the constitution and the rules and powers derived from it’.Footnote 105 The populist believes that a pre-given people determines its own future, but this does not correspond to the paradoxical logic of constituent power, and the ‘strange temporalities and aporias the paradox gives rise to’.Footnote 106 Constituent power is prioritised because any constituted power depends on a constituent power for its legitimacy, but that constituent power itself already relies on constituted power for its legitimacy.Footnote 107 The paradoxical logic of narrative does justice to that paradoxical logic of constituent power, through the interaction between pre-given community and constitutional subject in the narrative projection.
In a narrative conception of the constitutional self, however, more so than in a civic conception, tradition does get its place. The narrative conception of that construction taps back into an ethnic understanding by showing that preconstitutional identities are incorporated. Rosenfeld distinguishes two steps in the demarcation of a constitutional self: first, as pure negation: ‘The constitutional subject acquires a distinct identity by negating that it is (the same as) the preconstitutional subject, or a mere product of existing cultural, historical, ethnic, or religious identities’.Footnote 108 Once that constitutional identity is sufficiently grounded, internal differences may come to the fore. ‘The second stage is marked by a selective incorporation of discarded identities rather than by any wholesale return to preconstitutional identities’.Footnote 109 In this way, the constitutional self is not a fixed core but a process of homogenisation and differentiation. The constellation of preconstitutional identities in the constitutional self evolves. This means that no self can be found in a preconstitutional past that drives the constitutional present.
Through the negation and incorporation of preconstitutional identities, it creates a narrative for the self, effectively integrating the self and giving it the capacity to act. In this, the narrative constitutional self is not merely a fictional self: the preconstitutional identities it incorporates are also built on factual components (tragic preconstitutional material circumstances can lead to a very different constitutional self). But in the self as construction, they are created into a new narrative that can continue to evolve.
E. Fact/fiction
This leads us to the fifth binary of fact and fiction. Should we consider (pre-)constitutional identity as a combination of facts out there or rather as a mental construct?
The ethnic understanding of constitutional identity, as we saw, is based on the belief in an inherited subject – a factual substantive core that can be excavated from history. Constitutional identity and preconstitutional identitites are then linked in that the substantive facts are preserved. A civic understanding of constitutional identity based on an imagined community is more focused on a constructed and projected fiction, a subjective self-understanding that we consciously construct and then make into an objective reality.
A narrative conception of constitutional identity dismantles the distinction between subjective self-understanding and objective historical facts. As Jack Balkin writes of the story of the American constitution: ‘A story like this is not “just a story”. It is true for you because it is part of you, because you see yourself as part of it. If you are committed to a narrative in this way, it is not just a story, but a just story, an appropriate story. And if you are committed to it in this way, it becomes more than a story. It becomes a way of life’.Footnote 110 Only an American could write about the constitutional story in such a lyrical way, but the logic Balkin describes is the same in countries where the constitution fulfills a less visibly symbolic function: ‘Constitutional stories construct collective subjects with collective destinies who engage in collective activities. Constitutional stories bind together human beings existing in different times and places as one people’.Footnote 111 Preconstitutional identities are the units to select and construct a constitutional narrative. But it is not simply selection; sense-making through narrative is a making, a creation. As we saw above, preconstitutional identity itself becomes a projection from the constitutional present. That construction allows us to see ourselves and our ideals as an elevated/logical next step in that history.
This bridging of fact and fiction also applies to persons. As Stephen Jay Gould says in an interview, ‘America as a country is too young to have mythic heroes, and therefore we have to construct real human beings. There was a man named Abraham Lincoln […] But there’s also a myth named Abraham Lincoln’.Footnote 112 Modern constitutional states cannot fall back on Odysseus for their story, and so they create myths of people and historical events, but in mythologisation, these factual figures and moments become something else. Even if the Lincoln myth consists of things he really did during his life, the sum of the selection is a new creation.
Constitutional identity emplots and thus fictionalises the preconstitutional past, but in this fictionalising contributes to constructing a new factual world. In this sense the fictive/real divide is problematic; it is fictive not in the sense of imagery, but imagined,Footnote 113 and both preconstitutional and constitutional identity are constructed fictions with real effects.
F. Affect/ratio
Finally, a narrative conception can illuminate why the transition from preconstitutional to constitutional identity is not equivalent to that of an affective group feeling to a rational collective order. The ethnic view of constitutional identity is usually associated with affectivity; solidarity is the result of an emotional belonging through cultural and ethnic characteristics. In contrast, the civic view of constitutional identity places more emphasis on rationality; we unite in a political community to ensure certain logical principles and human rights.
Rationalisation does indeed form part of the transformation from preconstitutional to constitutional identity, putting principles and predictability to the fore. The belief in a constitution as a genre founding a new order is in line with other genres such as the pamphlet and the manifesto, which rose in popularity simultaneously with the first great wave of modern constitutions in the 18th and 19th centuries, and which are also built on the belief in the possibility of rational community design.Footnote 114 Rousseau saw the great advantage of constitutions already in transforming preconstitutional affective group identity into a constitutionally stable and rationalised written basis: ‘Passions are fleeting and change their object; but the effect of a good constitution endures as long as the constitution itself, and no people can remain free except for as long as there is freedom’.Footnote 115
But the success of this rationalisation relies on affective appeal. Rousseau emphasises that it is through amour de la patrie that his constitutional prescriptions for Poland will work. ‘Games, festivals and solemnities’ have to be specifically invented for the constitutional order to engage people emotionally.Footnote 116 Contemporary constitutional sociology has confirmed this importance of ‘constitutional ritualization’.Footnote 117
Stories address this affective need. The narrative functioning of constitutional identity relies on imagery, style, evaluative presentation, and identification with characters. Stories engage us. The American constitutional story of freedom related to the colonial experience and the German theme of human dignity from Nie wieder krieg [Never again war] are obvious examples. The constitution acquires a symbolic function in the story of a society, enabling its operation as an instrument. Max Lerner called the constitution the ‘totem’ of the American people ‘as an instrument for controlling unknown forces in a hostile universe’.Footnote 118 Durkheim’s insight that modern democracies rely on complex symbolic processes, just as premodern societies do, equally applies to the symbol of the modern democratic constitutional state, the constitution, as the limit of power and carrier of human rights. Even countries where the constitution plays a less visible role rely on this affective identification. If the constitution acts as a totem, it is precisely as a modern totem that erases its totem-ness. The constitution is a paradoxical symbol because it works by erasing its symbolic narrative work. Law as written order creates the promise of an ideological and timeless order according to rational principles. Preconstitutional identity as ghost in the shell of constitutional identity shows that the symbolic work on which the operation of constitutions rests encompasses much more than a functional summation of legal norms.
5. Conclusion
In the first part of this paper, we zoomed in on the notion of constitutional identity in contrast to national identity and identified two problems with a legalistic notion of constitutional identity: its conflation of constitutionalism with constitutional democracy and its reproduction of a sharp distinction between ethnic and civic. In this way, the question arose of how preconstitutional identity could be thought of as ghost in the shell of constitutional identity without thereby undermining the liberal promise of constitutional identity in a return to sociocultural ethnic identities. In the second section, through a conception of constitutional identity as narrative identity, it became clear that preconstitutional identities are always integral to the construction of constitutional identity in establishing a meaningful relation between past, present, and future. A narrative conception of constitutional identity can, on the one hand, recognise sociocultural elements as a full part of constitutional identity to do justice to the symbolic effect of constitutions, which always relies on connecting to lived experience of a people. On the other hand, it avoids substantive traditional identities by presenting the preconstitutional not as a core that can be found in history, but rather as a projection from a narrative in the present. The constellation of preconstitutional and constitutional identity was explored further in the third section, which revealed how both are intertwined across six binaries.
For continuity/change, we showed how narrative plotting bridges continuity and change by weaving together preconstitutional elements into a constitutional narrative that connects commitments to tradition. For sameness/difference, a narrative view of constitutional identity provided a picture in which differentiation can be integrated through narrative continuity as long as there are meaningful links in a larger constitutional narrative. For unity/multitude, we showed how the narrative construction integrates preconstitutional identities continuously into a meaningful whole, which is the basis of action, but which itself exists only as represented unity. For self/other, we showed the constitutional self as narrative self is a discursive praxis, which is made rather than found, and which through a circular logic moves back and forth between preconstitutional identities and constitutional self. For fact/fiction, we showed how constitutional identity bridges fact and fiction by transforming factual preconstitutional elements into a fictional entity that thus writes a narrative with factual consequences. For affect/ratio, the narrative operation of constitutional identity explained how people become involved in the constitutional order through narrative engagement where the constitution becomes a paradoxical symbol as the basis of political identity.
In this analysis, the narrative conception was primarily a frame to gain a more systematic understanding of constitutional and preconstitutional identity as related to the ethnos/demos divide. It is not meant as a normative ideal. A story is morally neutral, or even rather morally suspect: it always conceals more than it shows. Stories have the power to draw people into irrational and illiberal discourse. Nor is it meant to reduce constitutional identities to one operation that can explain everything. Constitutional identities emerge differently, and the degree of presence and constellation of preconstitutional identities is different for each constitutional identity, to be weighed in every situation. Narrative did provide a frame to theoretically explain the general effect, which can account for the differences. There are countless possible stories, but constitutional identity follows the general logic of story: courts and jurists engage in emplotment to push tradition, present, and aspirations together into a coherent narrative. Through the narrative frame, we have tried to make clear why it is impossible to cast aside the preconstitutional as irrelevant. Narrative will always be the mode in which constitutional identity is constructed, and in this sense, it is naïve to dismiss the populist return to preconstitutional identities as a mere abuse of constitutional identity. Rather than defining constitutional identity narrowly functionally, we would better take seriously the complexity and interconnectedness of that narrative construction.
Maybe in this way, the narrative conception of constitutional identity can also offer some guidance in the debate surrounding populist and/or illiberal abuses of constitutional identity. If we want to puncture the narratives of populist policies, we can point to the retrospective logic of narrative, where the past is never a given. The narrative workings of constitutional identity make the integration of ethnocultural elements inevitable, but the narrative also means that this integration is never given, but always starts from contemporary values and norms, and projects from there. Narratives of constitutional identity are ‘constructed fictions, not revealed truths’.Footnote 119 In this way, a narrative conception of constitutional identity also may offer a more nuanced understanding of the logic of populist abuses of constitutional identity: if every construction is a narrative with its mechanisms of exclusion and composition, then we have to go beyond simple oppositions between valid and invalid uses of constitutional identity, or between civic and ethnocultural constructions. Narratology may offer some help in finding a balance and considering which elements remain outside the narrative. Preventing deus ex machina’s, preventing the story from turning into a doctrine, and confronting other facts to break open the story, only works if we recognise constitutional identity to follow the logic of narrative. We need more attention to the actors having the power to construct the stories of constitutional identity, its addressees, its tones and genres. This is a different approach than setting aside preconstitutional elements as irrelevant. Every constitutional community has its own identity, and it is naive to think that this identity can be built only on rational principles of the present. As preconstitutional identity will always be a ghost in the shell of constitutional identity, it is better to keep the genie in the bottle than to ignore it and let it run its course.
Acknowledgements
The authors would like to thank the participants of this symposium, as well as the anonymous reviewers of European Law Open, for their valuable comments and suggestions on this article.
Competing interests
None.
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