Throughout history, reference to the historical constitution of Hungary was used to achieve different and sometimes conflicting goals. Since 2012, it has become a constitutional concept after decades of abandonment. It appears in the Fundamental Law of Hungary (2012) and the jurisprudence of the Hungarian Constitutional Court (HCC) – linking it to the concept of constitutional identity. This chapter claims that the narrative of the Hungarian historical constitution as a constitutional concept is conducive to illiberalism. This is because political and constitutional actors have used it to oppose liberal values. Two arguments justify this claim. First, the contemporary claims on continuity and rights expansion cannot be verified when we contrast the contemporary narratives on the two most important constitutive components of the historical constitution, that is, continuity and rights expansion with legal measures introduced in the second part of the nineteenth and the first half of the twentieth centuries. Second, the relevant jurisprudence of the HCC suggests that the finality of introducing the historical constitution into the constitutional text and their subsequent linking to the concept of constitutional identity was to secure the traditional Westphalian understanding of ethnic-national sovereignty, mainly against the rule of law, that is, EU obligations and globalization.

This chapter explores how judicial mechanisms employed by apex courts have migrated across South Asia and Southeast Asia, using India, Pakistan, and Malaysia as examples. The chapter focuses on two case studies – Pakistan and Malaysia – to examine how judicial mechanisms, like the basic structure doctrine articulated by the Indian Supreme Court, have been strategically adapted by courts in Pakistan and Malaysia to strengthen their institutional power. This chapter considers the use of judicial rhetoric and constitutional comparativism in crafting opinions of popular salience by examining the distinct ways in which these Asian courts have engaged with foreign and comparative case law.

This chapter analyses constitutional intolerance on the basis of the Hungarian Church Law of 2011, which deregistered hundreds of religious organisations, attached special conditions to re-registration, and privileged a number of politically favoured religious organisations in return for their political legitimation and support. These micro-legal actions are analysed within the context of the notion of the “System of National Cooperation” and “constitutional identity”. Constitutional intolerance in Hungary appears to stem from a traditionalist commitment to protect traditional values: on the one hand, by strengthening the position of the main Hungarian churches, and on the other hand, by championing anti-liberal policies on gender and sexuality, including the prohibition from exposing minors to “gay propaganda”. But the varnish of Christianity is relatively thin: Hungarian society is thoroughly secularised with low numbers of church attendance, with language and ethnicity taking precedence over religion in their importance to national identity.

Chapter 12 considers the Europeanization of German law, resulting from the integration of Germany into the European Union and its project of harmonization of law. Basic devices for this process are explained, such as the direct effect and supremacy of European law. The tension this has created in German private law is demonstrated with a case study of the European antidiscrimination directive, which Germany reluctantly implemented. The case study presents a dispute under the German domestic regime that was eventually enacted. That dispute involved discrimination in the employment context on the basis of the applicant’s background growing up in East Germany. The tensions between the Europeanization of law and German constitutional law are also discussed.

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

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

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

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

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

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

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

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

This chapter reflects on whether and how large-N empirical studies can help our understanding of constitutional identity. It argues that although we cannot simply count and measure many aspects of constitutional identity, empirical analysis can help us better understand the concept and offers some practical suggestions for how it can do so. Next, it presents original data from nationally representative surveys conducted in five countries (the United States, Japan, China, South Korea, and Taiwan) and analyzes respondents’ responses to whether they feel represented by the constitution. The main finding from this exercise is that respondents who are older, male, higher-educated and have high incomes feel more represented than younger, female, lower-educated, and low-income respondents. In essence, groups that are relatively well off in society believe that their values and interests are better represented by the constitution than those who are less well off. While it does not directly tell us what the constitution’s identity is, these data do tell us something about the nature of the relationship between the constitution and those governed by it. Notably, they are consistent with accounts that suggest that constitutions reflect elite interests.

Discussions around Indian constitutional identity often focus upon the Constitution’s “basic structure”, as articulated by the judgment of the Indian Supreme Court by Kesavananda Bharati. In this essay, I attempt to interrogate – and expand – that discussion. Following upon the work of Professor Gary Jacobsohn, I argue that identity, as articulated through the basic structure, is best understood as dynamic and contested, rather than concrete and unchanging. I also argue that the basic structure does not tell the complete story of Indian constitutional identity. That story needs us to understand the Indian Constitution through the lens of power, and how the Constitution organises power relations. A study of constitutional identity through the lens of power reveals – broadly – a “centralising drift” that is present both in the constitutional text and in judgments interpreting the text. While the “centralising drift” might be a dominant feature of Indian constitutional identity at the present moment, it is also important to remember that, as in its more substantive avatar, this version of constitutional identity, too, is contested, revisable, and always open to transformation.