The Abuse of Constitutional Identity in the European Union

The concept of constitutional identity has been a key aspect of the EU's negotiation with national constitutional orders. However, with the rise of illiberal democracies, it has come under scrutiny for being embedded in authoritarian rhetoric and vulnerable to abuse. In his book, Julian Scholtes examines how European authoritarians have exploited the concept of constitutional identity to further their illiberal goals, exploring its generative, substantive, and relational dimensions.

Format: Hardback
Length: 240 pages
Publication date: 01 September 2023
Publisher: Oxford University Press

The notion of constitutional identity has played a pivotal role in the negotiation of authority between the European Union (EU) and national constitutional orders. Numerous national constitutional courts have asserted that the scope of EU law is constrained by certain fundamental aspects of the national constitution, often referred to as constitutional identity. However, with the emergence of illiberal democracies within the EU, the concept of constitutional identity has faced increasing scrutiny, being perceived as readily susceptible to being manipulated by authoritarian and nativist rhetoric and vulnerable to abuse. In his book, "The Abuse of Constitutional Identity in the European Union," Julian Scholtes offers fresh insights into how European authoritarians have exploited the concept of constitutional identity to advance their illiberal objectives. Scholtes adopts a comparative theoretical approach, identifying the factors underlying legitimate constitutional identity claims and critically examining the ways in which these claims can be misused. The book explores abuses of constitutional identity across three distinct theoretical dimensions: generative, substantive, and relational. The generative dimension delves into the origins of constitutional identity claims, while the substantive dimension examines the broader relationship of a claim to a normative theory of constitutionalism. The relational dimension, on the other hand, considers how constitutional identity claims are advanced and whether they are employed as a tool for constitutional dialogue or constitutional disengagement.

The concept of constitutional identity has been a subject of significant debate within the EU. On the one hand, proponents argue that it is essential for maintaining a democratic and accountable system of governance. They argue that constitutional identity helps to ensure that national governments respect the rights and freedoms of their citizens and that the EU operates within the bounds of a democratic constitution. On the other hand, critics argue that constitutional identity can be used to justify authoritarianism and undermine democratic values. They argue that the concept of constitutional identity can be manipulated by governments to limit the power of the EU and to undermine the democratic legitimacy of its decisions.

One of the key challenges facing the EU is the rise of illiberal democracies. These democracies may claim to be constitutional, but they often lack the democratic institutions and values that are essential to a healthy democracy. Illiberal democracies may use the concept of constitutional identity to justify their authoritarianism and to undermine the democratic legitimacy of the EU. For example, some authoritarian governments may use the concept of constitutional identity to limit the power of the EU and to undermine the independence of the judiciary. They may also use the concept of constitutional identity to justify their interference in the media and to suppress political opposition.

Another challenge facing the EU is the increasing influence of nationalist and populist movements. These movements often argue that the EU is a threat to national sovereignty and that it should be dismantled. They may use the concept of constitutional identity to justify their opposition to the EU and to undermine the democratic legitimacy of its decisions. For example, some nationalist and populist movements may argue that the EU is undemocratic and that it is dominated by a cosmopolitan elite that is out of touch with the concerns of ordinary citizens.

In response to these challenges, the EU has taken steps
steps to promote the concept of constitutional identity. The EU has established a network of constitutional courts that are responsible for ensuring that the EU's laws and policies are consistent with the EU's constitution. The EU has also developed a set of principles and values that are intended to guide the work of the EU's institutions and to promote the concept of constitutional identity. These principles and values include the principle of subsidiarity, the principle of proportionality, the principle of legality, and the principle of accountability.

However, despite these efforts, the concept of constitutional identity remains a subject of debate within the EU. Some critics argue that the EU's approach to constitutional identity is too narrow and that it does not adequately address the challenges posed by illiberal democracies and nationalist and populist movements. They argue that the EU's approach to constitutional identity is too focused on the formalistic interpretation of the EU's constitution and that it does not adequately address the broader social and political context in which the EU operates.

In conclusion, the notion of constitutional identity has played a pivotal
pivotal role in the negotiation of authority
negotiation of authority between the European Union (EU) and national constitutional orders. While some national constitutional courts have asserted that the reach of EU law is limited by certain core elements of the national constitution, often referred to as constitutional identity, the concept of constitutional identity has faced increasing scrutiny, being perceived as readily susceptible to being manipulated by authoritarian and nativist rhetoric and vulnerable to abuse. In his book, "The Abuse of Constitutional Identity in the European Union," Julian Scholtes offers fresh insights into how European authoritarians have exploited the concept of constitutional identity to advance their illiberal objectives. Scholtes adopts a comparative theoretical approach, identifying the factors underlying legitimate constitutional identity claims and critically examining the ways in which these claims can be misused. The book explores abuses of constitutional identity across three distinct theoretical dimensions: generative, substantive, and relational. The generative dimension delves into the origins of constitutional identity claims, while the substantive dimension examines the broader relationship of a claim to a normative theory of constitutionalism. The relational dimension, on the other hand, considers how constitutional identity claims are advanced and whether they are employed as a tool for constitutional dialogue or constitutional disengagement.

The concept of constitutional identity has been a subject of significant debate within the EU. On the one hand, proponents argue that it is essential for maintaining a democratic and accountable system of governance. They argue that constitutional identity helps to ensure that national governments.

Weight: 488g
Dimension: 164 x 242 x 19 (mm)
ISBN-13: 9780198883173