Constitutional Identity and Illiberalism

Are there contextual conditions that doom a people to live under authoritarianism? This article compares two different constitutional systems, Hungary and Brazil, with a view to identifying the main reasons for the endurance of the Fidesz political project (for 12 years) and the failures, so far, of “Bolsonarism“ in Brazil. In the context of the concepts of constitutional identity and the identity of the constitution, we discuss institutional factors together with cultural perceptions of the values of constitutional democracy. We argue that different constitutional identities can propel different environments for the survival and persistence of authoritarian and illiberal projects, with Hungary offering better conditions for them and Brazil presenting hurdles for their endurance. We conclude that democratic values should be linked to particular institutional characteristics that avoid the permanence of new authoritarian and illiberal political projects.

The identity of the constitutional subject has unique ties with constitutional identity. The existence of a “common African identity“ has been used to imagine a continental constitutional system based on the values of human rights, democracy, and the rule of law. Although the identity of the constitutional subject helps to imagine a cosmopolitan constitutional identity at the continental level, it influences constitutional identity at the national level differently. In Ethiopia, its Constitution starts with “We the Nations, Nationalities, and Peoples“ rather than “We the People“ - in Nigeria, a constitutional theocracy co-exists with constitutional democracy - in Kenya, courts have used constitutional history as a foundation of their basic structure doctrine. Through these case studies, I will show how the identity of the constitutional subject helps to construct a constitutional identity and how this, in turn, impacts constitutional practice differently.

What is constitutional identity and how is it distinguishable from other identities? This question has become important as populism spreads across jurisdictions, especially those built upon identity politics, raising the specter of authoritarianism with effects on minorities and individual rights. Constitutional identity, in anchoring itself within the constitutional text, can sometimes be seen as an important rational counterpart to other sources of identity. However, it is not always clear if constitutional identity is a normative liberal democratic concept, or simply a descriptive or explanatory one. Furthermore, is it important to consider the relationship between constitutional identity and other identities, specifically whether they must be overlapping or at least not inconsistent. This paper will explore some of these questions and identify ways in which constitutional identity could be employed for illiberal or exclusionary aims.

The concept of constitutional identity has recently seen a particular diffusion from liberal into illiberal uses. Where liberal uses of constitutional identity point to the particular ways in which a polity has enabled itself to exist under conditions of constitutionalism, illiberal uses of constitutional identity seize upon the concept as a means of political closure and a way of pre-empting political processes. This paper will trace this conceptual diffusion through comparative and theoretical analysis, looking at the German and Hungarian cases first and foremost, with a particular focus on Hungarian claims of defending 'social homogeneity' as a matter of constitutional identity first raised in the context of the Syrian refugee crisis.

Constitutional identity emerged in the EU as a distinctive claim of post-WW II constitutionalism. Within this frame, CI originally consisted of distinctive claims of post-WW II State-centred liberal constitutionalism, including the protection of the rule of law, fundamental rights and the separation of powers. In the last decades, CI has been prone to a process of abuse and manipulation, with the well-known departure from its liberal constitutional origins. The emergence of “unconstitutional constitutional identities“ led the Court of Justice to identify an autonomous concept of constitutional identity of the EU, which may set ultimate boundaries to the illiberal manipulation of the concept of national constitutional identities. The paper will illuminate this process from the perspective of the theoretical models of militant democracy: is the emergence of an autonomous concept of constitutional identity of the EU affirming a militant conception of constitutional identity?

Discussant.