THE GHOST HAUNTING DECISIONS OF EUROPEAN CONSTITUTIONAL COURTS": WHAT TO DO WITH CONSTITUTIONAL IDENTITY?
Constitutional identity has grown to be a very popular concept among European constitutional courts in the last decade. National constitutional courts use it against an, what they see as, unsuitable intrusion of international law into their national legal orders, be it against EU law or be it against the European Convention on Human Rights as interpreted by the European Court of Human Rights. A more thorough analysis shows that the notion of constitutional identity sometimes raises very basic questions often linked to constitutional identity clauses and sometimes just creates a non-transparent veil hiding the true reason of the respective decision. The analysis also shows that constitutional identity as a legal argument is redundant: Constitutions can cope with the problem of unsuitable intrusion of international law into the national legal order without resorting to some foggy constitutional identity. The European Court of Justice and the European Court of Human Rights are confronted with the opposite problem: how much homogeneity, how much integration may they impose on their respective member states: This has little in common with constitutional identity as used by national constitutional courts. The reasoning of national constitutional courts with constitutional identity is doubtful for other reasons as well. The reference to "identity" - and consequently to constitutional identity - lures the addressee into the belief that this is a scientific and therefore irrefutable concept which implies the impossibility of change for a given social actor. Psychological and sociological theories of individual and collective identity, on the contrary, treat identity as the flexible and changeable result of interactions in which the self-perception of a social actor - be it an individual or a collective one - and the expectations of other social actors towards him/her are balanced into "his/her identity" In any interaction identity will be agreed upon anew. Consequently, there are many and good reasons - for constitutional courts as well as for constitutional scholars - to refrain from the use of "constitutional identity" as a legal/constitutional concept.