Edited by Tom Ginsburg and Rosalind Dixon
Chapter 8: The Formation of Constitutional Identities
Gary J. Jacobsohn 1 THE CONCEPT OF CONSTITUTIONAL IDENTITY Constitutional theorists have had relatively little to say about the identity of what they study. There are, however, attributes of a constitution that allow us to identify it as such, and there is a dialogical process of identity formation that enables us to determine the speciﬁc identity of any given constitution. Representing a mix of aspirations and commitments expressive of a nation’s past, constitutional identity also evolves in ongoing political and interpretive activities occurring in courts, legislatures, and other public and private domains. Understandably, some constitutional theorists have been skeptical that identity can be anything more than a tendentiously applied label used to advance a politically and constitutionally desirable result. Laurence Tribe’s (1983: 440) view is doubtless reflective of a not uncommon attitude: ‘[T]he very identity of “the Constitution” – the body of textual and historical materials from which [fundamental constitutional] norms are to be extracted and by which their application is to be guided – is … a matter that cannot be objectively deduced or passively discerned in a viewpoint-free way’. Much as a term like ‘identity theft’ may have relevance to credit cards and other aspects of our digitally filled lives, the concept’s bearing on matters of constitutional salience is arguably obscure. Yet, if the philosopher Joseph Raz (1998: 152) is correct in maintaining that constitutional theories ‘are [only] valid, if at all, against the background of the political and constitutional arrangements of one country or another’, then pursuing the...
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