Julian Scholtes is a Lecturer in EU and Public Law at the University of Glasgow. He is interested in Constitutional Law, Constitutional Theory, and Human Rights Law and is researching the abuse of national constitutional identity arguments in the European Union.
The invocation of ‘national constitutional identity’ has become a key argument in the negotiation of authority between national legal orders and the legal order of the European Union. Many national constitutional courts have declared that the reach of EU law is limited by certain core elements of the national constitution, often labelled ‘constitutional identity’. However, the emergence of ‘illiberal democracies’ in the EU has put constitutional identity into a questionable spotlight. Both Hungary and Poland have leaned on constitutional identity to both erode European legality and defend their authoritarian constitutional projects against European criticism. This lecture will deal with the question of how to delimit legitimate invocations of constitutional identity from abuses of constitutional identity. It develops a typology of constitutional identity abuse in three dimensions: Generative, substantive, and relational. The generative dimension is concerned with how a constitutional identity claim has come about, its relation to constituent power and constitutional change, judicial independence, and the regulation of historical memory. The substantive dimension deals with what a constitutional identity claim entails, digging into the normative expectations invoked by the concept. Finally, the relational dimension is concerned with how a constitutional identity claim is advanced.