Jacobsohn, Gary J. --- "The Formation of Constitutional Identities" [2011] ELECD 368; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 8

Section Title: The Formation of Constitutional Identities

Author(s): Jacobsohn, Gary J.

Number of pages: 14

Extract:

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 activ-
ities 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 constitu-
tionally 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 ...