Constitutional identity vs fundamental rights: a false tension?

Abstract The concept of constitutional identity has recently been invoked to impose limits on fundamental rights. In this article, I explore the relation between constitutional identity and fundamental rights and argue that constitutional identity – when properly understood – does not stand in tension but rather presupposes respect for fundamental rights. In the first part of the article, I develop a conception of constitutional identity as a set of normative commitments of a community that reflects its shared experience of establishing, and being subject to, a constitutional form of authority. In the second part, I argue that, while different constitutional identities can be idiosyncratic, they must incorporate respect for fundamental rights if their claim to reflect such common experience is to be credible. The upshot of the argument is that fundamental rights should not be understood as external constraints that limit the scope of constitutional identity, but as internal requirements inherent to the concept of constitutional identity. Although this understanding does not eliminate the difficulties which arise from different interpretations of fundamental rights, it does allow for a more productive engagement with constitutional identity claims, and for analysing them in light of fundamental rights standards they must already accept.