Beyond constitutional identity: Thinking identity in constitutional law

Abstract This paper explores the role of identity in constitutional law, moving beyond the dominant concept of constitutional identity. While many European constitutional texts reference various forms of identity – such as national, religious, or cultural – constitutional identity has been disproportionately emphasised in academic discourse. Through an empirical analysis of constitutional provisions and court rulings across 47 European states, this study demonstrates that identity plays a broader and more nuanced role in constitutional law than previously recognised. The paper categorises four types of relationships between identity and constitutional norms: identity as a right to protection, a basis for additional rights, a principle guiding constitutional interpretation, and an identity of the constitution itself. It highlights how constitutional courts interpret and balance competing identities, influencing the application of fundamental rights and constitutional principles. By highlighting examples that represent different models of identity systems, the paper reveals the necessity of giving scientific attention to the relationships between identities. Indeed, identities can undermine liberal constitutional values by privileging certain collective identities over individual identities and individual rights. Ultimately, the study argues that focusing solely on constitutional identity as an analytical concept to designate everything even remotely related to identity in constitutional law obscures the broader dynamics of identity within constitutional systems. It calls for a strict conceptual redefinition of constitutional identity in order to better understand how identity, in all its potential forms, continuously reshapes constitutional law and influences the evolution of democratic and human rights protections in European states.