The Problem of 'Identity' in Constitution-Making and Constitutional Reform

Abstract

Constitution-making and constitutional reform, as recent examples in the European Union and Iraq indicate, cannot succeed unless there is an existing constitutional identity or one in the making. Constitutional identity differs from national identity, but must perforce incorporate aspects of pre-constitutional and extra-constitutional identity. The paper distinguishes between five constitutional models and four constitution-making models and argues that every viable constitutional identity is shaped by some of these or by combinations involving aspects of several of these. Consistent with this, the relevant differences between constitution-making, amending the constitution, revising the constitution, and constitutional reform are substantive and contextual rather than formal, and involve greater or lesser changes to constitutional identity.

Keywords: constitution, identity, subjectivity