Defining the Borders of the Political Community: Constitutional Visions of the Nation

Abstract

The nature of the political community is mainly an unexplained presupposition in constitutional reasoning. Some constitutions allow for different visions and the constitutional or supreme courts have to choose; other constitutions suggest very specific ones, but even in these cases, interpretation can change one vision into another one. Before we go into detail about the constitutional consequences of the different visions, we should, however, clarify the general political and social nature of this debate so we can see the actual stakes at issue. This is especially necessary as lawyers often tend to refer in their reasoning to social facts as obvious truths (or just presuppose them without mentioning them explicitly) even if these are based on outdated sociological, psychological or historical knowledge. As is often the case in legal scholarship, issues also become the most interesting here when the expertise of lawyers ends. When we talk about the borders of the political community, an additional problem appears: the emotional-political or ideological preferences play an even bigger role than usual, to which general phenomenon the motto of this paper also refers (lawyers like to sell these ideological preferences as purely legal-conceptual questions to conceal their actual influence on their constitutional reasoning). These constitutional issues are often partially decided by judges in courts or by legally minded politicians in parliaments or ministries. This article attempts to be a guide for them and for those outsiders who try to understand (or criticise) them. As it is impossible to talk meaningfully about the constitutional concept of the nation without some historical, sociological and political science knowledge, in the first part of the article we are going to see how the nation as a political and social phenomenon evolved. Those who are familiar with these issues can skip the first part and begin directly with the second part, where we are going to analyse the constitutional visions of the (often just implied) borders of the political community. After discussing borderline cases and secession from this perspective, the article closes by looking at the possible future scenarios faced by the European Union as to the constitutional vision of its national nature.

Keywords: nationalism, ethnicity, constitutionalism, Belgium, Switzerland, civic nation, Verfassungspatriotismus