Constitutional Identity as Discourse: Mis-identity and Dis-identity
Forthcoming in Ran Hirschl and Yaniv Roznai (eds.), Deciphering the Genome of Constitutionalism: The Foundations and Future of Constitutional Identity (Cambridge University Press)
12 Pages Posted: 14 Sep 2023
Date Written: September 13, 2023
Abstract
This chapter builds upon Gary Jacobsohn's work conceptualizing constitutional identity as characterized by contestations, rather than consensus. I argue that once we abandon the mythical, imagined creature called ‘We, the People’, we find a society that is far less cohesive, and most times, far less agreed or agreeable about certain fundamental ideas. Within this realistic view of society constitutional disharmonies and contestations make more sense. This chapter drills down on how these constitutional disharmonies and contestations can be understood as competing claims about constitutional identity. I look at the modalities of disharmonies and the narratives that constitutional actors employ in relation to ‘constitutional identity’ and I identify two modes of argumentation that challenge extant claims about constitutional identity: ‘constitutional mis-identity’ and ‘constitutional dis-identity’. To illustrate the dynamism of this contestation over constitutional identity (dis-identity and mis-identity), and the utility of my proposed framework in highlighting these nuances, I use two permutations of contestations around religion in two constitutional settings – Malaysia and the United States. Both these countries, despite having different constitutional provisions on state and religion – Malaysia has a confessional constitution while the United States has a non-establishment constitution – have significantly religious societies with significant religious mobilization over the public role of religion. There are nuanced modalities of disharmony in the context of contestation over religiously-motivated claims about the constitution, and the framework of dis-identity and mis-identity would allow us to better appreciate the different forms of contestations over constitutional identity.
Keywords: constitutional identity, constitutional law, comparative constitutional law, law and religion
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