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

25 Pages Posted: 16 Dec 2005  

Michel Rosenfeld

Benjamin N. Cardozo School of Law

Date Written: December 14, 2005

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

Suggested Citation

Rosenfeld, Michel, The Problem of 'Identity' in Constitution-Making and Constitutional Reform (December 14, 2005). Cardozo Legal Studies Research Paper No. 143. Available at SSRN: https://ssrn.com/abstract=870437 or http://dx.doi.org/10.2139/ssrn.870437

Michel Rosenfeld (Contact Author)

Benjamin N. Cardozo School of Law ( email )

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New York, NY 10003
United States
212-790-0234 (Phone)
212-790-0205 (Fax)

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