Deciphering the Genome of Constitutionalism: The Foundations and Future of Constitutional Identity (Comparative Constitutional Law and Policy)

Cover
Half-title page
Series page
Title page
Copyright page
Contents
List of Figures
List of Contributors
Preface
Acknowledgments
Introduction: The Quandaries and Parables of Constitutional Identity
	1 The Basic Questions and Challenges
	2 Structure and Contents of the Book
	References
Part I Foundations, Theory, and Concepts
	1 Rousseau’s Sovereignty and the Concept of Constitutional Identity
		1.1 Rousseau’s Theory: Sovereignty, Representation, and the Paradoxes of Founding
		1.2 Constitutional Identity, Constitutive Power, and the Question of Legitimacy
		1.3 Revisiting the Rousseauian Model of Constitutional Identity
		References
	2 Constitutional Identity: Cracking the Genetic Code of the Constitution
		Introduction
		2.1 Significance for Constitutional Theory and the Understanding of Identity
		2.2 German Constitutional Identity and Electoral Gender Quotas
			2.2.1 The Political Movement in Favour of Electoral Gender Quotas
			2.2.2 A Partial Victory: The First Parity Laws
			2.2.3 The Setback: The Decisions of State Constitutional Courts in 2020
			2.2.4 The Movement Battles on
			2.2.5 The Constitutional Conflict and the Meaning of Democracy and Equality
			2.2.6 Content of the Eternity Clause
			2.2.7 Fragility and Fluidity
		2.3 Final Remarks
		References
	3 Constitutional Identity as Discourse: Mis-identity and Dis-identity
		Introduction
		3.1 Constitutional Identity and the Disharmonic Constitution
		3.2 Constitutional Mis-identity and Constitutional Dis-identity
			3.2.1 Constitutional Mis-identity and Dis-identity as Reinforcing Claims
			3.2.2 Constitutional Mis-identity and Dis-identity as Competing Challenges
		Conclusion: Constitutional Identity and Constitutional Change
		References
	4 Constitutional Identity and Constitutional Revolution
		4.1 Constitutional Identity
		4.2 Constitutional Revolution
		4.3 Does This Matter?
		References
	5 The Death of Constituent Power
		Introduction
		5.1 Moral Constraints on Constituent Power
		5.2 Constituent Power and Positive Law
		5.3 Constituent Power As a Useful Metaphor
		5.4 Constituent Power and the Death of God
		References
	6 Constitutional Identity as a Source of Ontological Security
		6.1 Ontological Security Scholarship
		6.2 Constitution Making in Timor-Leste
		6.3 Identity Emerges Dialogically
		6.4 Continuity and Change
		6.5 Disharmony and Contingency
		Conclusion
		References
	7 The Crisis in, and of, Constitutional Identity
		Introduction
		7.1 Identity Entrepreneurship
		References
Part II Comparative Perspectives
	8 Confucian Constitutional Identity
		Introduction
		8.1 Confucian Constitutional Identity
			8.1.1 China
			8.1.2 South Korea
			8.1.3 Singapore
		8.2 Comparative Analysis
			8.2.1 Textual and Prescriptive Constitution
			8.2.2 Bounded Fluidity
			8.2.3 Disharmonic Invitation
			8.2.4 External Disharmonies
		Conclusion
		References
	9 ‘(A-)Religious & Democratic’ Militant Dual Constitutional Identities and the Turn to Illiberalism: The Case of France
		Introduction
		9.1 France’s Contested Formation of a Republican and Liberal-Democratic Constitutional Identity
		9.2 The Fifth Republic and States of Emergency: The Anti-Muslim Colonial Continuum
		9.3 The Practice of Militant Constitutional Identity: Eternity Clauses and Bans on Political Parties and Associations
		Conclusion: (Accidental) Disharmonic Constitutions or (Built-in) Exclusionary Constitutionalism?
		References
		Cases and Legislation
	10 Constitutional Identity in Bangladesh: Complexity and Contestations
		Introduction
		10.1 Bangladesh’s Constitutional Identity
			10.1.1 The Four Identity Principles
				10.1.1.1 Nationalism
				10.1.1.2 Socialism
				10.1.1.3 Democracy
				10.1.1.4 Secularism
			10.1.2 Complexity, Destruction, and Contestation of Constitutional Identities
				10.1.2.1 Democracy, Constitutional Replacement in 1975, and the Path to Authoritarianism
				10.1.2.2 Socialism: The Road Not Taken
				10.1.2.3 Contested Nationalism
				10.1.2.4 Secular v Religious Identity
		Conclusions
		References
	11 Clashing Identities? Traditional Authority and Constitutionalism in Africa
		Introduction
		11.1 Traditional Authorities and African Constitutions
		11.2 What Roles for Traditional Authorities in Post-colonial Constitutions?
		11.3 Traditional Authority and Constitutional Identity in the Post-Colony
		Conclusion
		References
		Case Law
	12 Imposed Revolution? “August Revolution,” “Imposed Constitution,” and the Identity of the Constitution of Japan
		Introduction: Disharmony and Identity
		12.1 August Revolution
			12.1.1 Constitution Making as an Implementation of the Potsdam Declaration
			12.1.2 A Legal Contradiction in Legitimacy of the Constitutional Reform
			12.1.3 Miyazawa’s August Revolution Theory
			12.1.4 Implications of the August Revolution Theory
				12.1.4.1 The Potsdam Declaration as a New Source of Normative Authority
				12.1.4.2 The August Revolution as an Unfinished Revolution
		12.2 Imposed Constitution?
			12.2.1 A Brief Story of the Process of Making the Constitution of Japan
			12.2.2 Imposed Constitution?
			12.2.3 MacArthur’s Authorities to Take Direct Action
			12.2.4 February Coup d’État: MacArthur vs. FEC
			12.2.5 A Legitimately Imposed Constitution
		Conclusion: The Identity of the Constitution of Japan
		References
	13 India: A Constitution in Search of an Identity
		13.1 Identity as a Contested Terrain
		13.2 Understanding Constitutional Identity through the Lens of Power
		13.3 Axes of Power under the Indian Constitution
		13.4 Illustration: State of West Bengal v Union of India
		Conclusion
		References
		Cases and Legislation
Part III American Constitutionalism and Constitutional Identity
	14 “This Is (Not) Who We Are”: Reflections on 1619 and the Search for a Singular Constitutional Identity
		References
	15 Constitutional Aspirationalism Revisited
		Introduction
		15.1 Aspirations and Disharmony
		15.2 That Eminent Tribunal
		15.3 The Theory of Constitutional Aspiration
		15.4 Constitutional Aspirationalism Revisited
		References
	16 The Constitution at War with Itself: Race, Citizenship, and the Forging of American Constitutional Identity
		Introduction
		16.1 Slavery and Constitutional Disharmony
		16.2 The Missouri Crisis and Dialogical Articulation
		16.3 Constructing Constitutional Identity
		16.4 Transforming the Constitution at “War with Itself”
		16.5 The Core of Constitutional Identity
		References
	17 Constitutional Identity, Constitutional Politics, and Constitutional Revolutions
		17.1 Constitutional Politics as Pure Politics
		17.2 Constitutional Politics as Constitutional
		17.3 Constitutional Politics as Constitutional Identity
		17.4 Constitutional Politics as Elaborating a Constitutional Identity
		17.5 Constitutional Politics as Determining a Constitutional Identity
		Conclusion: Entwining Constitutional Politics and Constitutional Identity
		References
	18 American Constitutional Exceptionalism, Constitutional Identity, and Democracy
		Introduction
		18.1 American Comparative Constitutional Scholarship during the Era of Democratic Optimism
		18.2 American Constitutional Exceptionalism during an Era of Democratic Pessimism
		Conclusions
		References
Part IV Emerging Trends
	19 Constitution Making and Disharmonic Identity
		Introduction
		19.1 The “Disharmonic” Constitution
		19.2 The Liberal Constitutional Paradigm in the Context of Religious Divisions and its Limits
		19.3 Debating Constitutional Religious Identity in Israel and Turkey
			19.3.1 Israel
			19.3.2 Turkey
		19.4 Incrementalism and Disharmony in Constitution Making
		Conclusion
		References
		Legislation
	20 Constitutional Identity and Unamendability
		Introduction
		20.1 Identity and Amendability
		20.2 Ireland and Constitutional Unamendability
			20.2.1 The Constraint of Generic Identity
			20.2.2 The Constraint of Particular Constitutional Identity
		20.3 The Normative Justification for Identity-based Constraints on Amendment Powers
		Conclusion
		References
	21 Illiberal Constitutionalism and the Abuse of Constitutional Identity
		21.1 Constitutional Identity and Constitutionalism – a Complex Relationship
			21.1.1 Constitutionalism and Constitutional Identity
		21.2 ‘Illiberal Constitutionalism’ as an Abuse of Constitutional Identity
			21.2.1 Is There Such a Thing as ‘Illiberal Constitutionalism’?
			21.2.2 Illiberal Constitutionalism as Constitutional Identity
				21.2.2.1 Hungary
				21.2.2.2 Poland
		Conclusion
		References
	22 Deconstructing Constitutional Identity in Light of the Turn to Populism
		Introduction
		22.1 Constructing and Deconstructing Constitutional Identity through Negation, Metaphor, and Metonymy
		22.2 Populist Deconstructive Appropriation of the Process of Constitutional Identity Formation
		22.3 Populist Exclusionary Constitutional Identity and the Core Ideals of Modern Constitutionalism
		Conclusion
		References
	23 Unconstitutional Constitutional Identities in The European Union
		23.1 Constitutional Identity: The European Sonderweg of a Universal Concept
		23.2 Constitutional Identity in the EU: Its Political Roots and Legal Transformation
		23.3 Constitutional Identity from Its Use to Its Abuse
		23.4 Abusive Constitutional Borrowing
		Conclusions
		References
	24 What Counts as Constitutional Identity?
		Introduction
		24.1 Empirical Approaches to Understanding Constitutional Identity
			24.1.1 Constitutional Text
			24.1.2 The Relationship between Constitutional Texts and Popular Values
		24.2 Constitutional Representation: An Initial Empirical Exploration
			24.2.1 Which Constitution Is the Most Representative?
			24.2.2 Who Feels Represented?
		Conclusion
		References
		Legislation
	25 Contrariness and Contradiction in Constitutional Law
		Introduction
		25.1 The Futility of Consistency
		25.2 Kinds of Disharmony
			25.2.1 Aristotelian Notions of Inconsistency
		25.3 Illustrations
			25.3.1 Contradiction and the Peculiar Institution
			25.3.2 Further Contradiction: Property Rights and Land Redistribution
			25.3.3 Subalternation, Contrariness, and Contradiction: Non-discrimination and Discrimination
				25.3.3.1 Group Rights versus Individual Rights
				25.3.3.2 Identity Regimes and Equality
			25.3.4 Errors
		Conclusion: Dealing with Disharmony
		References
	26 Conclusion: The Past, Present, and Future of Constitutional Identity
		Introduction
		26.1 Constitutional Identity in and through Time
		26.2 Embracing Difference and Agency in Constitutional Identity
		26.3 The Future of Constitutional Identity
		Conclusion
		References
Index