This week we will continue our debates about constitutional identity. Hopefully, the assigned reading by Jacobsohn (pp. 84–117) will be a welcome departure from the Hegelian dialectic of our last meeting.

Subjective or objective identity?

• Jacobsohn builds upon philosophical debates whether personal identity is something predetermined by nature and circumstances or rather a result of volitional acts (“I am what I myself choose to be” – see in particular Appiah’s authenticity and existential approach on pp. 91–92). When it comes to constitutional identity, does he pick any side?  
• Does every constitution have an identity of its own that can be known “[b]y its beginning (‘origins’), its middle (‘concepts’), and its end (‘aspirations’), understood within the unity of a narrative (‘viewed in context . . . historically’)” (p. 91)?
• Should there be „a presumption in favour of any settled scheme of Government against any untried project“, as Burke argues? (p. 99).

Building constitutional identity

• What purpose do aspirational content, dialogical articulation and generic/local balancing serve in Jacobsohn’s argument?
• Do you agree with the statement that „[c]onstitutions provide structures to mediate among conflicting political aspirations, but that they must or can be neutral with respect to them does not necessarily follow.“ (p. 106)?
• Jacobsohn claims that „[i]n practice the dialogical enterprise comprises interpretive and political activity occurring in courts, legislatures, and other public and private domains“ (p. 108), but he is critical of „judicial unilateralism“ in this area (p. 110). Why?
• Are constitutions always build upon reconciliation of the requirements of “generic constitutionalism” and “local traditions and practices” (p. 113)?

EU Constitution

• According to Jacobsohn, Grimm argues that the EU is not ready for a constitution because its citizens lack a collective identity. The issue „is not the lack of cohesion of Union citizens as a people, but their weakly developed collective identity and low capacity for transnational discourse“ (p. 114). On the other hand, Habermas believes that „an abstract, legally mediated solidarity among strangers” together with transnational public sphere and democratic discourse will suffice. Whose view do you find more convincing?

Missing pieces (?)

• Jacobsohn makes several mentions of national identity, especially in the introduction (pp. 85–86). Does he explain its relationship to the notion of constitutional identity?
• What is the role, if any, of the so-called eternity clauses, e.g. the Art. 9(2) of the Czech Constitution, in the shaping of a constitutional identity? 

Looking forward to our discussion! 

Vojta

Assigned reading: