Constitutional Identity and Where to Find It

The category of constitutional identity is now con dently used in the science of constitutional law and in resolving some disputes, but it remains not completely clear. The article is aimed at identifying the content of this category and the possibility of its application in practice. The article presents the meanings of the term “identity” and checks whether this term can be used in constitutional law, and if so, in what sense. Possible ways of nding the features of constitutional identity in the texts of constitutions (in preambles, among the foundations of the constitutional system, or provisions protected from change) are shown. The nal conclusions concern the limits of the application of constitutional identity in constitutional disputes. It seems that constitutional identity can be used to resolve constitutional con icts only if two conditions are met: xing the features of constitutional identity, de ned precisely as such (1), and carried out previously, not at the time of the decision, but in advance (2). It is these two conditions that will provide the necessary predictability and validity of decisions, in the adoption of which the category of constitutional identity was used for argumentation. Otherwise (if these conditions are not observed for whatever reason), the constitutional review body should, as far as possible, avoid using the category “constitutional identity” as an argument in resolving disputes.