Constitutional identity and illiberalism: Introduction

Abstract This Symposium explores whether constitutional identity is compatible with illiberal politics and policies. Engaging with cases from South Africa, India, Brazil, Türkiye, and the European Union and its member states, the contributions examine how constitutional identity is mobilized to resist, enable, or institutionalize illiberalism. Building on these insights and engaging with contemporary scholarship, this Introduction develops a theoretical framework structured around three key findings. First, the descriptive (including the descriptive-analytical) and normative conceptions of constitutional identity are inherently in tension, and various political and judicial actors frequently exploit this tension. Second, constitutional identity is a volatile tool—it can be activated by both liberal and illiberal forces, depending on the context. Third, the direction of the activation of constitutional identity depends on three interrelated factors: the nature and independence of the institutional actors involved; the degree to which constitutional identity is conflated with national or religious identity; and its entrenchment through doctrines of unamendability. When institutional actors are few or compromised, identity is more easily captured by illiberal forces. When constitutional and national identity are fused, identity may serve exclusionary or authoritarian ends. When locked into eternity clauses, identity can obstruct both democratic erosion and re-democratization. Taken together, the Symposium contributions support a reorientation of constitutional identity from a presumed essence to a site of political, legal, and cultural struggle—inviting further research at the intersection of law, identity, and constitutional transformation.