Populism and the politics of constitutional (mis-)identity

Abstract This article examines the increasing entanglement of anti-constitutionalist populism with constitutional identity. Populists have instrumentalized the concept of “constitutional identity” to legitimize changes to the constitution. While this may lead some to consider abandoning the concept, this article suggests a better response, which involves disentangling the descriptive claim of constitutional identity from its normative claims of immutability. Employing a framework of mis-identity and dis-identity claims as two lines of argument against a presumed “existing constitutional identity,” the article clarifies populist rhetoric as a mis-identity claim that relies on the politics of nostalgia to rewrite founding myths about the nation and its people. Lastly, the article argues that we can better respond to populist instrumentalization by limiting constitutional identity’s normative appeal and situating it squarely within constitutional politics.