How Identities Are Fluid in an Area With No Longstanding Political Sovereignty Powerful Enough to Force Identity and Allegiance
At present there are 193 member states in the United Nations. The entire globe is thereby divided up into separate states except for the oceans and Antarctica.
Identity has fundamentally altered the tempo of constitutional politics in the EU. Despite hopes that it could serve as a tool of fidelity and principled compromise, the foregrounding of identity in constitutional discourse and its hardening into doctrine have often led to the escalation of long-simmering constitutional conflicts. Actors, especially judicial actors, that had been previously open to compromise, have become significantly more radicalized in the new constitutional landscape. Identity has colonized the self-understanding of the national constitutional orders and recast their relationship to supranational institutions on a basis that is more structural rather than dialogical (what is the most inclusive or principled manner of making such decisions?). Identity has also spread like fire across the legal orders of the EU member states. From its original locus in Germany, it has migrated to Spain, the United Kingdom, the Czech Republic, Italy, Poland, and many other jurisdictions in between. Identity has arguably become the most successful legal transplant in the early twenty-first century.
Whether these structures are part of the identity of the domestic constitution, in the sense that they individuate the constitution and mark it out from others, is not relevant under Article 4(2) TEU. Nor should it be, given that national identity has an independent moral claim to respect from the Union (Barber, 328). Conversely, norms belonging to a State’s constitutional identity which do not incorporate an aspect of national identity do not fall within the scope of Article 4(2) TEU.
In terms of a synthesis of results, a first crucial step is the production of a coherent set of country synthesis that will integrate the discoveries made across the project.
US Supreme Court, New York v. United States 505 US 144, 156–7 (1992)
US Supreme Court, McCulloch v. Maryland 17 US 316, 410 (1819)
Barber, ‘Legal Pluralism and the European Union,’ 328.