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How Identities Are Fluid in an Area With No Longstanding Political Sovereignty Powerful Enough to Force Identity and Allegiance

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The modern state is based on the principle of sovereignty and the sovereign state system. Sovereignty is the political form in which a single, central “sovereign” or supreme lawmaking authority governs within a clearly demarcated territory. The sovereign state system is the structure by which the world is divided up into separate and indivisible sovereign territories. 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.

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While identity federalism remains at an early, exploratory stage in American constitutionalism, the European experience has been sufficiently robust to allow an initial assessment, at least in its original context. 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.

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So far, this article has attempted to demonstrate that there is particular value in respecting national identity in a multinational polity such as the EU and that the identity clause of Article 4(2) TEU finds, therefore, at least part of its justification in moral principle. It is the moral concerns underlying the identity clause, rather than the intentions of its authors, that should guide the ECJ’s reasoning in cases where the meaning of the identity clause is uncertain (McCulloch v. Maryland). What particular implications such a ‘moral reading’ of the identity clause may have, has been explored in detail elsewhere

For present purposes, suffice it to recall one of the main conclusions of that study: the identity clause protects the features that make a national community what it is (e.g., its history, language, values, traditions), and without which the community would no longer be the same, in so far as those features are mirrored in fundamental domestic structures, most notably constitutional law. 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.

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Altogether, spiritual flows that are revealed by individual and collective mental maps are then compared to four types of effective flows linking the EU and the rest of the world (Trade, Aid, FDI, migrations) in order to examine possible discrepancies. The most important discovery about functional divisions of the World is that the EU is embedded in a wider functional region including both its eastern and southern neighbourhood. 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.

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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.

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