Constitutional identity, unconstitutional amendments and the idea of constituent power: The development of the doctrine of constitutional identity in German constitutional law

Abstract

The article examines how the concept of constitutional identity has evolved in German constitutional history since 1871, the year of entry into force of the first Germany-wide constitution. This article outlines the theoretical ideas and historical constellations framing the evolution of the notion of constitutional identity, and helps demystify the legal concept. It shows that during the period governed by the Constitution of the German Reich of 1871, the concept of constitutional identity was, in principle, unknown. It was only during the period of the Weimar Constitution, that the notion of constitutional identity was introduced. In 1928, the notion was used by the anti-democratic constitutional lawyers, Carl Schmitt and Carl Bilfinger, within their different theories of justifying the implicit (constitutional) limits on amendments to the Weimar Constitution. In the course of the drafting of the German Basic Law, there was no reference to the notion of constitutional identity. It was only after the German Basic Law had come into force that the notion (re-)emerged. It was used in some aspects of the legal doctrine in order to interpret article 79(3) of the German Basic Law in the light of the ideas of Carl Schmitt. More recently, it was adopted by the German Constitutional Court in order to justify constitutional limits on European integration. The article ends with an assessment of the development of the German concept of constitutional identity. For this purpose, the German doctrine is contrasted with French constitutional law.