Vol 19 No 2 (2019)
Essays

On multiple identity of constitutions

Riccardo Guastini
Analisi e diritto, 2/2019
Published January 26, 2020
Keywords
  • Constitution,
  • constitutional amendment,
  • constitutional identity (textual),
  • constitutional identity (legal),
  • constitutional identity (political),
  • constitutional identity (axiological)
  • ...More
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Abstract

According to a widespread view that can be traced back to Carl Schmitt’s constitutional theory, constitutional amendments may not alter the “identity” of the constitution – this is so, independently of any positive constitutional pro- vision on the matter, because of the very concepts of constitution and constitu-

tional amendment. Nonetheless, the identity of the constitution is not easy to grasp. To be sure, at least four different “identities” of the constitution can be distinguished: (a) the textual, (b) the legal, (c) the political, and (d) the axiolo- gical one. Legal scholars and constitutional (or supreme) judges look only to the axiological identity of the constitution, that is to a set of “fundamental” or “supreme” principles and/or values. However, not every existing constitution is necessarily provided with principles and values. Moreover, there is no reason to privilege the axiological identity of the constitution, which depends by and large on some arbitrary value-judgements of interpreters, disregarding the others (namely, the political one). From the point of view of legal positivism, constitu- tional amendments do not have other limits than those expressly stated by the constitution itself.