Balkinization: Constitutional Identity

Constitutional Identity

Sandy Levinson

I want to bring to your attention a quite remarkable book published in 2010 by my University of Texas colleague Gary Jacobsohn, which I recnetly reread in preparation for a mini-symposium held at the University of Texas Law School in its honor. Gary is by any reckoning one of the leading comparative constitutionalists in the United States. He has written important books comparing the United States and Israeli constitutional orders and on the Indian constiutional system. Partly because of his immersion in the Indian materials--where the Supreme Court has indicated its potential willingness to declare unconstitutional proposed amendments tht would fundamentally change the nature of the constitutional order, Gary has written a book-length examination of the mystery of "constitutional identity," i.e., whether we can in fact discern what might be termed the "essence" of a given constitutional system so that we could say, with regard to any given change, that the amendment represented not, say, a perfection of the existing order, but a genuine transformation. This question arises also in Germany, which has an "eternity clause" prohibiting any limitation, even by amendment, of the human dignity guaranteed by the post-War constitution, The concept is not unknown even within American state constituitonalism inasmuch as the California constitution can be amended by initiative and referendum so long as the amendment is not a "revision" of the constitution, in which case it must be propsed by the state legislature.

As one can imagine, the questions raised can be extremely tricky, especially in constitutional orders, like Ireland's, that profess in some way to be rooted in a specific religious tradtion, in that case, of course, Roman Catholicisism (And, of course, Israeli debate is dominated by the question of the whether its identity as a "democratic and a Jewish state" creates a potentially fatal tension.

Perhaps one reason I found the book so rich and consistently interesting is my own interest in amending the United States Constitution. My own view is that its identity is constituted by the Preamble and Republican Form of Government Clause (and, at the end of the day, by very little else, at least with regard to the original 1787 Constitution devoid of any subsequent amendments). Thus I view any potential changes, however institutionally radical they might appear, as attempts to create the "more perfect Union" envisioned by the Preamble. Others, of course, might disagree and believe that, say, a parliamentary system with term-limited judges and the creation of a new Senate that eliminated equal state voting power (assuming, of course, that states were retained), would constitute a "brand-new" Constitution. (And I'm not even including provisions for direct democracy!) In any event, I strongly recommend it as a companion to Jack's Living Originalism, which, for some readers at least, will raise similar questions about the extent to which a "living Constitution" is, at the end of the day (or many decades) really the "same Constitution" that one started out with (at least to the same extent that an adult is "the same person" born many years before.

Posted 8:23 PM by Sandy Levinson [link]