Constitutional identity as the constituent power embodiment

The article clarifies the essence of the constitutional identity concept, as well as its connection with the constituent power. There are two main approaches to understanding constitutional identity: broad and narrow. In the first case, it is about the permanence of certain principles, institutions and traditions, embodied at the normative and law enforcement (judicial) levels, in legal customs and practice of implementing the constitution. The second case concerns the existence of the constitution unchanged provisions, combined with judicial review of amendments to the constitution, as well as constitutional review of provisions of the EU law. Many constitutions protect their identity by establishing unchanging constitutional provisions or making it much more difficult to amend certain principled positions. It is obvious that these rules are designed to protect the constitution from the established (constituted power, pouvoir constitué) power. Instead, it is the constituent power (pouvoir constituant) that is intended to create or change such an identity of the constitution. With a narrow approach, it can sometimes also be a question of constitutional judicial review of the EU's law. It is concluded that the concept of constitutional identity, aimed at protecting the basic constitutional values of states, can become a cornerstone of the relationship between member states and the EU, especially in case of populist forces coming to power. More and more critics of the concept of constitutional identity have emerged recently, but it has been argued that there is no alternative to constitutional identity. The formulas of "eternity" clause will continue to exist in the constitutions as the embodiment of the constituent power of the people who adopted the constitution and the EU must take this into account. The abuse of this concept is rather a natural consequence of the rule of populist parties and governments, but not a reason to abandon the constitutional identity completely. The key research method in the article is comparative law. The formal-logical method (for formulating approaches to constitutional identity), the historical-legal method (for elucidating the evolution of the concept of constitutional identity), and the system method (for elucidating the connection between constitutional identity and the concept of constituent power) were also used.

constitutional identity, constituent power, populism, "eternity clause", the European Union