Germany

German law makers are the first who had thought of implied limitations on the amending power and included it in their constitution. With the core constitutional provisions seen as the identity of the constitution, it forms Article 79(3) of the German Basic Law (GG), which is known to be the “eternity clause” that declares some provisions of the German constitution as unamendable. The notion of constitutional identity is more or less as a synonym for the “basic structure doctrine” applied in other jurisdictions (such as India).

German Basic Law.jpg
Article 79 of the Basic Law

[Amendment of the Basic Law] 

(1) This Basic Law may be amended only by a law expressly amending or supplementing its text. In the case of an inter-national treaty regarding a peace settlement, the preparation of a peace settlement or the phasing out of an occupation regime or designed to promote the defence of the Federal Republic, it shall be sufficient, for the purpose of making clear that the provisions of this Basic Law do not preclude the conclusion and entry into force of the treaty, to add language to the Basic Law that merely makes this clarification. 

(2) Any such law shall be carried by two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat. 

(3) Amendments to this Basic Law affecting the division of the Federation into Länder, their participation in principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.  

Origin and History of the Doctrine
 

The first substantive limit on any constitutional amendment can be traced back to the 1871 Constitution. Some constitutional lawyers, particularly Georg Meyer, argue that the Constitution implicitly disallow fundamental amendments to be made to the federal principle (i.e. the establishment of a central state).[1]The rationale behind helped the development of the doctrine of constitutional identity, as it distinguishes between fundamental and non-fundamental constitutional provision.

 

The notion of constitutional identity was first introduced byanti-democratic constitutional lawyers, Carl Bilfinger and Carl Schmittin 1928.[2]They both “developed the thesis that a constitution containscore provisions that cannot be amended by the constituted powers through the “ordinary”amendment procedure”.[3]“Such material limits are not derived from the constitutionitself, but from (doubtful) theoretical assumptions underpinning a general theoryof constitutions, namely, the idea of constitution as a harmonious legal order and the fundamental decision of an absolute and non-regulable figure of constituent power”.[4]

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[1]Monika Polzin, “Constitutional identity, unconstitutional amendments and the idea of constituent power: The development of the doctrine of constitutional identity in German constitutional law” (2016) 14(2) International Journal of Constitutional Law 411–438, 415. Available at https://academic.oup.com/icon/article/14/2/411/2526810

[2]Ibid.

[3]Ibid,421.

[4]Ibid.

 
Situations the Doctrine has been used so far

During the drafting of the GG, no reference was made to the notion of constitutional identity, but explicit material limits on constitutional amendments were introduced. It was only after the GG came into force that the notion of constitutional identity (re)emerged in the jurisprudence of the Federal Constitutional Court (FCC),[1]and has become particularly important for constructing constitutional limits on the European integration.[2]

 

  • Solange I 

It was the first time the FCC used the phrase “identity of the constitution”.[3]“At that time, it was not absolutely clear, whether the concept of constitutional identity was linked to article 79(3) GG and an absolute limit on the transfer of sovereignty rights, or whether it was a new independent legal concept, meaningful only within article 24(1) GG, with the consequence that it was only a relative legal concept”.[4]

 

  • Solange II 

“The judgement seemed to follow the minority opinion in Solange I by reducing constitutional identity to the foundational principles from which the fundamental rights in the Constitution were deduced, instead of equating identity with the rights as such.”[5]

 

  • Maastricht

“Although this judgement did not use the term “constitutional identity”, it is clear that the concept underlies the judgement as far as the Court emphasized the need for democracy to be protected as one of the Constitution’s essential features”.[6]It also “accorded article 79(3) GG the function of ensuring the preservation of the Constitution”.[7]

 

  • Lisbon

The Court “made the connection between constitutional identity, article 79(3) GG and the distinction between constituent power and constituted powers derived from the democratic principle”.[8]

 

  • Outright Monetary Transactions

“The Court underscored that the concept of constitutional identity is an inherent and absolute concept of the German constitution”.[9]

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[1]Tímea Drinóczi, “The identity of the constitution and constitutional identity: Opening up a discourse between the Global South and Global North” (2018) 21 Iuris Dictio 63-80, 66. Available at: https://www.usfq.edu.ec/publicaciones/iurisDictio/archivo_de_contenidos/Documents/IurisDictio_21/iu21_05.pdf

[2]Monika Polzin, “Constitutional identity, unconstitutional amendments and the idea of constituent power: The development of the doctrine of constitutional identity in German constitutional law” (2016) 14(2) International Journal of Constitutional Law 411–438, 415, 413. Available at https://academic.oup.com/icon/article/14/2/411/2526810.

[3]Ibid, 426.

[4]Ibid, 427.

[5]Gerhard van der Schyff, “EU Member State Constitutional Identity: A Comparison of Germany and the Netherlands as Polar Opposites” (2016) 76(1) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 167-192, 170. Available at: https://www.zaoerv.de/76_2016/76_2016_1_a_167_192.pdf

[6]Ibid, 173.

[7]Monika Polzin (n2), 429.

[8]Ibid.

[9]Ibid, 430.

Scholarly Evaluation of the Doctrine’s Working and Usefulness
 
  • Tímea Drinóczi

The limited amount of cases on “unconstitutional constitutional amendment” issues is viewed as “a result of the fact that “eternity clauses” have achieved the policy, and they have been underpinned by the written and unwritten rules of the political culture (the requirements for an increased majority for constitutional amendments, co-operation, and checks and balances within the coalition).”[1]“Eternity clauses today are viewed as a legal lifebelt: they form the basis of German political culture and have broad popular and political support; their dismantlement would be intolerable and unsupportable for the majority of citizens”.[2]

 

  • Bosko Tripkovic

He views constitutional identity as a complex concept: “one the one hand, it is rooted in local constitutional commitments and, on the other, it presupposes more general constitutional ideals that are detached from the specificities of the concrete constitutional setting”.[3]In his opinion, “the content of constitutional identity is fluid and imprecise”.[4]“It does give more substance to ethical concepts from the constitution, but often this is only a tendency that gives additional weight to certain interpretations. For this reason, the argument from constitutional identity needs to find add­itional support in other types of ethical arguments.”[5]

 

  • Monika Polzin

She argues that “constitutional identity exists only as a constructed reality and should not be treated as something sacred or absolute”.[6]In her view, constitutional identity “exists only as a constructed, simplified, imagined reality that will most likely also be contested and subject to change”.[7]“The construction of a certain constitutional identity is always a simplified, subjective approximation and can only be an ephemeral snapshot in the endless process of finding out who we are in relation to our constitution. It is subject to change and will also often be contested.”[8]“Constitutional identity can therefore only be compared to an intangible restless soul of a nation. In addition, the concept of constitutional identity itself is inherently fragile.”[9]“There is always a risk that a constructed constitutional identity does not represent the overall picture, but only a subjective view”.[10]

 

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[1]Tímea Drinóczi, “The identity of the constitution and constitutional identity: Opening up a discourse between the Global South and Global North” (2018) 21 Iuris Dictio 63-80, 66. Available at: https://www.usfq.edu.ec/publicaciones/iurisDictio/archivo_de_contenidos/Documents/IurisDictio_21/iu21_05.pdf

[2]Ibid.

[3]Bosko Tripkovic, “The Metaethics of Constitutional Adjudication” (2018, Oxford Scholarship Online) 13-58, 46. Available at: https://www.oxfordscholarship.com/view/10.1093/oso/9780198808084.001.0001/oso-9780198808084-chapter-2

[4]Ibid, 57.

[5]Ibid.

[6]Monika Polzin, “Constitutional Identity as a Constructed Reality and a Restless Soul” (2017) 18(7) German Law Journal 1595-1616, 1615. Available at https://doi.org/10.1017/S2071832200022458

[7]Ibid, 1595.

[8]Ibid, 1615.

[9]Ibid.

[10]Ibid.

 
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