Constitutional Identity: From Illusion to Inclusion?
This article is based on research presented at the UACES Graduate Forum Research Conference 2025 (29-30 May, Panteion University, Athens, Greece). By dr. Maaike Geuens (Assistant Professor Public Management Open Universiteit) and ms. Duygu Sahin (Tilburg University).
Constitutional identity is an increasingly contested notion within the European Union’s legal and political landscape. Codified in Article 4(2) of the Treaty on European Union (TEU), it is intended to protect the “national identities” of Member States. Yet over the past decade, it has also served to justify legal divergence, democratic backsliding, and, in some cases, open resistance to the primacy of EU law. Courts in Germany, Poland and Hungary have relied on the identity clause to challenge the authority of the Court of Justice of the European Union (CJEU), placing constitutional pluralism under strain. These developments raise pressing questions about the legitimate scope and democratic grounding of constitutional identity in the EU.
At the heart of the current debate lies a fundamental ambiguity: what exactly constitutes constitutional identity, and who determines it? Scholarly work has attempted to clarify the legal, historical, and philosophical contours of the concept, often pointing to its multidimensional character. Some view it as a safeguard for democratic self-determination and pluralism within an integrated legal order; others see it as a potential vehicle for nationalistic exceptionalism. The lack of a standardised or uniformly accepted definition has created space for competing interpretations, not all of which are normatively benign.
This tension is exacerbated by a structural democratic disconnect in the EU. While the Union aims to function as a community of values, its constitutional discourse is often perceived as elite-driven and technocratic. Voter turnout in European elections remains uneven, and levels of EU-awareness vary widely between and within Member States. The idea of a European public sphere—necessary for any shared constitutional project—thus remains fragile. In this context, appeals to “identity” risk being used as rhetorical shields rather than as vehicles for inclusive constitutional development.
Against this background, the CONTICI project (Constitutional Identity: Thick Interpretation by Citizens) seeks to reconsider the foundations of constitutional identity by asking a different question: what would it mean to understand constitutional identity not from the perspective of courts or politicians, but from the bottom up—from the people themselves? Drawing inspiration from interpretive legal theory and deliberative democracy, CONTICI aims to develop a methodology that foregrounds the lived, narrative, and symbolic dimensions of constitutional meaning. Rather than seeking to distil a universal definition, the project will explore how citizens across Europe understand, experience, and potentially contest constitutional identity.
The conceptual starting point for this project is that constitutional identity is not merely a legal construct, but also a social and cultural one. It is embedded in historical memory, national narratives, institutional practices, and collective symbols. As such, it cannot be fully captured by doctrinal analysis alone. The project therefore proposes a thick, interpretive approach: one that combines legal analysis with empirical inquiry, informed by the methods of political sociology, discourse analysis, and focus group research. This approach is designed to capture not only what constitutional identity is said to be, but how it is lived, negotiated, and communicated among citizens.
CONTICI’s research design will unfold in several stages. Following an initial doctrinal and comparative analysis of Belgium, the Netherlands, and the EU, the project will launch empirical focus groups in these jurisdictions to trace citizens’ interpretations of constitutional identity. The selection of Belgium and the Netherlands reflects both linguistic diversity and contrasting state structures—unitary versus federal, centralised versus decentralised. This comparative dimension will help reveal whether a bottom-up understanding of identity converges or diverges across different national contexts. A subsequent phase will expand this inquiry to other Member States, with the ultimate goal of informing a more democratic and pluralistic conception of European constitutionalism. In the final stage of the project, the dimension of reflexive leadership of EU institutions is added to the mix.
The potential benefits of this approach are manifold. First, it may enhance the democratic legitimacy of constitutional discourse by involving citizens directly in defining the values and principles that govern them. Second, it may offer empirical grounding to a concept that is too often abstract or strategically deployed. Third, it may contribute to the development of a European constitutional identity that complements, rather than threatens, national identities—a shared identity that reflects common values without erasing diversity.
Nevertheless, the project is also conscious of its limitations. Focus group methodology, while rich in qualitative insight, requires careful design to avoid domination by vocal participants or groupthink. There is also the risk of conceptual inflation: the more inclusive constitutional identity becomes, the less analytically useful it may be. Moreover, citizen-derived narratives—like elite ones—can be appropriated for exclusionary purposes if not critically interpreted. CONTICI will therefore adopt a reflexive, transparent, and ethically rigorous research framework to ensure that citizen voices are interpreted in context and with methodological care.
Ultimately, the central ambition of CONTICI is not to produce a singular definition of constitutional identity, but to open a space in which multiple, overlapping identities can be explored, compared, and negotiated. If constitutional identity is to be more than a legal fiction or a political slogan, it must be rooted in democratic practice. The project thus aspires to contribute not only to legal scholarship, but also to the future of a more participatory, inclusive, and resilient European Union.
