Constitutional Identity
Gary Jeffrey Jacobsohn
In Constitutional Identity, Gary Jeffrey Jacobsohn
argues that a constitution acquires an identity through experience—from a mix
of the political aspirations and commitments that express a nation’s past and
the desire to transcend that past. It is changeable but resistant to its own
destruction, and manifests itself in various ways, as Jacobsohn shows in
examples as far flung as India, Ireland, Israel, and the United States.
Jacobsohn argues that the presence of disharmony—both
the tensions within a constitutional order and those that exist between a
constitutional document and the society it seeks to regulate—is critical to
understanding the theory and dynamics of constitutional identity. He explores
constitutional identity’s great practical importance for some of
constitutionalism’s most vexing questions: Is an unconstitutional constitution
possible? Is the judicial practice of using foreign sources to resolve domestic
legal disputes a threat to vital constitutional interests? How are the competing
demands of transformation and preservation in constitutional evolution to be
balanced?
