Constitutional Identity and States of Exception
摘要
This chapter argues that this notion of an ‘idealized or manufactured homogeneity’ present in theories of constitutional identity provides the basis for a comparative conceptual analysis between constitutional identity and states of exception, in particular, the understanding of states of exception articulated by Carl Schmitt. By understanding constitutional identity through this lens of exception, the utility of constitutional identity can be revealed, but also, importantly, its fundamental dangers; not least, the fundamental democratic principles that ought to be embodied in a liberal constitutionalist order. However, constitutional identity’s other function as a means of delineating the limits of the constitutional amendment power also reveals its potent potential to limit constitutional abuse, not least in the context of abuse of emergency powers.