National Identity and Constitutional Identity
Before discussing the idea of constitutional identity, the concept of national identity must be introduced. In its simplest definition, national identity refers to one's identity of belonging to one sovereign nation.
It is forged both by objective elements and subjective factors.[764] Constitutional identity, like national identity, is also an imagined community.[765] It refers to the identity of a constitutional subject, which in turn means ‘the collectivity of strangers that become encompassed within the same constitutional order’.[766] Moreover, constitutional identity is versatile[767] and will adapt to the ever-changing socio-political environment.[768] Despite its fluidity, it can be apprehended more concretely and easily, because it is ‘the self-identity of the... polity framed by the Constitution’ [769] Namely, one can better appreciate the concept of constitutional identity through constitutional texts, constitutional amendments, judicial decisions and political implementation.Specifically, the original constitutional text is a starting point[770] because it is the documentary record of a constitutional moment.[771] Few events are more cardinal than constitution-making in shaping the constitutional identity of a country. Even though the original text can be revised or rewritten later, its spirit may persist and be incorporated into new constitutions. This does not mean that the original constitutional text is the only authority in studying constitutional identity. Most constitutions experience constitutional change, and both formal[772] and informal constitutional changes[773] remodel constitutional identity. In theory, constitutionmaking creates a new constitutional identity, whereas constitutional amendments do not.
The difference is usually a matter of degree: the more antique a constitution is, the more possible constitutional identity has been changed by constitutional amendments.In addition, ‘a nation’s constitutional identity extends beyond the text itself’. [774] Constitutional provisions that prescribe how to amend the constitution should not be the only mechanism of constitutional revision.[775] Instead, judicial interpretations and landmark statutes are sometimes ‘the primary vehicle for the legal expression of popular sovereignty’.[776] Like it or not, the judiciary often plays a critical role in shaping constitutional identity when interpreting the constitution.[777] Some crucial decisions become the crux of constitutional identity by filling the gap between constitutional norms and practices. Finally, charismatic political figures also have the capability to shape constitutional identity without constitutional revision.[778] Politicians may appeal to popular sovereignty more easily because they are directly elected by the public. In the US, for instance, some laws, such as the Civil Rights Act, are called ‘super statutes’ in the sense that they have reshaped the whole country’s constitutional understanding.[779] This suggests that politicians can alter constitutional identity without revising or rewriting the constitution.
In terms of the relationship and interaction of the two identities, people with the same national identity usually share the same constitutional identity, although constitutional identity is by no means equivalent to national identity.[780] Given that a constitution is one of the most important symbols of a nation, the two concepts overlap to a considerable extent. Citing pre-Second World War Germany as an example, Rosenfeld points out that Hitler’s Third Reich abolished the Weimar constitutional identity, but not the German national identity.[781] Conversely, Taiwan is not yet an independent country recognised by global society, but this political reality does not hamper the growth of Taiwanese constitutional identity as an imagined constitutional community.
In other words, a group of people can possibly change their constitutional identity without altering national identity and vice versa. As a corollary, constitutional identity ‘does not need a nation for its existence’[782] In this regard, the rise of Taiwanese constitutional identity may be a good example. Furthermore, the scope of constitutional identity may be broader than national identity. The debate surrounding constitutional patriotism[783] clearly indicates that some constitutional ideals can travel beyond national borders.Despite the conceptual distinction, the two identities usually grow symbiotically, because a stable political environment breeds an endurable constitution.[784] In return, constitutional identity may also undergird national identity when the latter faces pressure from regional integration. In the context of the EU, for example, ‘the concept of constitutional identity is typically used to defend national identity (sovereignty) against the supremacy of EU law’.[785] In addition, constitutional identity may provide an alternative imagination of national identity. Therefore, how constitutional identity and national identity interact with each other in the context of the ROC Constitution in Taiwan is particularly intriguing, given the cataclysm in 1949 when the Kuomintang (KMT) lost the Chinese mainland to the Chinese Communist Party (CCP) and then brought the just-promulgated Constitution to Taiwan.
III.