The turn to identity is reshaping federalism. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities and the rollback of environmental protections, has led progressives to explore more fluid and contingent forms of state identity. Conservatives too have sought to shift federalism away from the jurisdictional focus on limited and enumerated powers and have argued for a revival of the political safeguards of federalism, including state-based identities. This Article draws on comparative law to study identity as a political safeguard of federalism and its transformation from constitutional discourse to interpretative processes and, eventually, constitutional doctrine.
The experience of the European Union, where identity federalism also benefits from a textual anchor, reveals some of the complexities of this process. As an eminently vague concept, identity leaves too much room for judicial discretion and leads to unsolvable conflicts among courts as well as between courts and other branches. Like the old sovereignty-based approaches, identity encourages judges to draw bright lines, resurrects jurisdictional conflicts, and discourages cooperation and compromise. In the age of populism, identity federalism draws courts into new and particularly concerning forms of polarization.
TABLE OF CONTENTS I. INTRODUCTION II. THEORIZING IDENTITY A. Similarity versus Difference B. National versus Constitutional Identity C. Courts versus Culture III. IDENTITY AS A POLITICAL SAFEGUARD: THE CASE OF AMERICAN FEDERALISM A. Identity and Politics B. The Conservative Revival C. The Progressive Revival IV. IDENTITY AS DOCTRINE: THE CASE OF EUROPEAN FEDERALISM A. The Origins of Identity 1. The Structure of European Federalism 2. Reciprocal Supremacy B. Identity and Human Rights C. The Constitutionalization of Identity 1. Identity and Democracy 2. The Migration of Identity 3. Identity and Nationalism V. THE FUTURE(S) OF IDENTITY FEDERALISM A. Centralization B. Regionalism C. Populism VI. CONCLUSION I. INTRODUCTION
A specter is haunting federalism--the specter of identity. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities to the rollback of environmental protections, has led progressives to rediscover the emancipatory virtues of federalism and emboldened them to explore "more fluid and contingent forms of state identity." (1) The left's constitutional agenda overlaps with the conservative strategy to shift away from a focus on jurisdictional matters, seen as having failed to adequately protect state sovereignty, (2) and toward a revival of the political safeguards of federalism-including, importantly, state-based identities. (3) While dismissing the idea that states have an identity as "pointless, indeed often silly" (4) had been a common trope during the rise "and rise" (5) of the administrative state in the twentieth century, today's political climate and constitutional challenges indicate that, as Ernest Young has argued, "reports of the death of state identity are greatly exaggerated." (6)
The identity turn explains, at least in part, why some American scholars have found that "the most interesting developments in federalism are happening in Europe" and have looked for "European structures and solutions [that] may offer some options that Americans have previously failed to consider or appreciate." (7) Over the past decade, the European Union (EU) has upgraded its protections of national constitutional identity, (8) and its member states have started operationalizing their own similar protections. In particular, both national and supranational European courts have recognized identity not only as a political safeguard of Europe's admittedly "sui generis community in the process of progressive integration" (9) but also, and importantly, as a doctrine that "[constitutionalizes] national identity" (10) at both national and European levels. (11) This highly adaptable doctrine has been used both defensively, as a closure mechanism that shields nation-states from deeper supranational integration, as well as offensively as a sword against the authority of the EU. (12) As Joseph Weiler perceptively put it more than a decade ago, "[t]o protect national sovereignty is passe; to protect national identity by insisting on constitutional specificity is a la mode." (13) Developments in recent years suggest that identity has become the new sovereignty.
While identity federalism remains at an early, exploratory stage in American constitutionalism, the European experience has been sufficiently robust to allow an initial assessment, at least in its original context. Identity has fundamentally altered the tempo of constitutional politics in the EU. Despite hopes that it could serve as a tool of fidelity and principled compromise, the foregrounding of identity in constitutional discourse and its hardening into doctrine have often led to the escalation of long-simmering constitutional conflicts. Actors, especially judicial actors, that had been previously open to compromise, have become significantly more radicalized in the new constitutional landscape. Identity has colonized the self-understanding of the national constitutional orders and recast their relationship to supranational institutions on a basis that is more structural (which institution has the authority to decide what identity is?) rather than dialogical (what is the most inclusive or principled manner of making such decisions?). Identity has also spread like fire across the legal orders of the EU member states. From its original locus in Germany, (14) it has migrated to Spain, (15) the United Kingdom, (16) the Czech Republic, (17) Italy, (18) Poland, (19) and many other jurisdictions in between. Identity has arguably become the most successful legal transplant in the early twenty-first century. (20) Unsurprisingly, identity has shaped the legal disputes related to the crises that have recently befallen Europe, from the Eurozone crisis (is Germany's constitutional identity infringed when fiscal decisions, such as the decision to bail out Greece, are made at the supranational level? (21)) to the refugee crisis (is Hungary's constitutional identity violated if a EU regulation requires it to admit Muslim refugees through a quota system? (22)) and, more recently, the rule-of-law crisis (is Romania's constitutional identity encroached upon by the European Commission's anticorruption recommendations through the Cooperation and Verification Mechanism? (23)).
The institutional corollary of identity federalism has been judicial empowerment. Identity--national or constitutional--is an eminently vague concept whose interpretation leaves much room for judicial discretion. (24) The effect has been less a preoccupation with identifying the best interpretation of identity than a structural concern with the allocation of the authority to interpret its meaning. Thus, even while courts have struggled substantively with the task of defining identity, they seem to have uniformly cherished their power to authoritatively make such determinations. Judges have been adamant about protecting their turf even when substantively they could do no better than tie national constitutional identity to general values such as "respect for fundamental principles of our constitutional order or the inalienable human rights" (25) or "the essential attributes of a democratic law-based state." (26) Less benignly, in countries such as Hungary and Poland, where constitutional courts have been captured by authoritarian populists, (27) identity doctrines have played a critical role in immunizing the authoritarian backsliding from both domestic and European attempts to protect the rule of law. (28)
It is, of course, true that many of these features of identity federalism pertain to Europe's specific circumstances. Different languages, histories, and legal traditions within Europe give national constitutional identity a weight that states lack within the United States, where nationalization has brought about greater political, cultural, and social integration. There are greater objective differences between Italy and Austria than, say, between Vermont and New Hampshire. Empirical studies have shown that, for the most part, citizens of EU member states see themselves less as Europeans first than US citizens define their identity first as American and in subsidiary as citizens of their respective states. (29) Finally, even if identity were to play a similar role in the United States, as a political safeguard or a constitutional doctrine, American federalism has a vastly different toolkit and more settled structure, both discursive and doctrinal, than the comparatively still-underdeveloped European constitutionalism. (30) Over six decades after its beginnings, (31) Europe remains an association of sovereign national states ("Staatenverbund") whose member states, as Brexit is a constant reminder, retain the kind of exit options that American states lack. (32) EU member states continue to oppose including a United States-style supremacy clause in the Treaty of Lisbon, (33) despite the decade-long case law of the EU's apex court, the Court of the Justice of the European Union (hereinafter ECJ), holding that EU law has primacy over national law. (34) Mainstream European constitutional theory still conceptualizes relations of authority within the EU as heterarchical, rather than hierarchical, and refers to an ethos of constitutional tolerance through which respect for authority as "invited" rather than commended from the top down. (35) All these features, it is argued, set the EU apart from established federal systems.
And yet, while acknowledging these differences, it would be shortsighted to dismiss the relevance of Europe's experience with identity federalism. (36) To start, the Trump era has upended many of the formative compromises of...