Die verfassungsrechtliche Identität der Bundesrepublik Deutschland. Karriere – Konzept – Kritik

Over the last decades the constitutional identity of the Basic Law became one of the most important topoi in the decisions of the Federal Constitutional Court. Although referred to in different decisions the meaning and implications of the term »constitutional identity« are still fluid. Furthermore, the concept of »constitutional identity« is heavy in meaning. In the use of the topos by the Federal Constitutional Court one can differentiate between three perspectives: Firstly, the term is used as a restraint to acts of amending the Basic Law, secondly, the constitutional identity is opposed to acts of the EU-law and thirdly, it is used as a limitation for the freedom of basic rights. The article analyzes these three different areas in which the term is applied. On this basis the concept of the topos is deconstructed: While the normative foundation of the idea of »constitutional identity« may lie in Art. 79.3 of the Basic Law, the term suggests a deeper significance. The chosen reference on the identity-concepts implies that there is more to it than Art. 79.3 of the Basic Law guarantees. However, the concept of »constitutional identity« cannot be thought as or likewise ontological-personal-identity. It rather has to be understood as a comparative perception. Reduced to this understanding »constitutional identity« is not a vague but an operable term. Nevertheless, the term does not only loose its glamour by this reduction but also can still be criticized. The main reason for this is that the idea of an identity of the Basic Law is inflexible to alterations of the constitution. Besides, the idea of »constitutional identity« ignores that the constitution can be understood as composed of fragments. The concept is even partially at odds with Art. 4.2 TEU. Another argument against the concept of »constitutional identity« can be brought up by thinking it in contrast to constitutional alterity. All these considerations show that the inflationary use of the term »constitutional identity« has to be reconsidered.