3 - Constitutional Identity as Discourse

Summary

This chapter builds upon Gary Jacobsohn’s work conceptualizing constitutional identity as characterized by contestations, rather than consensus. I argue that once we abandon the mythical, imagined creature called ‘We, the people’, we find a society that is far less cohesive and, often, far less agreed or agreeable about certain fundamental ideas. Within this realistic view of society, constitutional disharmonies and contestations make more sense. This chapter drills down on how these constitutional disharmonies and contestations can be understood as competing claims about constitutional identity. I look at the modalities of disharmonies and the narratives that constitutional actors employ in relation to ‘constitutional identity’ and identify two modes of argumentation that challenge extant claims about constitutional identity: ‘constitutional mis-identity’ and ‘constitutional dis-identity’. These two modes of argumentation help illustrate the dynamism of this contestation over constitutional identity. Through a case study of the state-religion contestations within two seemingly divergent constitutional systems, that is, Malaysia and the United States, I show how the framework of dis-identity and mis-identity allows us to better parse through the different forms of contestations over the centrality of religion in their respective constitutional identity.