Identity Politics and the Militarisation of Constitutional Law

Abstract

In this article, I shall focus on the legal consequences of one of the most obvious features of populisms: identity politics. In particular, I shall explore how populists in power use constitutional law to identify and fight the alleged enemy, thus confirming their Schmittian flavour. In Schmitt, public law becomes part of a constitutional narrative that represents the people as forged by a static identity that goes back to the mythological origin of the legal system. This reconstruction is based on an organicistic reading of the concept of the people. This identitarian public law makes instrumental use of the moral argument, the historical argument and the religious argument. Populists in government tend to militarise constitutional law in many ways and in this article I will focus on two strategies: one that looks backwards, consisting of the instrumentalisation of the argument of constituent power; and one that looks forward and leverages the use of constitutional amendment.