In "Constitutional Identity," Gary Jeffrey Jacobsohn argues that
a constitution acquires an identity through experience from a mix
of the political aspirations and commitments that express a nation
s past and the desire to transcend that past. It is changeable but
resistant to its own destruction, and manifests itself in various
ways, as Jacobsohn shows in examples as far flung as India,
Ireland, Israel, and the United States.
Jacobsohn argues that the presence of disharmony both the
tensions within a constitutional order and those that exist between
a constitutional document and the society it seeks to regulate is
critical to understanding the theory and dynamics of constitutional
identity. He explores constitutional identity s great practical
importance for some of constitutionalism s most vexing questions:
Is an unconstitutional constitution possible? Is the judicial
practice of using foreign sources to resolve domestic legal
disputes a threat to vital constitutional interests? How are the
competing demands of transformation and preservation in
constitutional evolution to be balanced?
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