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Ambiguïtés identitaires dans les constitutions de la Roumanie moderne : 1866, 1923, 1991

The concept of constitutional identity, albeit central to constitutionalism, is a notoriously ambivalent notion, eluding the definitional capabilities of constitutional law and political and constitutional theory alike. Attempts at defining identity usually revolve around generalities, such as the division between ethnocentric and contractualist conceptions of the state. The paper constitutes an archaeological exploration into the intricacies of identity. It proceeds not from grand theory but from the tribulations of a particular constitutional norm. Article 3 (4) in the current Romanian Constitution, which forbids the ‘colonization of foreign populations’ on the state territory, is an identity-related provision that has withstood, in slightly modified form, the test of time. This norm can be found in all liberal fundamental laws of the country, i.e., the constitutions of 1866, 1923, 1991; it was also reproduced in the illiberal constitution of 1938. The role of the norm in the logic of these fundamental laws has changed however. The prohibition of colonization was first incorporated in the constitution of 1866, as a particular expression of a highly ethnocentric constitutionalism. Article 3, rejecting colonization, and Article 7, restricting naturalization, were flipsides of the same identitary project, aiming to define the fledgling nation in opposition to and by rejecting „the foreigner”. In the philosophy of the current constitution, the norm is an atavism. The identitary concerns and fears have shifted and taken a new form, namely, the preclusion of fragmentation by constitutional means.