The Influence of Popular Conceptions of National and Constitutional Identity on the Position of Marginalized or Minority groups within a Nation State. A Legal, Empirical, and Comparative Analysis of Four Jurisdictions through the Prism of Gender, Populist Discourse, and Human Rights

By Silvia Gagliardi, Eoin Carolan, Som Banerjee, Demian Iglesias Seifret and Daniela Gutierrez Rodriguez in Latin American Legal Studies (2024).

Abstract

What influence might popular conceptions of national and constitutional identity have on the position of marginalized or minority groups within that system? In this article, we investigate whether and to what extent there may be a relationship between the two. It does so on the basis of a legal, empirical, and comparative analysis of four jurisdictions (Poland, Hungary, Uruguay and Argentina) through the prism of gender. The political and constitutional literature suggests the presence of populist rhetoric in the domestic politics of each state. However, they are distinct in potentially relevant ways, including differing regional human rights frameworks, varying performances in indices of democracy, and different forms of populism that the literature has identified therein. We conclude that these case studies demonstrate the potential for national and constitutional identity to function in an exclusionary manner with adverse real-world consequences for marginalized groups; to the apparent capacity of political parties or rhetoric to amplify this exclusionary potential by advancing highly traditional narratives of identity, or linking identity to contentious social issues; and to the limited efficacy of human rights mechanisms in mitigating the impact of informal or extra-legal influences.

Keywords: Constitutional culture; Comparative analysis; Marginalized or Minority groups; Sociological constitutionalism

Link to full article available here.