Constitutional identity, expressivism, and constitutional change through judicial interpretation: The Indonesian LGBT case as a case study

Abstract

Constitutional change can be produced through judicial interpretation when a particular dictum becomes informally entrenched and creates a new constitutional meaning without the need for a formal amendment. However, scholarship has not yet scrutinized the form of legal reasoning that may be used to push for such a change. The purpose of this article is to analyze the role of expressivism in justifying constitutional change through judicial interpretation. For this purpose, I have developed the expressivist framework into what I call “operationalized expressivism,” which refers to constitutional courts interpreting references to constitutional identity in the constitution such as to create a juridical effect. I then use the dissenting opinion in the Indonesian LGBT case as a case study of how operationalized expressivism can initiate a constitutional change. I have selected this particular opinion because of its potential to radically transform the constitutional landscape of Indonesia, as the dissenting judges have declared the Indonesian Constitution as a “Godly” Constitution that requires all laws to be consistent with religious values.