Later this year, parliamentary elections will be held in Hungary and Israel, two autocratizing countries, whose incumbents are close allies of Donald Trump. The prospects for democratic and constitutional recovery in both Hungary and Israel depend not only on domestic political conditions, but also on an increasingly permissive global environment in which systems of governance that fail to meet the requirements of either constitutionalism or democracy reinforce and normalize autocratization.

Hungary and Israel as Negative Reference Cases

During this academic semester, I taught a comparative constitutional law course in the Global Law Program at LUISS Guido Carli University in Rome. Courses in comparative public law seek to describe a wide variety of constitutional systems in order to convey some form of generalizable knowledge about the advantages and disadvantages of different constitutional arrangements. By the end of the semester, I found myself repeatedly turning to the same two countries whenever I needed to present cautionary examples—cases that constitutional democracies should under no circumstances follow: Hungary and Israel. The former not only because I know it best, but also because for a decade and a half it has served as the Prügelknabe of the international constitutional law and social science literature; the latter because the state of Israel’s constitutional system and democracy moved to the center of global attention following Hamas’s terrorist attack of October 7, 2023, and the subsequent war in Gaza.

What can be said of both countries is that their systems of governance fail to meet the requirements of either constitutionalism or democracy. (The term “non-democracy” used in the title is borrowed from the title of an excellent Hungarian language book published in 2024 by my colleague Gábor Attila Tóth, since any adjectival modification of democracy—however pejorative, such as the frequently used ‘illiberal’ or ‘ethnic’—results in an oxymoron.)

In the final class of the course, when the topic was the compatibility of constitutionalism and democracy and the permanent tension between them, I attempted to synthesize national, transnational (especially EU), and global experiences. Once again, the examples of these two bogeyman states surfaced repeatedly, as cases that also reflect broader global trends.

Constitutionalism and Democracy: Tension and Compatibility

The paradox of the modern, post–18th-century concept of constitutionalism lies in its dual ambition: to promote good governance through effective legal instruments, while at the same time preventing the arbitrary exercise of power—not only by individual autocrats, but also by the tyranny of the majority. As Paul W. Kahn argues, democracy must be the self-government of the sovereign people, not merely governance in accordance with the will of the majority at any given moment. Yet the authentic expression of popular sovereignty typically occurs not directly, but through democratic representation, the creation and operation of which is far from straightforward.

For representative democratic systems genuinely to reflect the will of the sovereign people, free and fair elections are a necessary but insufficient condition. Equally essential is the guarantee of rights that express the equal dignity of citizens, as well as the existence of a system based on the rule-of-law that prevents the arbitrary exercise of power. This is why Jürgen Habermas deeply concerned about the future of liberal democracy in Europe and beyond, argues that there can be no democracy without constitutionalism and the rule of law—just as these are inconceivable without democratic conditions.

At the same time, constitutionalism, which necessarily constrains democracy, itself requires democratic legitimacy; it can never be the exclusive domain of elite constitution-makers or constitutional court judges. Constitutional scholars articulating a democratic critique of constitutionalism, such as Martin Loughlin or Roberto Gargarella, argue that constitutional principles, rights, and rules must be the subject of deliberation among equal citizens. Others, like Dieter Grimm, similarly explain the failure of the European constitutional project in 2005 by reference to the European Union’s “democratic deficit,” and to the absence of a genuinely European party system, public sphere, and a “European people” as the subject of a constitution.

The first shared feature of the illiberal Hungarian and Israeli constitutional systems is that—unlike the French or American solutions—they do not identify the subject of the constitution with the entire people, the demos, that is, the community of citizens, but rather with the nation defined as a Hungarian or Jewish ethnos.

The Identity of the Political Community in Hungary’s Fundamental Law

The provisions of Hungary’s Fundamental Law—proudly described as ‘illiberal’ by Viktor Orbán—that address the identity of the political community fall far short of the expectation traditionally placed on democratic constitutions, namely that everyone living under them should be able to regard them as their own. The Fundamental Law violates this requirement in at least two respects.

First, the lengthy preamble entitled the “National Avowal” does not designate as the subject of constitution-making all those who live under Hungarian law, but rather the Hungarian ethnic nation: “We, the members of the Hungarian nation … declare the following…” A few paragraphs later, the Hungarian nation reappears as “our nation torn apart in the storms of the last century.” The Fundamental Law defines the nation as a community whose binding force is “spiritual and intellectual,” that is, cultural rather than political. There is no place in this conception for national minorities living within the territory of the Hungarian state. At the same time, it explicitly includes Hungarians living beyond Hungary’s borders. Elevating the “unified Hungarian nation” to the status of constituent subject suggests that the scope of the Fundamental Law somehow extends to the entirety of historical Hungary—at the very least, to those places where Hungarians continue to live today.

This suggestion is not without consequences. The Fundamental Law grants voting rights to members of the “unified Hungarian nation” living outside Hungary’s territory, giving influence over the composition of the Hungarian legislature to individuals who do not live under Hungarian law. As is well known, in parliamentary elections since 2014, around 95 percent of the votes cast by non-resident Hungarians have gone to Fidesz, contributing significantly to the party’s repeated two-thirds majorities.

Second, the Fundamental Law characterizes the nation—identified as the constituent subject—as a Christian community, further narrowing the circle of those who can recognize themselves in it. “We recognize the role of Christianity in preserving the nation,” it declares, not merely as a historical observation, but as a claim with present validity. The placement of the first line of the Hungarian national anthem at the beginning of the document—“God, bless the Hungarian”—a natural prayer for a believing Christian at the time of its composition in 1823, seems to expect that anyone wishing to identify with the constitution today must also make this invocation their own.

A German constitutional law colleague of mine, whom I had not seen since the adoption of the Fundamental Law and who recently visited to lecture on the future of European society, still believed—when we discussed the possibilities facing a future Hungarian government without a two-thirds majority—that aside from the dreadful National Avowal, the text could coexist with a democratic system. Unfortunately, he had missed fifteen amendments to the Fundamental Law and a multitude of cardinal laws that entrenched constitutional bodies loyal to Fidesz, enabled the manipulation of elections, and not only embezzled the republic from the former parliamentary republic, but also hollowed out parliamentarism itself. By now, the National Assembly has “voluntarily and with pleasure” ceded part of its legislative authority to a Fidesz government ruling under successive states of emergency.

The past fifteen years have also demonstrated that the exclusionary definition of the political community in the Fundamental Law leads to serious discrimination—even in an otherwise largely ethnically homogeneous and predominantly secular society—against Roma citizens and against religious communities not recognized by the parliamentary two-thirds majority, such as the Magyarországi Evangéliumi Testvérközösség. The community has won its case against the Hungarian government because of its deregistration in 2017 in front of the European Court of Human Rights, but it is still not registered as a church.

Israel, the Nation-State of the Jewish People

Unlike Hungary, Israel does not have a single codified constitution, but a set of Basic Laws. One of these, adopted in 2018 (Basic Law: Israel – The Nation State of the Jewish People), declares that “Israel is the nation-state of the Jewish people.” The first section states that “the land of Israel is the historical homeland of the Jewish people,” and that “the right to exercise national self-determination in the State of Israel is unique to the Jewish people.”

Regarding the claim that Jews are the original indigenous inhabitants of the land between the Mediterranean Sea and the Jordan River, Yuval Noah Harari, the world-renowned Israeli historian, wrote in an article published in the Financial Times in early November 2025 that this assertion is clearly false. As in many other regions of the world, the population of this territory changed repeatedly over millennia, long before the first Jews lived there for a few centuries in the first millennium BCE—and even then, not alone. Nevertheless, when Jews began to resettle in the area at the end of the 19th century under the influence of the Zionist movement, the land was already inhabited. Approximately 750,000 Arab Palestinians were expelled from their homes (an event Palestinians refer to as the Nakba), while those who remained became second-class citizens of the State of Israel established in May 1948. According to the recent figures of the Israeli Central Bureau of Statistics, today, Arab citizens constitute about 18 percent of Israel’s population within the pre-1967 borders, or around 21 percent if one also counts the predominantly non-citizen Palestinian residents of East Jerusalem.

Under the 2018 Basic Law, Arabic was downgraded from the state’s second official language to a language with a “special status.” Israel’s Supreme Court rejected all fifteen petitions challenging the constitutionality of the new Basic Law. In other words, the Basic Law on the Jewish “nation-state” constitutionally entrenches the unequal status of the Arab population within Israel—including those who possess citizenship and voting rights, but whose towns were subjected to severe restrictions on freedom of movement under military control between 1948 and 1966; whose lands were expropriated for the construction of Jewish settlements; and who have faced systematic discrimination in access to education, healthcare, and infrastructure.

With this new element of the uncodified Israeli constitution, Jewish identity has come to take precedence over Israeli civic identity. A seemingly minor but telling manifestation of this is that official population registries allow individuals to identify only as Jewish, Arab, or Druze—but not as Israeli. In early 2023, when the extremely illiberal Netanyahu government attempted to eliminate judicial independence, mass protests by Israeli society rose to defend this core value of liberal democracy. Some even went so far as to envision the arrival of a “constitutional moment.” However, the Hamas massacre of October 7 dramatically altered the public mood. According to one poll, more than 80 percent of Israeli Jews supported the expulsion of Palestinians from Gaza. Paradoxically, a war that has claimed more than 70,000 Palestinian lives has once again shifted public discourse on Israeli identity toward Jewish national identity, marginalizing discussions of occupation, the rights of Arab Palestinians, the possibility of a binational constitutional arrangement, and not to mention the two-state solution.

This shift has also affected the jurisprudence of Israel’s traditionally largely liberal Supreme Court, which in numerous cases has refused to protect the property and personal liberty rights of Palestinian Arabs living in the occupied territories, invoking the disingenuous argument that Israel’s sovereignty over those territories is in any case uncertain.

International lawyers, such as Matthias Goldmann, have warned that Israel’s violations of international law have a boomerang effect on the state’s internal democracy. Joseph Weiler has gone even further, arguing that the transformation of Israel’s constitutional system—moving ever farther away from a Jewish nation-state conception toward one centered on Israeli citizens—outright excludes democracy itself from Israel.

Global Autocratization?

The constitutional-democratic prospects of both states are further undermined by the fact that constitutional and democratic backsliding has become a global phenomenon, driven primarily by Donald Trump’s second presidency, which has transformed American democracy into a kleptocracy by disabling all constitutional constraints. This process—through which the resolution of both the war in Ukraine and the war in Gaza has become a business affair for Trump and his entourage—has strengthened the position of autocratizing governments, including those of Israel and Hungary, while weakening the European Union, itself already internally battered by Orbán-style illiberals. During the 2022 Hungarian elections, Orbán’s completely immoral threat that the war might spread to Hungary led many voters, fearing for their safety, to vote for Fidesz in the largest proportion ever. Orbán continues to support a Trump-style „peace“ against the allegedly ‘pro-war’ opposition – even at the cost of Ukraine’s capitulation.

The upcoming elections both in Hungary and Israel will prove whether “the price of American authoritarianism” will be that these once constitutional democracies further sink into autocratization or can reverse their constitutional and democratic decline.