In August 2026, the Hungarian Constitutional Court (CC) rejected (here and here) the petitions challenging the Sixteenth and Seventeenth Amendments to the Fundamental Law. The petitions concerned the dismantling of the public-interest asset management foundations performing public duty, the termination of the mandate of the President of the Republic, the introduction of an age limit affecting sitting CC judges, and limits on eligibility for parliamentary office. In each case, the Court held that the petition, although framed in terms of procedural or public-law invalidity, in substance sought a prohibited substantive review of a constitutional amendment. The decisions prompted extensive separate opinions. The dissenters developed arguments closely aligned with those of the petitioners, while several concurring judges accepted the Court’s restrictive understanding of its powers but nevertheless expressed substantive objections to the reconstruction measures.

An earlier analysis of the petitions showed how Fidesz, after losing constitutional power, strategically reconfigured constitutional doctrine and authorities previously used against its own autocratization as constraints on democratic reconstruction. The four CC decisions show a positional reversal within constitutional adjudication, although it appears differently across the majority and dissenting opinions. In the majority decisions (rejection) of the CC, which has been described as servants of the interests of the Orbán regime, the doctrine remains unchanged, but its effect reverses: restrictions on the review of constitutional amendments introduced by Fidesz now prevent the review of constitutional amendments adopted by the new Tisza constitutional majority. The dissenting opinions reveal the positional reversal more directly. They revive the logic of the CC’s 2012 decision, developed as creative resistance to abusive constitutional practices of the Fidesz majority, and combine it with later doctrines to argue for admitting petitions against the new majority’s constitutional amendments. The concurring opinions do not follow this move: several judges criticize the reconstruction measures substantively while maintaining the Court’s restrictive 2013 understanding of its powers and, therefore, agreeing with the rejection of the petitions.

The Court’s Doctrinal Trajectory Before 2026

The significance of this positional reversal becomes clearer against the Court’s earlier case law, which counts four key decisions.

Decision 61/2011. (VII. 13.) is a warning and procedural opening, while maintaining the feasibility of the procedural review of constitutional amendments. The case arose from constitutional amendments adopted in connection with the retroactive 98 percent tax and the restriction of the CC’s jurisdiction. While maintaining that it lacked competence to review constitutional amendments substantively, it has identified the danger of abusive constitutionalism. The Court articulated strong warnings about constitutional amendment in light of constitutional values and Hungary’s international obligations and laid out doctrinal arguments on which a more demanding approach towards constitutional amendments could later build. Nevertheless, it only accepted review of constitutional amendments on procedural grounds (public-law invalidity).

Decision 45/2012. (XII. 29.) is a decision of creative resistance against abusive constitutionalism of Fidesz. The case concerned the Transitional Provisions of the Fundamental Law (TP FL), adopted separately from the FL but declared to form part of it. This decision developed doctrine creatively to defend constraints against Fidesz’s emerging illiberal constitutional project. The Court refused to allow Parliament’s formal classification of the TP FL as “part of the Fundamental Law” to determine its constitutional status as constitutional text and examined whether it fell within the constitutional authorization under which it had been adopted. If the CC considered the self-declaration of the TP FL, it could not have reviewed and annulled parts of it because it lacked competence to review the constitution and its amendments on substantive grounds, as established in its earlier case law.

Decision 12/2013. (V. 24.) signals the self-limiting turn and accommodation of democratic backsliding. The Fourth Amendment to the FL responded to Decision 45/2012 by incorporating many contested provisions of the TP FL into the Fundamental Law and expressly limiting the CC’s review of constitutional amendments to procedural requirements. When the Fourth Amendment itself was challenged, the majority of the CC accepted this new restriction as the applicable standard in the case (which concerned its own constitutionality) and refused substantive review. Nevertheless, the majority decision added that fundamental rights, EU obligations, and international law continued to constrain constitutional and legislative action, but emphasized that this signaling position did not create an enforceable substantive limit on constitutional amendment.

The dissenting opinions maintained that another doctrinal route was nevertheless available and could have been chosen. András Bragyova argued that the validity of the Fourth Amendment should be assessed under the FL as it stood when the amendment was adopted, which contained no rules on reviewing constitutional amendments. He recalled that substantive review had previously remained an interpretive question. László Kiss likewise argued that the majority had abandoned doctrinal resources available in decisions 61/2011 and 45/2012.

Decision 22/2016 (XII. 5) means a creative facilitation of the entrenchment of backsliding. Shortly after an unsuccessful attempt to constitutionalize constitutional identity, the CC developed constitutional identity judicially in the context of EU law. This concept was subsequently incorporated into the FL. This decision therefore represents a very different use of judicial creativity from 45/2012. The Decision 45/2012 resisted the emerging illiberal constitutional project, whereas Decision 22/2016 contributed to its constitutional entrenchment.

The Majority and Concurring Opinions of the 2026 Decisions: Restrictive Continuity, Reversed Effect

The four 2026 decisions reaffirm the restrictive position consolidated in 12/2013. The CC reads Articles S(3) and 24(5) of the Fundamental Law as permitting review of constitutional amendments only for violations of the procedural requirements governing their adoption and promulgation. The petitioners argued that the Court had first to determine whether the challenged provisions were genuinely constitutional norms and thus capable of being adopted through the constitutional amendment procedure. The CC rejected this distinction. Assessing the normativity, generality, purpose, temporal effects or permissible subject matter of the challenged provisions would, in its view, require an examination of their content and therefore amount to prohibited substantive review.

The majority opinion places this conclusion within the restrictive line described above. It regards decisions 61/2011, 45/2012 and 12/2013 insofar as they support the conclusion that, after the Fourth Amendment, the scope of review is confined to procedural requirements. It does not engage with the different constitutional functions of these decisions or with the line of reasoning, emerging in 61/2011 and still visible in 12/2013, concerning substantive constitutional standards that might constrain constitutional power. Instead, it stresses that the FL contains no such binding standard that would allow the Court to conduct substantive amendment review.

This is also the safer doctrinal route for the majority. Taking the alternative suggested most clearly by Péter Polt would have required the CC to engage seriously with the petitions and to develop its doctrine creatively, as it had done in 45/2012. The paradox is evident. The CC would then have had to exercise a form of “creative resistance against abusive constitutionalism”, where abusive constitutionalism refers to measures adopted as part of democratic reconstruction. A Court that, as a body, has accommodated the Orbán regime’s illiberal constitutional project since at least 2016 would have had to confront difficult questions about the nature of that regime, the position of the new Tisza constitutional majority, the purposes of reconstruction, and the constitutional implications of the political change following the April 2026 elections. Instead, the CC chose an interpretative approach that appears more convenient in August 2026 and easier to defend.

The concurring opinions make the convenience of this position particularly visible. Several judges accept the rejection of the petitions for lack of competence while criticizing the reconstruction measures substantively. András Patyi expressly distinguishes between his position as a scholar, from which perspective some of the amendments are constitutionally doubtful, and his position as a judge, in which he accepts that the CC lacks competence to review them. Balázs Schanda similarly criticizes particular reconstruction measures, including the restriction of passive suffrage and the treatment of sitting CC judges, while accepting the same jurisdictional limitation. Ildikó Marosi Hörcherné invokes 45/2012’s criticism of the Fidesz majority’s amendment practices in 2011 and draws a parallel with the rapid adoption of the Sixteenth and Seventeenth Amendments by the Tisza majority. She also refers to the need for constitutional culture and to a constitutional and European minimum that a constitutional majority should not cross, implying that the new majority’s measures are raising precisely these concerns. These opinions thus place the constitutional excesses of the Orbán period and the reconstruction measures of the new majority on a similar plane, without addressing the difference between an illiberal constitutional project and measures aimed at dismantling its institutional legacy.

The Dissenting Opinions of the 2026 Decisions: Positional Reversal

The positional reversal becomes most visible in dissenting opinions. They recover doctrinal resources through which the CC could reopen the possibility of reviewing constitutional amendments, with the potential effect of preventing some of the reconstruction efforts.

Their principal resource, as in the petitions, is Decision 45/2012. The dissenting opinions argue in different ways that formal adoption as a constitutional amendment does not necessarily settle whether the challenged provisions are genuinely constitutional norms and, consequently, whether Article 24(5) excludes their review. This revives the central move of 45/2012 (creative resistance against Fidesz’s abusive constitutionalism): the Court may first examine the legal character of an act despite its formal constitutional designation. In 2012, the Court used that reasoning against the Fidesz constitutional majority; in 2026, it is invoked in support of Fidesz’s challenge to the reconstruction majority.

Péter Polt develops the reversal most clearly. He accepts that the majority’s restrictive reading of Article 24(5) is possible but argues that the CC must first determine whether the challenged provisions genuinely constitute exercises of constitution-amending power. More importantly, he places 45/2012, a decision resisting abusive constitutionalism, alongside 22/2016, which creatively facilitated authoritarian entrenchment, as examples of the CC adapting its doctrine when new constitutional circumstances required effective constitutional protection. Even though the two decisions had very different functions, Polt, like the majority opinion, disregard that difference and presents both as part of a single tradition of creative constitutional guardianship. On this reading, the CC should innovate again in 2026 – this time in a way that would protect the illiberal constitutional order against reconstruction.

Attila Horváth follows a different route. He regards the limits of Parliament’s amending competence as reviewable under Article 24(5) and goes further by invoking the historical constitution, the Holy Crown doctrine and 22/2016 constitutional identity as sources of limits on the amending power. His use of decision 22/2016 therefore differs from Polt’s: Polt uses the decision to justify renewed judicial creativity, while Horváth uses the doctrine developed in it as part of the constitutional constraints binding the new majority. In this sense, Horváth most directly carries the CC’s illiberal-era jurisprudence into the new reconstruction setting.

The positional reversal lies in the changed constitutional function of familiar arguments. Formal constitutional status should not be conclusive; jurisdiction should not be interpreted narrowly when constitutional protection is at stake; and the CC should be prepared to develop doctrine in response to a new constitutional threat. In 2011 and 2012, such arguments were deployed to preserve constitutional-democratic constraints against the Fidesz majority. In 2026, they are redeployed to constrain measures aimed at dismantling the constitutional order that Fidesz subsequently built.

The 2026 decisions reveal two forms of positional reversal. The majority leaves the restrictive 2013 doctrine intact, but its effect reverses, while the concurring opinions show how convenient that continuity is: judges can criticize reconstruction without reopening the question of jurisdiction or confronting the difference between illiberal entrenchment and democratic reconstruction. The dissenting opinions go further by reviving and recombining doctrines once used to resist Fidesz in order to argue for broader review of the new constitutional majority’s reconstruction measures.