“Constitutional Resilience – How Can a Democratic Constitution Survive an Autocratic Majority?”: Freedom of Speech, Media and Civil Society in Hungary and Poland

Freedom of speech, media freedom and the freedom of civil society are the lifeblood of democracy. As far as the threats to freedom of speech, media and civil society are concerned, from a normative perspective, the problems of Hungary and Poland are decidedly not external to western democracies. The question arises of how resilient constitutions are or can be made in this matter, whereby political viewpoint discrimination takes a center role in the conetxt of not only constitutional resilience but also our European values.

Continue Reading →

How Can a Democratic Constitution Survive an Autocratic Majority? A Report on the Presentations on the Judiciary

European institutions and governments have come in for a lot of critique over the past few years. Sometimes such critiques have seemed unfair and hypocritical, in particular where those who criticize are no role models either (e.g. the European Union). And judging on a case-by-case basis, some the actions of the Polish or Hungarian governments seem perhaps not that extraordinary. Yet, once we look at the whole, a different picture emerges. As Tom Ginsburg and Aziz Huq have argued in their recent book How to Save a Constitutional Democracy, democracies can erode where we see changes with regard in the three fields key to preserving democracy: free and fair elections, the sphere of public discourse and the rule of law and the institutions enforcing it, i.e. courts and the administration. In Hungary and Poland, we see changes in all of these areas and this should worry us.

Continue Reading →

Laws, Conventions, and Fake Constitutions

Does pure majoritarian decision making have intrinsic value or offer better consequences for society? The case of Hungary is not isolated but is an integral part of a global phenomenon. In contrast with earlier waves of democratization that spread across the globe, more recent tendencies have led to the disintegration of democracies. Not only Hungary and Poland (two EU Member States), but also Russia (probably the first regime of this kind), and many other countries from Azerbaijan to Venezuela epitomize this phenomenon, in which the country in question adopts — apparently in a democratic manner — a legal transformation that moves it ever further from, rather than toward, democratic principles. Given that today democracy counts solely as a legitimate constitutional system, the most salient new feature is that authoritarianism must play at being democracy.

Continue Reading →

Beyond Electoral Mandates—Oversight and Public Participation

Those who win elections want to remain in power after the next election. They have an incentive to undermine the credibility of the opposition and to use the tools of political power to do so. Incumbents who aggrandize power and demonize opponents can produce situations where office holders are less and less threatened by credible organized opponents. The opposition, in turn, seeks to gain power not only by espousing alternative policies but also by questioning the integrity and competence of incumbents.

Continue Reading →

Constitutional Resilience

Resilience of a body in general describes the ability to cope with an attack on its immune system. What is undisputed in psychology or biology is also valid for legal bodies, in particular for states. The term “constitutional resilience” obviously refers to the abilities of constitutions to cope with attacks and in the end to cope with a real crisis. In searching for answers on what constitutional resilience is, this article asks three questions: Where are the vulnerable parts of a democratic state governed by the rule of law? How can one protect the vulnerability of the state or some of its features? If vulnerable parts of a Constitution are properly protected – are the democratic state and its constitution safe?

Continue Reading →

How populist authoritarian nationalism threatens constitutionalism or: Why constitutional resilience is a key issue of our time

The problem with movements and parties spearheaded by “populist” leaders such as Putin, Erdoğan, Orbán, Kaczyński or Trump is not that they happen to embrace more nationally focused policies that metropolitan elites widely condemn as unjust, ineffective or otherwise misguided. Nor is the problem that they embrace a confrontational political style and uncouth rhetoric at odds with the mores of reflexively enlightened society in political capitals across liberal constitutional democracies. Neither of those features would constitute a constitutional threat justifying sustained reflections on constitutional resilience. The problem with electoral successes of populist authoritarian nationalists is that they pose a fundamental threat to liberal constitutional democracy.

Continue Reading →

Introduction: Constitutional Resilience and the German Grundgesetz

What lessons does the plight of the Polish and the Hungarian democracy hold for a seemingly stable constitutional state like Germany? How resilient would the German constitutional setup turn out to be in the case of an authoritarian majority taking and successfully holding on to power? What kind of legal or institutional changes may be helpful to make that event less likely and/or less hard to prevent? These were the questions we aimed to address in a debate jointly organized by Verfassungsblog and WZB Center for Global Constitutionalism, generously supported by Stiftung Mercator.

Continue Reading →

The CEU Leaves – Hungarian Students are Left in the Lurch

For 27 years Central European University has operated in Hungary’s capital. That era has come to an end. The forced move of the CEU to Vienna signals to Hungarians and other citizens in illiberal democracies that vulnerability is their future. They are left to the wayside by the international community, abandoned by the European Union, and left questioning who will ever defend liberal-democratic values in practice.

Continue Reading →

Europe’s Rule of Law Dialogues: Process With No End in Sight

The cause for concern is not that violators of the rule of law are strategic political actors or that they are disingenuous. Rather, the real problem is the unspoken premise on the basis of which defenders of the rule of law are more and more inclined to accept these developments as the very features of the EU’s rule of law safeguards. This acceptance is based on the flawed premise that so long as a procedure is in place one cannot really do more to defend the rule of law.

Continue Reading →

Never Missing an Opportunity to Miss an Opportunity: The Council Legal Service Opinion on the Commission’s EU budget-related rule of law mechanism

Regrettably, we need to add the Council’s Legal Service to the list of key EU actors that seem intent on ignoring the existential threat to the Union posed by the spreading rule of law rot amongst EU member governments. In a (non-public) opinion on the proposed regulation of the Commission to create rule of law conditionality in the multi-annual financial framework adopted on 25 October 2018, the CLS indeed put forward multiple unpersuasive legal arguments to claim that the Commission’s proposal cannot be adopted. With this opinion, the CLS is advising the Council to actually prevent other institutions of the EU from doing their job to uphold and defend the set of common values on which the EU is based.

Continue Reading →