17 June 2022

Pressure Drop

Tired, short of breath, chronically exhausted, woozy. The symptoms of Long COVID are known in year 3 of the pandemic, and a substantial share of the population suffers severely from them, for weeks, months, years. The omnipresence of exhaustion does not seem to me to be a clinical phenomenon alone, though. Many people feel it who didn’t even have COVID. You drag yourself through the days. Overburdened, overworked, it’s all too much: it’s work, you think. You go on holiday. You come back. You go on being exhausted.

There has been something like a strange pressure drop in these weeks of early summer in Germany. Not for lack of urgency, for sure: dearth, war, drought and pestilence, I don’t remember a time remotely as tense as this in all my adult life. The taps are wide open, it should be gushing like a fire hose. But no. A trickle, at most. Next COVID wave? No one even bothers. The Chancellor goes to Kiev. Then he goes home again.

We have been kind of feeling this pressure drop on Verfassungsblog, too. Never before did we have to struggle for texts as badly as last week, and that in times like these. Overburdened, overworked, it’s all too much: our authors’ diaries have always tended to be rather overbooked, but up until recently the pressure of events could be relied upon to eventually clear a gap for us at some point. That’s less and less the case. (Perhaps it’s our fault? If so, do let me know!).

What is going on? What is this pressure drop about? My thesis would be that it is not just about COVID. It’s not just about convalescence. It goes deeper than that.


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In Washington, the 45th President of the United States is proven to have instigated a violent coup attempt on 6 January 2021. In London, Her Majesty’s Prime Minister is proven to have lied to Parliament and broken his own laws. Everybody knew that already, though. It has been known for a long time. More and more details and ramifications are being revealed and brought to light and taken as an opportunity to declare all over again how unspeakably god-awful this all is. But the matter itself has been sitting there all the while, in broad daylight and very much in public, grinning in your face. This can’t possibly stand, you say? Oh, yes. It can, and it does. Look at me.

Authoritarian populism has a parasitic relationship with the liberal constitutional order. It sits and feeds on it like a polypore on the tree it decomposes, forming an independent organism at its expense. The metaphor is not mine but Weronika Grzebalska and Andrea Petö’s, and has been coined for the illiberal transformation in Poland and Hungary: neither Fidesz nor PiS, according to their analysis, actually intended to establish a new order to replace the existing “European liberal democratic project”. Instead, the illiberal transformation makes use of the structures and financial and political possibilities of this European constitutional project, appropriates the language and institutions of human rights and gender equality, establishes its own parallel civil society, subjugates democratic procedures to the ends of the ruling elites and their allies (Grzebalska/Petö p. 5). With this nourishment, it forms enormous fruiting bodies. The fungus has long since infected the EU as well. The Polish government will get its Recovery Fund billions. Judiciary made subservient to PiS? Constitutional Tribunal switches EU law on and off at the push of a button? Well, that’s just how it is going to be now, isn’t it? The Hungarian government also is meeting with the EU Commission again. Surely it will be possible to find common ground. The fruiting bodies keep growing. Heavy, big things. Bursting with vitality.

The British Home Secretary wanted to send a plane full of refugees to Rwanda this week. That didn’t work out, the European Court of Human Rights stopped it at the last minute. A victory for the European liberal democratic project? Certainly. It provides the Johnson government, along with the press it helps feed, with the opportunity to keep foaming about the ECHR and about the perfidy of “leftwing lawyers” for days on end, and to rehash the whole Brexit frenzy, and one can’t help suspecting that that was the purpose of the whole bloody exercise in the first place.

In Austria, Sebastian Kurz and the FPÖ have been driven from power a while ago, which is a stroke of luck, because also this week the ECJ declared one of their coalition’s supposed showpiece projects illegal: family allowance for Austrian families only. Back then, one didn’t even really know how to comment on this law. That it discriminates against EU migrant workers? That it violates European law? Well, of course it does, to even spell that out seemed downright trivial. Everyone knew from the start that this would never pass ECJ scrutiny. Quite like the PKW-Maut affair, right, Markus Söder? For years it has been sitting among us, this thing, grinning broadly in our faces. Declare it illegal? Go ahead. Make my day.

Authoritarian populism draws its parasitic nourishment from the constant double bind it confronts the liberal European constitutional project with: Fight us and you are no longer liberal, we win and you lose. Don’t fight us, and we win and you lose anyway. As in a toxic relationship, one part continually entangles the other in an irresolvable paradox that gives himself a semblance of dignity, power and self-confidence, while the other sinks deeper and deeper into fear and depression. How long has this been going on? Orbán was elected in 2010. Twelve years ago. Long before the pandemic. This must come to an end.

As it is with parasites: They cannot exist on their own. They live with their host and die with it. Authoritarian populism has no actual independent idea of a good social order. Without liberal democracy, it is nothing.

So it’s time to shake off the fatigue, stretch our backs, swap exasperation for anger, call in the divorce lawyer and fire up the pumping engines!

The week on Verfassungsblog

… is summarized by PAULINE SPATZ:

On June 15, 2022, the Bundesverfassungsgericht ruled that Merkel’s statements on the Thuringia 2020 state premier election and the subsequent publication on government websites violated the far-right AfD party’s right to equal opportunity. FABIAN MICHL sees the ruling as a continuation of the previous line of case law that treats government statements as administrative activity. He welcomes the dissenting opinion of Justice Astrid Wallrabenstein with the hope that in the future position and counter-position will again be more clearly contrasted and the lines of argumentation sharpened. BENT STOHLMANN criticizes the Senate for moving further away from taking into account the political dimension of government action by applying proportionality standards to constellations under state organization law. MEHRDAD PAYANDEH considers the most interesting part of the decision to be the subsumption of the Senate majority, because it is only here that it becomes clear what standards it specifically applies to the decision, whether a statement is made in the exercise of the office and what degree of restraint is then required.

In February of this year, the European Commission published a proposal for European Union-wide mandatory human rights due diligence for companies that fall under its scope. TINA ASGHARIAN, BETTINA BRAUN & ALLISON MILLER emphasize how important it is for human rights due diligence legislation, to anchor such law precisely with the ongoing involvement of rights-holders themselves, in order to center them.

After the European Court of Human Rights stopped the Rwanda flight this week, calls for UK withdrawal from the ECHR were raised once more – this time even among members of the British Government. EMILY REID considers a possible withdrawal in terms of the implications this would have on the EU-UK Trade and Cooperation Agreement.

The Brexit saga continues: with the Northern Ireland Protocol Bill, the UK government wants to unilaterally disapply large parts of the Protocol. It tries to justify the Bill on the basis of the doctrine of necessity. To MARK KONSTANTINIDIS, however, this justification seems to be a literal, if unconvincing, attempt to make a virtue of necessity.

Two months after the elections in Serbia, only the President has begun to serve his regular mandate – the official results of the parliamentary elections have not yet been announced, the new National Assembly has not yet been convened and the new government has not yet been formed. VIOLETA BEŠIREVIĆ reports on a democracy that is on hold, but may be stirred awake by Putin’s war of aggression against Ukraine.

This editorial, speaking of pressure drop, will now go into a summer break for a couple of weeks. See you in late summer! I wish you a restful time, speedy recovery if you need it, and much strength and confidence!

And if you don’t yet support our work on Steady: now would be a perfect time. We could use it.

All best,

Max Steinbeis

SUGGESTED CITATION  Steinbeis, Maximilian: Pressure Drop, VerfBlog, 2022/6/17, https://verfassungsblog.de/pressure-drop/, DOI: 10.17176/20220618-033116-0.

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