This article belongs to the debate » Restoring Constitutionalism
14 December 2021

Restoring Self-Governance

Constitutional Change and the Charge of Illegality

Perhaps the wave of authoritarian populism has begun to recede. Rebuilding liberal constitutionalism in its aftermath now requires some attention, as Andrew Arato and András Sajó suggest. (This intervention addresses some but not all of the questions they raise.)

In some places authoritarian populism eroded pre-constitutional norms. That can be repaired in part simply by adhering to the previously disregarded norms and in part by some sort of retrospective accounting, whether through “lessons learned” exercises, formal reports, and (perhaps) occasional official actions against those who served the prior regime.

Elsewhere, though, the erosion was inscribed in the nation’s constitution through formal amendments to the nation’s constitution. Equally formally, that type of erosion can be reversed by another set of constitutional amendments. But, sometimes, probably often, the new anti-authoritarian majority will not be large enough to satisfy the requirements of the nation’s amendment rule. What can be done under those circumstances?

One possibility, of course, is simply to push through constitutional change without regard to the pre-existing amendment rule. Sometimes that will be enough. Sometimes it won’t – particularly where the idea of legality has powerful political support.

Where simply bulling ahead with constitutional change seems unlikely to be productive, what can be done? The answer, I believe, combines foundational constitutional theory and practical political reality.

The theoretical point begins with a proposition about the constituent power. On one view – in my opinion, the better view – the power of a nation’s people to alter, amend, discard, or transform the constitution-in-place can’t be constrained by domestic constitutional law. Such changes need not be instituted to be implemented in perfect compliance with the constitution-in-place’s provisions for change. (The qualifier “perfect” is important for people like me, who believe that it is frequently politically prudent to come as close to complying with the existing amendment rule as possible even if perfect compliance isn’t possible because such compliance would prevent constitutional revision.)

For purposes of guiding political practice, though, we need not agree that this theoretical proposition is correct. All that’s needed is agreement that the proposition is one among several reasonable understandings of the constituent power. And, I believe, the persistence of the view in foundational constitutional theory indicates that it is (at least) reasonable.

Now comes political reality. It has two components. First, and probably more important, the narrowness of the new majority’s control indicates that a substantial number of the nation’s citizens continue to believe that the prior regime’s course was correct. Whatever happens next will have to take their presence into account. Second, reconstructing liberal constitutionalism requires a recommitment to the general principle of legality. Departing from the amendment rule in place will seem to some (and might actually be) a violation of that very principle – and therefore a betrayal of the reconstructive agenda.

These considerations place  a political constraint on change, as opponents of change will invoke the principle of domestic legality as a reason for opposing changes that don’t comply with the provisions-in-place. This political argument will have more force when, as in today’s Hungary, the procedures for change in the existing constitution weren’t the result (with one to me minor exception) of some sort of prior constitutional manipulation.

So, facing an inability to muster the numbers to satisfy the provisions-in-place for constitutional change, proponents must develop a political movement for change powerful enough to overcome the charge of illegality. I suggest that a process of bottom-up agitation for constitutional change, prompted in part by top-down leadership, might do the trick.

The idea would be for a new government, with a narrow but solid majority short of what’s needed to amend the constitution, to adopt measures – laws or policy statements – encouraging people throughout the nation to convene “assemblies” at which proposals for constitutional change would be discussed. (In my view, the top-down component isn’t really necessary: NGOs could convene such assemblies. Top-down support, though, would enhance the political movement for change. And history indicates that top-down intervention, taking the form of efforts by established political parties to influence the citizen assemblies, would be forthcoming even in connection with a nominally NGO-driven effort.)

These local assemblies should be as inclusive as possible, and in particular should welcome participation by those who support the prior regime. Designers of such processes sometimes suggest choosing members randomly, which might perhaps offset top-down efforts by the prior regime’s leaders to boycott the process.

Proposals supported by local majorities (or consensus or supermajorities) would be forwarded upward for further discussion and debate. My sense is that the process in Hungary would require only two stages: local and then national. Elsewhere there might be reasons for an intervening stage of regional assessment.

Proposals receiving the greatest support could then be moved to a stage of popular referendum, with rules and procedures coming not from the constitution-in-place but from the nation’s legislature. Again in my view, the changes could be promulgated by the legislature as constitutional amendments endorsed by the nation’s people directly (an exercise of the constituent power, if you will). But, again, a referendum would strengthen the political argument for constitutional change.

How does this proposal overcome the legality-based objection? That objection would formally be available. But, I suggest, it might be pointless. The process I’ve described could fairly be presented as accomplishing the same goals as the existing amendment rule – ensuring more than mere majority support for substantial constitutional changes. And, specifically, the process’s inclusiveness would create some “buy in” from adherents of the prior regime.

There are no guarantees, of course. The local assemblies might fail to achieve enough agreement. Some parties will successfully boycott the proves or try to sabotage it – and might oppose the final proposals on both legality and substantive grounds.

A final cautionary note: The process I’ve described and the changes it generates will almost certainly be challenged in the existing constitutional court, which might not have been reconstructed in the ordinary course (that is, by voluntary resignations and the operation of existing retirement rules). We shouldn’t be surprised to find that court invoking the principle of legality.

In a quite strong version the court might claim that the citizen-assembly process is inconsistent with the amendment rule in place. (This would be akin to the position the Spanish Constitutional Court has taken on independence referendums and popular consultations.) In a weaker version the court would find the purported amendments to be without legal effect because they weren’t adopted in compliance with the amendment rule. And suppose the court was careful enough to address – and reject – the argument that the novel amendment process was a direct exercise of the nation’s constituent power, that is, again, the power of the nation’s people, acting as a body, to alter the constitution without complying with the procedures in place for amendment.

What then? In my view that decision should have no weight. The reason is that the court’s discussion would be wrong, not necessarily because it would have to rest upon a mistaken foundational constitutional theory (though, as already noted, in my view it would indeed be wrong in that sense). Rather the decision would be wrong for institutional reasons: Constitutional courts shouldn’t intervene to overturn actions supported by reasonable accounts of the constitution’s meaning even if, in the court’s view, the account supporting the action is mistaken (though, again, reasonable). And that’s true even of actions resting upon reasonable versions of foundational constitutional theory.

Why so? Because liberal constitutionalism is ultimately a system by which a nation’s people govern themselves. Such a system requires that institutions – and specifically constitutional courts – put up with reasonable albeit mistaken choices the people make. Otherwise the people aren’t self-governing in any interesting sense. That’s a particularly important lesson to keep in mind after an authoritarian period, because authoritarianism ultimately is a denial of self-governance.

SUGGESTED CITATION  Tushnet, Mark: Restoring Self-Governance: Constitutional Change and the Charge of Illegality, VerfBlog, 2021/12/14,, DOI: 10.17176/20211215-142454-0.

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