From territory to temporality: constitutional thinking and time

21st-century constitution-making has seen constitutional amendment rules being designed more and more in a manner that favours extreme rigidity. This paper pushes for constitutional practice to take a U-turn and adopt extremely flexible amendment rules. Doing so provides long-term advantages such as (1) allowing future buy-ins, (2) permitting easy recovery from anti-democratic stresses and (3) encouraging state-building. This paper also argues how the fears of extremely flexible amendment rules are exaggerated, and these fears apply almost to the same extent to any amendment rules. Irrespective, most fears can be addressed better with certain constitutional design choices. On the other hand, moving towards the spectrum of constitutional rigidity comes with long-term trade-offs that do not apply to extremely flexible amendment rules, like intergenerational imposition, increased dependence on courts, and onerous reversibility of undesirable constitutional rules.

This paper explores the role of historical memory in the construction of political identity in the European Union and its Member States. The paper shows that the EU Member States are characterised by different ‘varieties of constitutionalism‘. The constitutional orders of the EU Member States are shaped by different historical experiences and memories, and for that reason they have different conceptions of democracy, sovereignty and the constitution. These differences matter for how individual states understand their member-statehood. I identify three main varieties of constitutionalism – post-fascist (e.g., Germany and Italy), evolutionary (e.g., UK and Denmark) and post-communist (e.g., Hungary and Poland) – and show that the variety of constitutionalism that characterises a state shapes its legal and political relationship to the EU.

The liberal core of democracy has become strained by populism and the attack on fundamental rights where the protection of national identity is frequently juxtaposed to European values. Within this context, memory laws securing certain historical narratives by excluding or even criminalising different views have been introduced in the region of CEE. Most often, such policies can be seen as deliberate attempts to construct a historical orthodoxy in the service of the ruling elite. Poland‘s attempt to criminalise the attribution of wartime Nazi Germany crimes to the Polish state or nation (2018) and other legal changes introduced in the area of memory and the Past are some of the most telling examples. At the same time, the rise of similar memory laws can be considered as part of a broader pattern marking the decline of liberal democracies. Against this backdrop, this presentation intends to explore memory laws as symptoms of populist developments in recent legal developments in Poland.

My presentation aims to frame the inquiry of our panel. To do so, it first sketches how constitutionalism has so far addressed issues of temporality conceptually - and how it has operated historically. Against this background, it explores four dimensions, in which temporality has shaped recent debates in constitutional thinking: regarding the past (e.g. via memory laws), regarding the future (e.g. via concepts of intergenerational justice or long-termism), regarding sequence (i.e. the temporal emergence of modernity) and regarding pace of time (e.g. acceleration of legislative and executive action). I will argue that temporality can be seen as an especially productive perspective to understand current debates in constitutional thinking across the globe.

A neglected aspect of the literature on Transformative Constitutionalism is its intersection with the question of vertical separation of powers. In this paper, Indian constitution‘s centralized federalism is viewed in light of its avowed aspiration towards socio-economic transformation. This paper attempts to understand the normative reasons behind the preference for a strong centre. It will focus on Nehru and Ambedkar‘s positions and argue that the focus on a ‘social revolution‘ in its constitutional design, or ‘transformative constitutionalism‘ as it‘s called now, is directly responsible for its choice of a strong centre in India‘s constitution. The ideals of planning and state-led socio-economic transformation were therefore seen as inimical to any significant sharing of sovereignty that would dilute this project, even at the cost of partition.