Restorative Constitutionalism I: theoretical perspectives

Restorative constitutional change can take numerous forms: It can involve the formal replacement of a constitution, formal constitutional amendment, the repeal or amendment of quasi-constitutional legislation, or new approaches to judicial interpretation. It can also be both an actual mode of change, and a rhetorical source of justification or legislation. The practice of restorative constitutionalism also involves an interesting set of normative questions. In many constitutional orders, it is obvious that a restorative framing has great rhetorical power. But the practice also raises dangers: one concern is that a restorative framing may unduly limit or inhibit constitutional imagination. Another is that it may become a cover for “abusive“ constitutional change. The language of “restoration“, therefore, should be carefully scrutinised to determine its capacity to achieve truly pro-democratic change.

For the first time in a decade, a united Hungarian opposition to Viktor Orbán and his Fidesz party has a real chance of winning elections in Hungary slated for April 2022. But even if the opposition can succeed on a tilted playing field, they will face a legal situation in which significant change has been deliberately denied to them, requiring them to govern from inside Orbán‘s legal prison. If the opposition wins a mere majority in the Parliament, its political will can be blocked by Orbán‘s legacy laws and hand-picked guardians. What can be done? This paper explores this question, and specifically the potential for European Law to provide Hungary with a path out of this prison.

Constitutional transition from hybrid regimes is not simply about crafting a new, democratic constitution for a diverse society complete with checks and balances, rule of law and fundamental rights. Rather, it should address the manner of reclaiming constitutions as constraints on political powers and as charters of self-government. And unlike in the paradigmatic cases of Third Wave transitions to democracy, the logic of adversative constitution-making will not work automatically in the context of hybrid regimes that strategically draw on the ideas, language and design of ‘constitutions with (and not without) constitutionalism.‘ In doing so, hybrid regimes hijack the vocabulary and imagination of constitutional democracy. An account of constitutional transition out of a hybrid regime must therefore offer a vision for a forward-looking constitutional (re-)settlement, while keeping in mind the key features of hybrid regimes.

The United States has now at least semi-officially been downgraded to the ranks of a “backsliding democracy“. Many scholars have also noted the attacks in the US and elsewhere on the “rule of law“. But there is a complex relationship between the two trends. What if the “rule of law,“ defined as adherence to procedural norms, works in systematic ways to frustrate democratic wishes and goals? It is one thing if the “rule of law“ is thought to include a rich substantive basis that might include, say, “establishing justice“ or “securing the blessings of liberty,“ as stated in the Preamble to the United States Constitution. But one can also posit a completely formal notion of fidelity to law where, for example, one simply has to accept the inability to move closer to “justice“ or “the blessings of liberty“ because existing institutions entrench the power of those committed to a substantively unjust status quo. This paper explores this tension in the US and broader comparative context.

How can a future democratic government recreate constitutional democracy after more than a decade of authoritarian constitutional politics? This paper explores this question through the lens of recent and ongoing Hungarian constitutional experiences, and specifically the possibility that a united opposition beats Fidesz in the 2022 parliamentary elections. Even if this will happen, it is very unlikely that the new governing parties will reach the two-third majority which according to the current rules is necessary to enact a brand new constitution or even to amend Fidesz‘s ‘illiberal‘ constitution. So the question may arise whether there is an alternative to either breaking the legality by repealing the Fundamental Law with a single majority, an approach represented by Péter Márky-Zay, the Prime Minister candidate of the oppositional alliance, as well as by some constitutional scholars, or to doing nothing about the ‘authoritarian enclave‘ (Andrew Arato) of the 2011 Fundamental Law.