Interconstitutionalism Buried in the ‘Historical Constitution’ of Hungary?

Gábor Mészáros

Princeton University

Interconstitutionalism focuses on techniques and practices that help keep alive the judicial interpretations and values of past constitutions. Although the phenomenon might best be explored in federal states, where there is communication between public law at the federal and state levels, as Jason Mazzone and Cem Tecimer observe in their article, interconstitutionalism can also be found in countries with a new national constitution. My focus here is on this latter case. I show the relevance of interconstitutionalism in Hungary, a country where a new one-party constitution ended liberal democracy and where interconstitutionalism has been used in an abusive manner to help construct an autocratic regime. 

In Hungary, the 2010 Constitution (Fundamental Law), which repealed the 1989 Constitution, asserted the relevance of maintaining the country’s pre-1944 constitutional tradition. The preamble highlights the importance of Hungary’s 1,000-year-old “historical constitution” and respects the Holy Crown, which “embodies the constitutional continuity of Hungary’s statehood and the unity of the nation.” The Fundamental Law thus imports the historical constitution, save for a period of its suspension during foreign occupation. 

Despite this narrative of continuity, on March 11, 2013, the Hungarian Parliament adopted the Fourth Amendment to the Fundamental Law, which repealed the rulings of the Hungarian Constitutional Court issued before the entry into force of the Fundamental Law. In its amended form, Article 24(5) of the Fundamental Law also prevents the Constitutional Court from reviewing the substance of constitutional amendments. 

These reforms break the continuity of the Court’s precedents and can be understood as a political response to the Court’s Decision of 22/2012. (V. 11.). That decision had asserted the Court’s power to ensure coherence of the Constitution: the Court stated (para. 41) that “the principal statements expressed in the Constitutional Court’s decisions based on the previous Constitution shall remain applicable as appropriate also in the decisions interpreting the Fundamental Law.” After the Fourth Amendment, the Court addressed the same issue in its Decision of 13/2013 (VI. 17.). There, the Court concluded that it remains the task of the Constitutional Court to refer to legal principles and constitutional values developed by the former Court, on a case-by-case basis. At the same time, the Court observed that, because of the Fourth Amendment, it may disregard previously accepted constitutional principles informing constitutional interpretation, even when the text of the interpreted provision of the Fundamental Law repeats text from the previous Constitution. This decision allowed for interconstitutionalism on a case-by-case basis. However, the fact remains that after 2013, the Constitutional Court’s former case law based on the Constitution of 1989 is no longer actually binding on the Court under the Fundamental Law. 

After the adoption of the Fundamental Law, the Court (not yet politically captured) initially drew upon the legal values of the “historical constitution” in its decisions in an attempt to protect judicial independence.  In 2012, in Decision 33/2012. (VII. 17.), for the first time in the history of modern constitutionalism, the Hungarian Constitutional Court referred to the “historical constitution” in deciding whether new rules requiring early retirement of ordinary judges violated judicial independence. The Court concluded that reducing the retirement age can only happen gradually within a long transitional period (a requirement not fulfilled by the relevant law) by pointing to two acts concerning judicial independence from the 19th century.  The Court referred (para. 74) to Article R(3) of the new Constitution, which provides that the “provisions of the Fundamental Law shall be interpreted by their purposes, with the Avowal of National Faith contained therein, and with the achievements of our historical constitution.” As the Court declared, Article R(3) allows the Court to choose elements from Hungary’s historical-constitutional past whose achievements it wishes to carry forward. The Court interpreted the historical constitution through the concept of “historical achievement,” explaining that “when the Fundamental Law ‘opens a window’ on the historical dimensions of our public law, it makes us focus on the precedents of institutional history, without which our public law environment of today and our legal culture in general would be rootless.” In short, the still-independent Court followed constitutional orders to use the “historic constitution,” but it did so in a way that preserved liberal constitutionalism.  

This 2012 decision, which drew the historical constitution from the past into the present, represented an important form of interconstitutionalism. But the Court’s standard for invoking “historical achievement” was far from clear. That proved problematic when, within a few years, the Court was captured politically, because cherry-picking parts of Hungary’s “historical constitution” could then be used for ends that supported the illiberal government — what some scholars have described as “breed[ing] the public law illusion on Hungarian constitutional heritage.” The “historical constitution” was – and remains – so indeterminate that it may serve both liberal and illiberal ends.  

For the independent Constitutional Court, the concept of an “invisible constitution” had been the leading metaphor that aided the rule-of-law revolution for two decades following the fall of communism. However, after 2010, the Constitutional Court, as the most robust non-majoritarian institution, became a target of the Fidesz supermajority government – as did the very concept of liberal constitutionalism. During the past twelve years, the Court has been packed with loyalist judges and the notion of an “invisible constitution” has disappeared from constitutional discourse.  

Any idea behind the “historic constitution” as bringing stability and continuity to Hungarian constitutionalism has clearly failed given the destabilizing actions of the supermajority Fidesz government. This supermajority has amended the new constitution twelve times in twelve years, often substantially. 

Moreover, the now politically-packed Constitutional Court regularly breaks with the former independent Court’s judgments. For example, the previous Constitution provided, and the Fundamental Law still declares, that everyone shall have the right to freedom of peaceful assembly. However, after demonstrations at the prime minister’s home, the Parliament amended the Constitution in 2018 to strengthen protections for family and private life. The new Article VI of the Fundamental Law now states that exercising the freedom of expression and the freedom of assembly shall not violate the private and family lives and homes of others. This new provision does not honor the “historical constitution” but breaks from it. In its Decision 13/2016 (VII. 18), the Constitutional Court applied the new Article VI to permit limitations on demonstrations. In its ruling, the Court invoked two cases from the Supreme Court of the United States: Carey v. Brown [447 U.S. 455 (1980)] and Frisby v. Schultz [487 U.S. 474 (1988)]. As with interconstitutionalism, the flexibility involved in looking to other constitutional regimes permitted the Court to draw from legal sources that help solidify the government’s political power, instead of defending constitutionalism itself. The end result is that the case law of the independent Constitutional Court has been written out of Hungarian constitutional history.  

Principles developed by the previously independent Constitutional Court, including those relating to the proper use of the “historical constitution,” once contributed to the development of liberal democracy, constitutionalism, and the rule of law after the fall of communism. Later, however, the packed Constitutional Court began deploying interconstitutionalism to reach illiberal outcomes. Moreover, the current government and Court show selective adherence to the “historical constitution,” tossing it aside by either amending the Constitution or disregarding the case law of the formerly independent Court whenever it suits them. 

Today, the commitment to the “historical constitution” and the constraints imposed by the Fourth Amendment have led to interconstitutionalist practices in which the constitutional framework now aids autocracy. Overall, in Hungary, interconstitutionalism has facilitated a break from democracy in the Fundamental Law and in the decisions of the Constitutional Court. Hungary shows that interconstitutionalist uses of prior constitutions to interpret an in-force constitution can be highly selective, and ultimately destructive of liberal ends.

Gábor Mészáros is a Fellow in Law, Ethics and Public Policy at the University Center for Human Values, Princeton University. He expresses his gratitude to Kim Lane Scheppele and Gábor Halmai for their valuable comments on a draft of this piece.

Suggested Citation: Gábor Mészáros, ‘Interconstitutionalism Buried in the ‘Historical Constitution’ of Hungary?’ IACL-AIDC Blog (23 May 2023) https://blog-iacl-aidc.org/wmps-interconstitutionalism/2023/5/23/interconstitutionalism-buried-in-the-historical-constitution-of-hungary.