Márton SULYOK: On Methodologies, Findings and “Contextual Determinants”

Comments Inspired by some Evidence on Constitutional Courts

In their book titled High Courts in Global Perspective (Evidence, Methodologies and Findings) published in 2021 by University of Virginia Press, the editors provide constitutional and political science scholars the map to a treasure trove of empirical and quantitative sources and findings put together to provide insight (from a birds-eye point of view) into the strengths and weaknesses of research on “specialized constitutional courts […] playing a growing role in the review of both proposed and enacted laws” (p. 1.), or “specifically constructed to review the constitutionality of legislation and ultimately regulate the boundaries of political institutions”. (p.1.) Exchange of ideas on the operation of high courts and desirable reforms to their composition and competences is a dominant discourse in today’s world, especially when it comes to constitutional courts, and this book serves all stops of this discourse.

Nuno Garoupa, the lead editor, is not an unknown “contextual determinant” of American scholarship directed at the global study and understanding of the composition and operation of apex (i.e. high) courts in the national and international environment. His academic footprint is driven by examining judicial power and behavior(alism) – namely activism –, judicial politics, as well as procedural issues like the economic theory of exclusionary rules or voting procedures in terms of constitutional review, or quantitative approaches to constitutional courts in Western Europe. Rebecca D. Gill and Lydia B. Tiede are both professors of political science working with the comparative study of judicial institutions, judicial selection, judicial behavior and decision-making. The combination of their viewpoints and approaches makes the book a valuable resource supporting research directed at understanding the inner workings of and external influences on the judiciary.

In framing my review, I would like to go back to 2011, because it was then – exactly ten years before the publication of this book –, when Garoupa published a paper with Tom Ginsburg (another well-known “contextual determinant” of constitutional law scholarship) on how constitutional courts built their reputation. In this paper, they first argued that such courts that were “specialized”, because they have been created based on the 1920 Kelsenian model, which leads to two consequences – them being wedged between two dimensions: the political and the judicial. Their key argument was that these courts are inevitably political actors (being created by political institutions through political processes) as their actions of norm control (acting as what relevant academic literature calls “negative legislators”) also have political consequences. Moreover, they added that the model’s application in the different countries highly depends on local conditions.

As admitted in its Introduction, High Courts in a Global Perspective was originally intended as a collection of “draft papers, conversations and commentary” compiled in a research project funded by the US National Science Foundation, but it does much more than starts the conversation on high courts in a global perspective. Where possible, the book, its editors and the authors apply on analogies to the legal and constitutional system and doctrine of the United States to provide context for their understanding of the basic tenets of these structures.

Based on the above-mentioned qualities, this volume intends to offer a comprehensive methodological summary and commentary of globally available data on judicial behavior and relevant organizational patterns. It provides detailed insight – through sixteen chapters – into various aspects of the judicial realm such as (i) looking at patterns and indicators of various types of judicial behavior from New Zealand to India, (ii) providing insight into some of the burning questions scholars have thus far ventured to ask and answer in terms of two European (international) apex courts (the ECtHR and the CJEU) in an academic assessment of their success, e.g. by looking at the effect of judgments on national legal systems and the importance of national jurisdictions, or the application and citation of these judgments by (inter)national supreme and constitutional courts.

At times, the top-down, birds-eye perspective on global literature and research efforts directed at the various judicial systems presented in the book and its chapters produces such statements like “existing data neglect important areas of institutional activity entirely”, talking about the absence of specific research into the workings of the EU General Court. Not to argue with the fact that the EU General Court’s activity could be subject to more comprehensive research corresponding to some of the methodological avenues presented by the book, but it should be noted that huge areas of the EU General Court’s institutional activities are adequately dealt with by some contemporary scholars in Europe. This research also delves into questions that are treated by the authors, so one should not forego the conclusion that entire segments of the General Court’s work are neglected by scholarship. Maybe international scholarship (outside of Europe) is what is lacking to a greater extent thereby not informing extrinsic views on the operation of this supranational judicial entity, which can be construed as a problem regarding the goals of the book itself.

Regardless, the book is a well of meticulously thought-through and logically constructed “scholar’s guide” on how best to look at the operation of these courts from a comparative perspective. The rigor with which the editors construct the internal cohesion of the layers of methodological argumentation is exemplary. Hall and Wright argue in California Law Review (2008) that “[l]egal scholars, the mockingbirds of the academy, are great borrowers of scholarly methods. We experiment with the tools of historians, economists, sociologists, literary theorists, moral philosophers, and others, often to great effect. Yet despite these innovative efforts to study legal doctrines and institutions through different lenses, legal scholars have yet to identify their own unique empirical methodology.” In furthering this effort to create a unique empirical methodology, this book can certainly be considered a guiding light.

In addition to all this, the book addresses another challenge in terms of similar research: the lack of adequate information and data for in-depth empirical and quantitative studies. The book offers a well-rounded summary of empirical literature on Eastern Europe (p. 189-192), and sets a priority for future research in Europe: to address “data availability and publicity”. From my time working with the EU Fundamental Rights Agency between 2015-2020 as a member of the Management Board, I have first-hand experience on how absence in terms of vital data may disrupt otherwise quintessential work in monitoring best practices in that field, but we can imagine how this is reflected in terms of the intimate workings of the judiciary, whether we focus on “judicial behavioralism” or “content analysis”, as explained and promoted by Hall and Wright in their work cited above.

Hall and Wright this method of “content analysis” best fitting to projects that look into „(1) the bare outcomes of legal disputes, (2) the legal principles one can extrapolate from those outcomes, and (3) the facts and reasons that contribute to those outcomes and principles.” They also refer to Barry Friedman’s statement in his piece on Taking Law Seriously that „it is almost impossible to study law in a meaningful way without some attention to the [content of] opinions that contain these justifications.”

With this in mind, I would like to mention that not too long ago the creation of a database has been put in motion – spearheaded by the Hungarian Constitutional Court – called ECCN, European Constitutional Communication Network. (Expected to be operational by mid-2022.) Methodologically speaking, ECCN focuses on uncovering patterns and causal links across and between different national constitutional jurisdictions in Central and Eastern Europe. Its purpose is to enable a better understanding of local, national, regional specificities (previously dubbed as “contextual determinants”). In doing so, the database pools cases primarily from the constitutional jurisprudence of about a dozen Central and Eastern European EU countries that are in the center of public and therefore academic attention. In this effort, ECCN intends to enable the user to uncover and understand patterns of reasoning, thereby facilitating comparative constitutional research and application of law with such mindset. (So far, there is only one similar initiative known on the European level, the so-called CODICES, which is operated by the Council of Europe, casting a much narrower net, due to the limited scope of data available and the larger number of Member States concerned.)

In addition, ECCN also intends to open a window into any eventual “contextual determinants” of the operation of the high courts issuing the decisions selected and registered, the database may also be useful in pointing to traces of “constitutional convergence”, a theory thoroughly analyzed by Dixon and Posner. They argued in 2011 that while some find that the constitutional law of states is and should inherently be independent of the constitutional law of other states, there are concurrent opinions which put forth that “constitutional law of one state inevitably influences, and should influence, constitutional law in other states.”

I think that this must then be true to “applied constitutional law” as well, and this is what the ECCN projects intends to shed light on by providing a tool of learning for European courts in the region, enabling them to engage in judicial dialogue through their cases and their reasoning. Through such an effort, maybe some regional commonalities might emerge as well (beyond certain local conditions and national specificities) that will point to the fact that when certain constitutional law problems may be similar or the same in certain states, then it stands to reason that correlation between their constitutional legal solutions is to be expected as well. And this is particularly true if they are closer together due to a shared or similar historical past, or economic and social – contextual – determinants.

This brings me to my second point regarding the book, being that Garoupa, Hill and Tiede also call attention to the importance of having in-depth knowledge on regional and national specificities when analyzing high courts. In a very important part of the book, authors Bagashka and Garoupa talk about Constitutional (and Supreme) Courts in Europe (pp. 186-199). They react to current trends in relevant literature disserting on the politicization of the institutions of what I call “constitutional justice” by admitting that factual conclusions can only be drawn in this context in command of a “deep understanding of contextual determinants.” Most possibly the “local conditions” argument already elaborated by Ginsburg and Garoupa (see: above) reverberates in this thought, which I characterized above as regional and national specificities. But even if this is not the case, to my mind, it is indubitably true that without intimate knowledge of the internal workings of the legal, political and constitutional arrangements and structures that support and sustain these judicial institutions (i.e. the determinants of the context) that are specific to the country (and sometimes the region) no conclusive findings can be produced.

Unfortunately, as it can be seen from many current trends in mainstream constitutional discourse, the time that would be necessary to gain an actually deep understanding of these historical, cultural or even political and constitutional – contextual – determinants (i.e. the European concepts of constitutional identity) of certain legal systems is something of a luxury that seems not to be afforded to and by many. I can only hope that methodologically sound projects like the ECCN that was presented above will help avoid the further increase of such tendencies and push critics not just to “talk the talk”, but also to “walk the walk”.


Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: msulyok@mcc.hu

Márton SULYOK: Is American thinking about unalienable rights alien in Europe? A comment of Professor Bernal’s thoughts

Reading the most recent publication of Professor Carlos Bernal here on Constitutional Discourse about the fundamental features of American Constitutionalism in light of the 2020 Report on the Commission on Unalienable Rights lead me to dust off an old article I wrote back in 2020 when the Report was originally published. Bernal’s thoughts have induced me to look at the Report’s findings in light of European constitutionalism and its most fundamental features as they may be reflected also by the Report in a comparative point of view. I think that there are numerous grounds for cross-fertilization between American and European ways of thinking about constitutionalism and human rights, and as Bernal argues, “dialogue concerning comparative practices is quintessential to improvement.”

In the spirit of this dialogue, I would like to address some of his thoughts on American Constitutionalism through the eyes of a European constitutional scholar, with some references to the current debates in the realm of European constitutionalism. The particulars of the 2020 Report might already be known to many who are familiar with recent developments of US human rights policy, but it was essentially the product of an independent expert commission comprising 11 experts. Its objective: to provide a basic description of US constitutional thought and human rights perceptions down to the level of defining principles in terms of the natural law origins that define American commitments to innate and unalienable rights. Bernal’s post described the seven basic functions of these rights, so I am not going to focus on those, but rather treat the question what the findings of the Report might offer for thinkers regarding the most recent European debates in terms of shifting policies, which was the intended goal of the Report at the outset, setting examples and providing patterns for other countries.

With the gradual evolution of the human rights framework in the Council of Europe and also more recently in the European Union, the fundamental question that has also been at the heart of the Commission’s mandate is: how can the US preserve its leading role in promoting human rights internationally. In thinking about the future of Europe, many facets of the EU’s role as a global actor have come to the surface and with the continuing influence of the Charter of Fundamental Rights, questions of the EU’s fortitude in global relations also come to the foreground in the human rights context. (Early examples to this can be many forms of human rights dialogue – reinforced by the institutional changes of the Lisbon Treaty – used by the EU (and the EEAS) to influence both European and non-European legal systems via this “foreign policy tool” to harmonize human rights approaches.)

If we talk about the Report’s findings, relating them to European debates, we might notice the many points it makes about the role of subsidiarity. The Report seems to connect the universality of human rights with their pluralism, or as we call this in Europe, particularity via subsidiarity as ‘connective tissue’. Subsidiarity as a principle that permeates human rights thinking and regulation appears in the Report as it traces back to the 1948 UDHR, which is emphatic because it focuses on the “holistic understanding of individual rights in community” – as the Report states. According to the Report, the UDHR set forth a minimal set of rights (adopted by almost complete consensus) thus ensuring that the universal principles laid out therein will be – in every case – concretized in particular contexts, and this is the one and only possible and practical way to allow for such particularity/pluralism establishing an actual common understanding of the nature and content of these rights across cultures and nations.

The Report remains virtually silent on the issue of the changing social contract, which can be experienced by a gradual shift in the world’s political communities from the relinquishment of rights (in order to gain other rights) to increasing and overarching rights claims. What the Report does in this context, is that it evaluates “new rights”, which – if left unchecked – might weaken the force of human rights protection by a continuous and unstoppable translation of changing political preferences into newer and never legal categories. (As it will be also emphasized below, in accordance with the Report’s findings, these checks or this control over this ‘translation process’ is to be exercised by the sovereign nations-state.)

Within this context, the Report also looks at the issue when American foreign policy can take into account the possible support for a new human rights claim. Among all relevant conclusions, I would like to emphasize the one that assigns the baseline for this assessment to the originalist approach to the text and interpretation of the UDHR, then looking for possible answers in comparison with American constitutional principles, moral, political and legal tradition, by finally asking the question whether a new rights-claim can be properly inserted into existing systemic structures of human rights.

In the following, the Report also addresses the expansion of meta-juristic (extralegal) standards, looking at claims originating in such organizations that seem to operate with democratic checks and balances, which could not have been subjected to such necessary debate inherent to democratic processes in a nation state that could have solidified their legitimacy. After stating that promoting unalienable rights in other countries might be fruitful in many ways without infringing upon the sovereignty of these nation states, the Report identifies seven challenges in foreign policy action directed human rights promotion. These are: (i) the lack of human rights culture, (ii) failing international organizations, (iii) “autocracy challenge”, (iv) new technologies and rights, (v) migration, (vi) global health, pandemic, (vii) rise of violations by non-state actors.

Contrary to Bernal’s seven points, which gave rise to my writing of this reply, I am not going to treat each of these seven challenges individually, as they each would be worthy of their own dedicated blogposts. However, I would briefly like to say a few words about what the Report characterizes as the decline of “human rights culture”. The Commission talks about the decline of dignity and a “waning of concern” for basic rights. We are aware how many new rights tend to emerge – especially these days – from the many possible “penumbras” of the human rights universe, and how these rights might be frowned upon by many that are in favor of relying on a common constitutional heritage that embodies the foundation of our human rights culture. These many new details (new rights-claims) are what the Report rightly characterizes as being at fault for diverting the attention of many international organizations, not or no longer being able to fulfill their intended roles. (Let us only consider ongoing talks about UN reform, for instance.) In this context the Report also aptly states: “Diplomacy is always to be preferred but is sometimes inadequate.”

To address these challenges the Report compiles a list of 12 conclusions, and from the point of view of current debates on European constitutionalism, I would like to emphasize only four now.

1. According to the Report, the universality of human rights does not mean uniformity by bringing these rights to life. In other words, there is adequate room for particularity/pluralism until it reaches the threshold of cultural relativism. I think this is one of the strongest conclusions of the Commission’s work.

2. The above particularity is transformed into ‘margin of appreciation’, which the nation states are told to have in basing their human rights policies on their respective national traditions, and

3. National sovereignty is a vital issue of ensuring human rights.

4. As for subsidiarity, already addressed above, the Report states – in obvious reliance on the American model of federalism – that decisions need to be brought on the level closest to the life of the given community, and levels of decision-making above these may only intervene in these processes by assisting and not replacing them.

It is a very peculiar feeling for a European constitutional scholar such as myself to be reading these thoughts in the Report made in the USA any by the USA. It is peculiar because the main findings of the Report seem to echo or resonate the key arguments and keywords, slogans of every-day European (and also Hungarian) debates about European constitutionalism. These keywords are: sovereignty, essential state function, subsidiarity, nation states and their margin of appreciation in shaping legal regulation of human rights, and the ability of inter- (and supra)national organizations in holding them back. And all this in a text, which was compiled with the initial objective of serving as an exhaustive commentary of the American constitutional tradition based on one of the most influential human rights documents of the United Nations, describing why and how the United States can and may support human rights efforts of other countries.

To my mind, this just means, that no matter the context of constitutionalism, the basic debates are exactly the same, whether we are in Europe or in America.

Nil novi sub sole – There is nothing new under the sun. And this is why we can and should talk about these issues to improve our constitutional systems through the migration of constitutional ideas and cross-fertilization, despite all of the “caveats” that Professor Bernal calls attention to, in reference to Binyamin Blum’s work, where he talks about the problems of “external imposition” and “emulation” or foreign ideas, patterns or practices.


Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: msulyok@mcc.hu

Carlos BERNAL: The Magnificent Seven. On the Functions of ‘Unalienable Rights’ in American Constitutionalism

The concept of ‘unalienable rights’ became the subject of a new chapter of the “Human Rights Era” in American Constitutionalism when, in July 2019 Secretary of State Michael R. Pompeo announced the creation of a Commission on Unalienable Rights. The Commission was an independent and nonpartisan institution, empowered to provide the US State Department with advice on human rights grounded in the United States’ founding principles and the principles of the 1948 Universal Declaration of Human Rights. In 2020, that group of highly regarded intellectuals and legal scholars published the final report of the work of the Commission. The Report recasts the concept of unalienable rights through a historical and normative analysis of American constitutionalism and its relationship with the Universal Declaration of Human Rights. The Commission’s core goal was to explore the meaning, evolution, and relevance of the concept of unalienable rights. In addition, they aimed at explaining the relationship between unalienable rights and human rights. Interestingly, the Report included a renovated conception of unalienable rights. In this post, I would like to highlight seven functions that the concept of unalienable rights can play in American Constitutionalism. This post explains these “Magnificent Seven” functions in light of comparative constitutional law.

The seven functions are: Unalienable rights (i) position Human Dignity as the highest value of the American Polity; (ii) restate the protection of unalienable rights as the mission that drives the domestic and foreign action of authorities; (iii) open constitutional discourse to practical reason and moral deliberation; (iv) bridge the divide between positive and natural law; (v) open the legal and political system to international human rights law; (vi) open the afore-mentioned system to comparative constitutional law; and (vii) create an avenue for the transnational migration of American ideas on human rights.

Let us have a brief look at these seven fundamental features one-by-one.

First, the concept of ‘unalienable rights’ places human dignity as the highest value of the American polity. This centralized placement is a consequence of the necessary connection between unalienable rights and human dignity. The adequate protection of human dignity cannot be provided without adequate protection of unalienable rights. In this way, unalienable rights are necessary entitlements that a human being ought to enjoy for living a life with dignity.

This general setting connects the concept of unalienable rights to universality as a feature of human rights. As the Report states, unalienable rights are rights (i) inherent to and in all persons; rights that they hold because of their nature or essence – which does not change throughout time or space; and that (ii) are inseparable from our humanity. International or comparative texts, such as the Preamble of the Universal Declaration of Human Rights, Article 1 pf the European Union Charter of Fundamental Rights, the Preamble of the American Convention of Human Rights, Article 1 of the German Basic Law, and the Israeli Basic Law on Human Dignity and Liberty all entrench the very same feature. In this sense, the Report is dissonant with those international sources of law – including national constitutions – that define the essence of human rights.

Second, the Report restates the protection of unalienable rights as the mission that drives the domestic and foreign actions of political authorities. Political authorities always have a constitutional mission to accomplish. For instance, Karl E. Klare associated the mission of authorities under the 1996 South African Constitution with the transformation of the “political and social institutions and power relationships in a democratic, participatory, and egalitarian direction”. In an analogous manner, the mission of American constitutionalism is the protection of unalienable rights. As the Report posits: “the distinctive traditions that nourished the American spirit contributed to the core conviction that government’s primary responsibility was to secure unalienable rights – that is, rights inherent in all persons. The Declaration of Independence proclaims this core conviction, and the Constitution of the United States establishes political institutions to make it a reality”.

Third, the concept of unalienable rights opens constitutional discourse to practical reasoning and moral deliberation. This is a consequence of the indeterminacy of ‘unalienable rights’ concerning, at least, three core ontological questions: (i) What are those rights?; (ii) What is their scope and content?; and (iii) To what extent can political authorities limit them? No one can answer those questions and provide a justification without applying on of resorting to practical and moral arguments. Accordingly, the concept of unalienable rights layers a ground for the deliberation of different political and moral views in a democratic and pluralistic society.

Fourth, the concept of unalienable rights bridges the divide between positive and natural law. The entrenchment of these rights in the amendments to the U.S. Constitution and relevant constitutional jurisprudence implies acknowledging that the positivity of rights (by means of text and precedent) matters. Nevertheless, it also implies opening the possibility of normative critique of political and judicial decisions by using the natural-law theories regarding the origins of these rights. Hence, citizens, organizations of the civil society, and authorities can employ all kinds of natural-rights and critical-rights theories to ground or challenge currently valid and enforceable positive rights. The strength of those critiques depends on the soundness of their justifications within the framework of the different theories of human rights, be it substantive – such as traditional Judeo-Christian theories, libertarian, democratic or welfare theories –, or procedural. Substantively speaking, Bible-based theories usually have a strong power of justification (liberty, Deuteronomy, equality, Colossians, Due Process, the destruction of Sodom and Gomorrah). Similarly, liberty- (Locke, Rawls), democracy- (Jürgen Habermas, Nino) and the social state (Sen, Herman Heller) theories are also influential. Procedurally speaking, the decision should be made about who (i.e. the people of the USA, Congress as the legislature, the Judiciary, certain majorities or minorities) shall resolve the ontological question of what procedural fairness means (to them). Besides the decision about ‘who’, the ‘how’ is also significant. This simultaneously gives rise to a possibility and a peril: overcoming some problems of ‘US exceptionalism’ vs. the possibility of an ‘abusive constitutional review’.

Fifth, the concept of unalienable rights opens the legal and political systems to international human rights law. Answering the three core ontological questions concerning unalienable rights – mentioned above – presuppose answering the epistemic question on how to access to the necessary knowledge for providing a sound response to them. Interlocutors of political and legal deliberation can use international human rights law as evidence for responding to this epistemological challenge. In this sense, the entrenchment of a right in international human rights law is an evidence of the validity of that right as an unalienable right.

Sixth, the concept of unalienable rights opens the legal and political system to comparative constitutional law. Answering those core ontological questions allows for an engagement with foreign practices concerning the recognition and adjudication of constitutional rights through the eyes of comparative constitutional law. The purpose of that engagement, which has historically elicited interesting debates, is developing a reflection on what are the “normatively preferable best practices” concerning rights in a constitutional democracy and where are the limits of legal importing, constitutional borrowing.

Finally, as for the seventh feature, the counterpart of engagement with comparative constitutional law is that the concept of unalienable rights opens an avenue for the transnational migration of American ideas on human rights. In this way, American doctrines and rules concerning the entrenchment, adjudication and protection of unalienable rights can illuminate other jurisdictions that face those never-ending challenges.

There are, however, some caveats to consider and address that might lie ahead in this sense, when ideas and doctrines travel across jurisdictions in an era of constitutional convergence. Authorities can use migrating ideas or doctrines in problem-solving, “supplying data and policy options for confronting common problems”. However, an abuse of migration can lead to “external imposition” of doctrines and values (by foreign countries, promoting change through incentives and threats), and inappropriate “emulation” (copying practices or solutions of “admired” legal systems). In any case, dialogue concerning comparative practices is quintessential to institutional improvements. The concept of unalienable rights, in the way the Commission recast it, is a key to unlock deliberation on the improvement of human rights compliance in American Constitutionalism.


Prof. Carlos Bernal specializes on the interpretation of constitutional rights and comparative constitutional change. After service as a justice of the Colombian Constitutional Court, he became a professor of law at the University of Dayton School of Law in August 2020. In 2021 he was elected as an Inter-American Human Rights Commissioner for the term 2022-2026. He has previously held visiting professorships at the Faculties of Law of the Universities of Paris I (Sorbonne) and X (Nanterre), the University of Copenhagen, the Hebrew University of Jerusalem, and the University of Leon (Spain). He has also held Senior Research Fellowships at the Yale Law School, the Kings’ College Law School, and the Max Plack Institute for Comparative Public Law and International Law (Heidelberg).

Lilla Nóra KISS: Constitutionalism: Universal but Unique?

In the current “rule of law” climate, a book such as the one reviewed hereunder might provide us with some much needed guidance in our arguments over what the concept of constitutionalism is and what it really means in terms of the rule of law. In his 2019 book titled “Revolutionary Constitutions: Charismatic Leadership and the Rule of Law”, Bruce Ackerman ambitiously addressed the topic of constitutionalism by using a unique comparative approach. His comparison focuses on three ideal types (revolutionary outsiders, responsible insiders, elite construction), in which he elaborates in each of them the four developmental phases (from Time One to Time Four) of constitutional development. The scientific uniqueness of the Author’s approach is the applied categorization of constitutional changes and the stages of operation of the post-change systems. Constitutionalism – as the Author defines it – “is part of a larger dynamic”; it should always be discussed. It means different ways of legitimizing power, its “rise reshaped modern notions of authority”. Ackerman asserts that considering the constitutionalism “as a one-size-fits-all ideal” is a mistake. This is one of the most valuable statements of the book in my view, as it turns into relative (or correlative) all values that are supposed to be objective and clear, transparent and without any doubt. If the reader presumed that constitutionalism is a universal value-system, the Author provides convincing arguments to the opposite. Even if the Readers might have some common idea about the fundamentals of constitutionalism, it evolved via very diverse ways under altering conditions all around the world. Literature on constitutionalism generally treats this as an optimal status consisting of democratic values in a rule of law state functioning within a framework having guarantees.

Ackerman treats constitutionalism as a process of change and the post-change-development of the society from a legal and political perspective.

Ackerman explains that the different cultural and historical heritage of states led them to multiple levels and forms of constitutionalism. All constitutions were transformed by social, cultural, and historical dynamics. Different movements (such as revolutions) strengthened the transformation into “powerful engines of legitimation” in the last century. Even if the Author analyzes social, legal, and political changes that arose in the twentieth century, he raises concerns and draws consequences that could be interpreted and monitored today.

The book reveals the Author’s individual vision of historical events determined by the types of constitutional movements and development, by which he established a new categorization system.

The comparative work often refers to the Weberian system (and highlighting the differences of the new approach). The fundamentals that are defined by Max Weber and his anti-positivist followers may still serve as points of reference in putting the social sciences on a rational footing. Ackerman considers his own approach positivist in only one sense: when it comes to defining the nature of a constitutional revolution. The positivist approach distinguishes law from non-law but does not question how a system legitimates itself. This leads to both over- and under-inclusive definitions according to Ackerman. Therefore, the Author also deters from the leading legal positivist perspective besides focusing on past events from a new approach.

I find the book particularly valuable in re-evaluating events that have now become historic in the light of past, recent, and present events. The Author’s assertions have a common ground within each type: these events impact on constitutionalism, its establishment or disestablishment, and its role as a source of authenticity. The interpretation is vital as our past often determines our future, and this also is true for the states. The durability and further development opportunities of mature democracies are results of the constitutional development of states. If the states evolve in terms of their constitutionalism in different ways, their conditions for the rule of law will not be the same either.

Finally, the Author is deviating from the conventional bipolar division of the legal world (common law, continental law) and applies a four-stage dynamic of constitutionalism(Time One: mobilized insurgency, Time Two: constitutional founding, Time Three: succession crisis, Time Four: consolidation). He attempts to rethink comparative law by distinguishing his theory from former and contemporary theoretical viewpoints. His comparison is based on a chronological order of development stages of revolutionary, establishmentarian, and elitist models of constitutionalism, and, on the other hand, on different countries’ case studies. Ackerman uses evaluative, analytical, and comparative methods by which he presents the constitutional development from the early stages of the regime changes until the afterlife of the established legal orders. He does this by guiding the readers to India, South Africa, France, Italy, Poland, Iran, Burma, and Israel. Ackerman finishes his book by a chapter about American exceptionalism.

Lessons for future ‘,influencers’,: pathways for legitimizing and elaborating power (the ,revolutionist,, the ,establishmentarian,, the ,elitist,)

Ackerman distinguishes three types of constitutionalizing processes and examines their development within their respective pathways. By using the model-system, the Author presents in the first part some constitutional revolutions in six chapters, and further elaborations in seven chapters in the second part. The last chapter is an outlook on the US constitutional system.

The first scenario is the revolutionary movement transformation which mobilized masses of outsiders to change the system controlled by the insiders. The Author points out some success stories of this type, such as India, South Africa, France, Italy, Poland, Israel, and Iran. (Even if the Author does not name the country here, I would add Hungary to this list as the development is very similar to the Polish example.) However, these constitutionalizing revolutions are not uniform. According to Ackerman, modern revolutions have two main types: the totalizing variant and the evolutionist. The latter is described as an approach to “propose pragmatic alternations in the status quo”, while the totalizing one intends to reach changes in multiple spheres of life. For revolutions to be successful, he asserts, must meet some conditions under certain circumstances. One of these is self-consciousness (which means that revolutionaries have a common ideology or combine elements of ideological themes: liberal, neoliberal, social democratic, imperial grandeur, egalitarian, etc.). Another inevitable element of a successful revolution is an active movement party. After the successful revolution, the previous and the new regimes are connected by a transition. The new system needs democratic reorganization which requires electoral victories. The new era or regime tends to keep older traditions that recognize the legitimacy of the revolutionary; therefore, the adaptation is unconventional. Revolutionary movements also have a central player: charisma. Ackerman distinguishes between organizational charisma and leadership charisma. The relationship of these types of charisma is complex, sometimes leaders rely on their organizations while in other cases they destroy their movement organizations to build their cults of personality.

The second and third scenarios are soft versions compared to the (sometimes bloody) revolutionary solution for changing the reigning system. In the second (establishmentarian) type, the new legal and political order are built by pragmatic insiders who tend to reach compromise. The insiders invite pacific groups of outsiders into a common brainstorming and by involving some of them, the common sense of the different opposing groups could be reached without a revolution. This solution could be defined as a soft strategic transition. The classic example for this solution is the United Kingdom. The UK had an influence on Australia, Canada, New Zealand.

The third type is very similar to the second, but the change here lacks the “popular uprising” that could be found in the first two models. Ackerman called this type an “elite construction”. In this case, the old system begins to unravel while the society is “relatively passive”. In this situation, a power vacuum emerges that is occupied by the political and social elites who become the engines of the new constitutional order. The Spanish regime-change serves as an example for this type.

The main difference between the first and the latter two scenarios is that the first requires a very active outsider (out of the reigning system) movement, while the others are changing from the inside. The distinguishing feature of type two and three is that in the second case, there is an outsider movement with soft and radical elements (and the model uses the consolidated groups of outsiders to dilute the system), while the third model lacks social movements. The change comes from the top, from the wealthy and educated political and social elite. In the Weberian system, the first scenario could be the root of the charismatic legitimacy, while the second and the third could probably have rational legitimacy. Ackerman’s scheme is lacking the transcendent and the traditional models of legitimacy, but the former is not conceivable in the twentieth century, while the latter usually pertains to kingdoms which became rather formal or ceremonial in the mentioned period. The previous century put an end to several charismatic (often dictatorial) leaders whose ‘systems’ became replaced by well-estimated rational and legitimate regimes.

The Author summarizes that all types face different problems arising from the “constitutionalization of charisma” and the “bureaucratization of charisma” over time that is emphasizing the legal and political dynamics. For example, the revolutionary legitimacy fades over time as the revolutionary generation dies off. Their heritage is fading and will not sustain the system forever. In all types, the political authority moves toward “the normalization of revolutionary politics”. A significant part of this normalization process in the first type is the judiciary, which first develops the new system’s “early constitutional doctrines in less provocative settings”. Later, the “jurists are aware of the fragility” of the doctrines. Lastly, jurists are “using the early judgements with growing self-confidence as authoritative precedents to resolve hot-button disputes between rival politicians”. As the second and third types lack revolutionary movements, the maintenance of the new order is relying on the elections. The party that triumphs in the elections is entitled to enact legislation and the judiciary cannot strike it down by referring to its noncompliance with the former systems’ norms. The judiciary therefore plays a significant but secondary role compared to the first type. According to the Author, the “judges may play a constructive role in type two by returning problematic statutes for reconsideration”. Ackerman also expresses that while the judges may play a constructive role, they “must recognize the parliament’s democratic authority to demand that the courts faithfully implement the new legislation”. This is an interesting perspective if we consider that judicial decisions shall be reasoned, objective and defendable. In type two, Ackerman defines the establishment / disestablishment as a problem. In this system, the lack of establishment is often replaced by referendums that are – as Ackerman writes – a “far deeper threat to the establishment of tradition”.

The Author critically points out that “the referenda open a way for demagogic appeals to ordinary citizens (who lack the resources of time and knowledge for fateful choices)”. He mentioned the Brexit as an example for this. The elite construction model faces challenges of authenticity. The obvious question is raised by the Author: how do the elitists generate support from the general population? The Spanish constitution provoked crisis in Catalonia and in the Basque Country for decades. The Germans created their post-war constitution (the Basic Law) in 1949 under military conditions. The naming refers to the Germans belief that their Charter did not deserve the status of a constitution. Therefore, they asserted a Final Article that expresses that a “truly authentic constitution could only be achieved when East Germans could free themselves from Soviet control” and when Germany is reunified. The authenticity problems arose in 1989 again when the Berlin Wall fell. The German Reunification Treaty enabled the German Democratic Republic (GDR) to become part of the Federal Republic of Germany (FRG) by signing the agreement. The authenticity aspect of the Treaty is that it extinguished the existence of “East Germany” by the signature of that agreement. Due to the active role of the German Federal Constitutional Court, the Basic Law became a central engine for the German constitutional and political identity. The Author demonstrates the role of the judiciary and the constitutional courts in the constitutionalizing process in which their decisions support the new system’s establishment.

Case studies: different countries, similar challenges?

Ackerman starts to present the first type of constitutionalizing programs by guiding the readers to India. The country (which is considered to be the largest constitutional democracy in the world) faces poverty, illiteracy, and a caste system. (The latter – from an egalitarian perspective – cannot be considered as democratic. However, “being democratic” from a Western perspective would presume a one-size-fits-all kind of solution for constitutionalism that cannot be achieved on such a diverse globe as ours.) India must handle several other challenges arising from its various ethnic and linguistic diversity. Ackerman raised the question of how India could sustain its constitutional order under these circumstances. The answer is the Indian Supreme Court and its role in defending the nation’s constitutional legacy and identity. The activity of the courts – which operate on a common law basis – became significant in the country’s succession crises of the 1970s.

South Africa has several parallels to India in the way of forging revolutionary charisma into constitutional authority. However, India applied a “declining empire scenario” while South Africa used a “revolutionary bargaining scenario”. South Africa struggles now with its succession crises according to the Author.

France and Italy are similar in the sense of their constitution building efforts after the Second World War. Both countries faced resistance movements of Communist, Socialist, and Christian democratic ideologies. The French Commander (later President), Charles de Gaulle allowed himself to challenge the resistance by the power of the military. He became the nation’s first President, and to date, the semi-presidential system is considered to be a relative success-story – according to the Author – as thirty-five countries already have adopted the Gaullist model.

In Italy, the Constitutional Court emerged from the succession crisis to gain political recognition as the guardian of the nation’s legal principles defined during the revolution. In Poland, the movement behind the regime change was the largest Solidarity agitation that led to the adoption of a semi-presidential design. This was evaluated as “less successful” by Ackerman. The reason behind the failure of the semi-presidential system in Poland was the competitive approach of Solidarity group leaders (in favor of a parliamentary and of a presidential system) instead of cooperation. This led to a post-Soviet leadership that was consolidated enough to reach consensus and adopt the new (elitist and not real revolutionary) constitution for Poland. The failure of the semi-presidential system therefore triggered the constitutionalizing of the charisma (both leadership and organizational).

The governments of Iran and Israel were both results of revolutions. The Zionist government was committed by the Israeli Declaration of Independence to promulgate the constitution, the liberal social democratic leaders (such as Ben-Gurion) passed this obligation to the movement party (Mapai) which became the constituent assembly. In Iran, the Supreme Religious Leader took advantage of the moment to establish the constitution on the basis of popular sovereignty. The adoption of the French style semi-presidential system (that did not bring luck to the Polish) was a successful attempt in Iran. Hassan Habibi drafted the constitution and used the French system as a source of inspiration. In Burma, military brutality followed the call for the new beginning in 1989. Aung San Suu Kyi was arrested until the movement forced the military to give her a seat in the government.

Finally, the Author dedicated a chapter to examine American Exceptionalism in order to enlighten the country’s constitutional crisis in the age of President Trump. To guide the reader in American constitutionalism, Ackerman starts by introducing Exceptionalism in the understanding of Justices Scalia and Thomas, and the cosmopolitanism represented by Justices Breyer and Kennedy among others. Ackerman calls for a rooted cosmopolitanism – “an approach that recognizes America’s exceptional constitutional culture” – that generates new insights. The Author analyzes US constitutional development with continuous comparison between the formerly presented countries’ revolutionary changes and establishments. In the end, Ackerman talks about the consequences of Roosevelt’s repudiation to constitutionalizing the charisma in the 1930s on the recent events of the Trump presidency.

Concluding remarks

In “Revolutionary Constitutions”, Ackerman approaches constitutionalism and several historical events that formed the current systems from a unique, 21st century direction. Helping readers understand the different movements and the succession of the regime-changes in various countries, Ackerman enables the comparison of today’s systems with the former ones.

. In doing so, he leads the readers into today’s America and attempts (in my view successfully) to interpret current processes on the basis of past events. According to John Bernall, “a nation who do not know its own history deserve to live it again“. I believe that knowing a bit about other nations’ struggles for their values also is important. Ackerman’s book helped me understand that even if we lived on different continents and used different legal systems, we probably would face similar challenges. A good example for this is our health crises arising from the COVID-19. Our countries treat the pandemic in various ways, but we still have mutual points and opportunities to cooperate. The health crisis caused constitutional turbulences within the EU as it has no competence in health matters, but the pandemic – of course – did not stop at the borders of the states. The Member States locked down their borders, introduced extraordinary rules for daily operations in several institutions, restricted the free movement of people and goods in the Internal Market which caused several economic and human rights issues. Several (rather liberal) Member States used the COVID-crisis to raise and force the idea of a European Health Union complemented by a Social Europe, while other (rather conservative) Member States denied deepening the integration in that way. COVID-19 affected the constitutional dialogue related to the future of the European Union and the level of cooperation among the Member States as well. Even if the EU is not a state, it struggles with relevant issues of constitutional identity, and so do the Member States – sometimes on a collision course. Ackerman’s comparison of certain European states was informative for me as a European citizen. Probably, in the next edition, the Author could present more countries. The analysis of Scandinavian and Baltic states could add a great value to this comparative approach in any upcoming work.

I particularly appreciated the short outlook to the brief cultural diagnosis of the European Union (EU). Even if the EU is not a state, it faces constitutional challenges. On the one hand, the EU has its own elite constitutional legitimacy, while, on the other hand, its Member States emerge from different legitimation pathways that cause collision when it comes to crisis management or decision-making affecting sovereignty. The Author points out that the leading European nations – in which group he considers including the Member States with the largest populations (Germany, Spain, France, Italy, Poland and [at the time of the publishing of the book Great Britain]) – came along in different constitutional ways, therefore they have trouble in finding common grounds for a more perfect Union. I guess, this book could serve as a guide for mutual understanding of the Member States on matters of constitutionalism.

To sum up, I conclude that the book has provided insight to the past through a lens of pathways to create a better understanding in a unique and useful way. Even if the content goes back to historical ages, the effects of those revolutionary events and constitutional transformations can still be felt today. Therefore, we should always draw on the past to have better conclusions for the future.


Lilla Nóra KISS is a postdoctoral visiting scholar at Antonin Scalia Law School, George Mason University, Virginia. Lilla participates in the Hungary Foundation’s Liberty Bridge Program and conducts research in social media regulation and regulatory approaches. Formerly, Lilla was a senior counselor on EU legal affairs at the Ministry of Justice and she has been a researcher and lecturer at the University of Miskolc (Hungary), Institute of European and International Law for five years, where she taught European Union law. Lilla obtained her Ph.D. degree in 2019. The topic of the dissertation is the legal issues of the withdrawal of a Member State from the EU.

Her current research interests cover the legal dimensions of Brexit, the interpretation of the European Way of Life, and the perspectives towards social media regulation in the USA and in Europe.

Lee J. STRANG: A Comparison of the Historical Constitution and Originalism

Appearances May Be Deceiving

I. Introduction

As an American legal scholar whose primary research is on constitutional interpretation and its originalist school, the concept of the Historical Constitution in Hungary’s Fundamental Law offered a fascinating comparative opportunity. The Historical Constitution and Originalism at first blush appear similar in origin and purpose. However, as one digs deeper, one sees that Originalism and the Historical Constitution are significantly different. In this Essay, after briefly describing both concepts, I explain their apparent similarities and substantive differences. I close with some reflections on why they are different.

II. The Historical Constitution and Originalism: Appearances May Be Deceiving

The Historical Constitution is a concept found in the Hungarian legal system. Its most definitive articulation is in the 2011 Fundamental Law of Hungary, where Article R(3) states: “The provisions of the Fundamental Law shall be interpreted in accordance with . . . the achievements of our historic constitution.”,[1] The 2011 Hungarian Fundamental Law was the first new post-communist constitution because the existing written constitution was the 1949 communist-inspired document that was heavily amended during and after 1989. Prior to 1949, Hungary operated without a permanent written constitution under the accumulated laws from the Kingdom’s foundation in 895. This customary law system was similar to the United Kingdom’s.

Article R(3) was placed in the Fundamental Law as a response to an interpretative dilemma faced by the National Assembly. Normally, national constitutions are interpreted in light of their contexts, and an important aspect of context is a constitution’s preceding legal system. For instance, in the United States, the prior constitution (the Articles of Confederation) is employed to help interpret the current Constitution’s meaning.,[2] In Hungary, however, there were two problems.,[3] First, the 2011 Fundamental Law drafters believed that the 1949 communist-inspired constitution was a foreign, unjust legal regime—it was an historic aberration—that should not influence the Fundamental Law’s meaning.,[4]Second, the 2011 Fundamental Law drafters believed that Hungary’s long-standing customary legal system should be used to interpret the Fundamental Law,,[5] but what parts? Prior to 1949, Hungary’s legal system was a customary legal system that included legal documents, rules of law, governmental institutions, and authoritative traditions, but how to sift through over 1000 years and identify those facets of the customary system that should influence the 2011 Fundamental Law’s meaning?

The Historical Constitution is a relatively new concept in Hungarian constitutional jurisprudence. There is modest caselaw on the subject,[6] and scholars dispute its meaning and how to employ it. The most important tasks for the Hungarian legal system to enable it to follow Article R(3)’s injunction are to specify what “the achievements” are and, once identified, how they will operate in interpretation.,[7]

Originalism is the theory of constitutional interpretation in the United States (and elsewhere) that the text’s public meaning, when it was ratified, is the Constitution’s authoritative meaning.,[8] This means that, for example, the meaning of “religion” in the First Amendment is its public meaning in 1791, and that officers today should follow that meaning in their official duties. More technically, Originalism has two key components: the fixation thesis, and the constraint principle.,[9] The first posits that the Constitution’s meaning is fixed at ratification, and the second is that this constitutional meaning should constrain officers and their official actions. Today, Originalism has grown into a sophisticated theory and is likely the most influential theory of interpretation in the United States with a working majority of Supreme Court justices,,[10] many lower federal and state court judges, and one of the major political parties describing themselves as originalist.

On their face, Originalism and the Historical Constitution appear to be similar in a number of important ways. Both direct interpreters to look for constitutional meaning in the past.,[11] Originalism does so by instructing interpreters to look at information contemporary with ratification, and the Historical Constitution points to the pre-1949 Hungarian legal system’s achievements. Second, both the Historic Constitution and Originalism purport to do so out of respect for their respective nations’ current, actually operating legal systems. Originalists claim that the Constitution’s original meaning is its current authoritative meaning, no matter how it might be obscured by contrary practices, such as nonoriginalist precedent. The Hungarian National Assembly inserted the Historical Constitution Clause in Article R(3) to tie the 2011 Fundamental Law’s meaning to (what it stated was) the authentic constitutional history of Hungary, and not the “foreign” “communist constitution of 1949.”,[12] Third and sociologically, both tie their respective constitutions to the nations’ foundational origin and history. In the American context, Originalism binds current constitutional meaning to the unique and widely-respected American Founding, Framing, and Ratification. The Historical Constitution Clause similarly binds the Fundamental Law to the deep, one-thousand year Hungarian legal tradition.

Up to this point, it appears that Originalism and the Historical Constitution perform similar roles in American and Hungarian constitutional interpretation. But that is misleading. Originalism and the Historical Constitution are substantively different, and in many ways.

Though Originalism and the Historical Constitution are both theories of meaning of current constitutions, they approach their tasks differently. Originalism identifies the text’s meaning as the public meaning of the same text at the time of its ratification. By contrast, the Historical Constitution does not weigh in on that issue: it does not say whether the meaning of the Fundamental Law’s text is its current meaning, its original public meaning, or something else entirely. Instead, it is narrower than Originalism: it says only that the Fundamental Law’s meaning—however one understands or derives it—must be “in accord[]” with the “achievements” of the past legal system.,[13]

Article R(3) is itself evidence of this difference. If the linguistic practices in 2011 would have directed interpreters to look to the pre-1949 legal system for aid interpreting the 2011 Fundamental Law, then the Article is unnecessary. If the linguistic practices in 2011 would not have directed interpreters to look to historical achievements, then Article R(3) provides an additional input to interpretation that has the potential to change the Fundamental Law’s meaning from its 2011 public meaning. The key point is that the object of Originalism—what the text’s meaning is—is not addressed by the Historical Constitution Clause, and instead it addresses a separate input to interpretation.

Originalism requires officers to identify and follow the text’s fixed public meaning from when it was ratified. Once an interpreter has uncovered the original meaning, then the interpreter must apply that very same original meaning.,[14] The Historical Constitution seems to work differently. Article R(3) appears to order interpreters to interpret the Fundamental Law “in accordance with” the Historical Constitution. This separates it from the Fundamental Law and the former is an input into the latter’s meaning, suggesting that the latter has its own independent integrity. One way to get at this is to consider what would happen if Article R(3) did not exist. The Fundamental Law would still have a meaning that would be identified and followed by government officers, and that meaning would be different from the meaning of the actual Fundamental Law with its Article R(3).

Originalism and the Historical Constitution also aim at different interpretative targets. Originalism directs interpreters to find the text’s public meaning at the time of ratification, while the Historical Constitution directs interpreters to past “achievements” for meaning. These are different objects. The Historic Constitution’s “achievements” appear to include a variety of phenomena, none of which is linguistic meaning. A recent summary of achievements identified by the Constitutional Court included “judicial independence, the right to legal remedy, judicial review of administrative acts, freedom of the press, disciplinary liability of judges, religious freedom, and local self-government.”,[15] These achievements are important; they are not linguistic meaning.

Third, the Historical Constitution and Originalism operate differently. The text’s public meaning is the product of its conventional semantic meaning, in public context. There are a variety of sources for these various components of the original meaning, including contemporary practices. These practices, however, operate within Originalism as evidence for or against different public meanings. By contrast, the Historic Constitution’s achievements appear to be “paradigm cases.”,[16] A paradigm case operates in a number of ways in constitutional interpretation. Most importantly, it operates as a basis from which to analogize to other propositions. Second and relatedly, a paradigm case operates as a limit beyond which constitutional interpretation may not operate.,[17] The key point is that paradigm cases are not public meaning.

There may be other ways in which the Historical Constitution and Originalism are substantively different, but these suffice to show that appearances are deceiving.

III. Reflections on the Impact of Context

But this raises the question: why are Originalism and the Historical Constitution so different given their apparent similarities? There are likely many reasons for the difference, and I will focus on one that arose from my analysis.

Originalism works (the way it does) in the United States because the Constitution arose out of a unique lawmaking process that had and continues to have archtectonic status in the American legal system. The product of this singular event is the “supreme Law of the Land,”,[18] and Originalism’s insight is that this law’s meaning is a product of that unique lawmaking event.,[19]

The Historical Constitution Clause is a constitutional response to a legal system that did not join together a unique founding moment to a unique constitution. Instead, the Hungarian legal system had an English-style constitution that grew and developed over a thousand years. This legal system produced not one written constitution as an “achievement” but a large number of achievements. Moreover, given the nature of the legal system, there is disagreement and unclarity about what the achievements are.

This circumstance alone, I don’t think, would preclude use of Originalism to interpret the Fundamental Law because, in principle, the text’s public meaning in 2011 could be its authoritative meaning. Instead, the 2011 Fundamental Law does not enjoy the same privileged place in the Hungarian legal system that the U.S. Constitution holds in the American legal system. In particular, the 2011 Fundamental Law is recent, and it does not hold (at least not yet) the same untouchable status in the Hungarian legal system as does the U.S. Constitution. That role in the Hungarian legal system is played by the ‘small-c’ Hungarian constitution that includes the Fundamental Law coupled to the Historical Constitution’s achievements. And for this reason, the Historical Constitution is valuable to the Fundamental Law.

IV. Conclusion

Comparative constitutional analysis provides a means for scholars from different countries to learn about other countries’ constitutions and, in doing so, to learn more about their own constitutions. In this brief Essay, my goal was to show that learning about the Hungarian concept of the Historical Constitution has helped me better understand my American Constitution, and I hope this Essay may shed some additional light for my Hungarian and European colleagues on their own constitutions as well.

,[1] The Fundamental Law of Hungary, art. R(3) (2011).
,[2] For example, the current Constitution’s Commerce Clause is correctly seen as a response to the lack of a national power to regulate interstate commerce, and its attendant problems. Erwin Chemerinsky, Constitutional Law: Principles and Policies 464 (6th ed. 2019).
,[3] See Katalin Egresi, Role of the Holy Crown Doctrine and ‘Historical Constitution’ in the Hungarian Constitutionalism, 1 Studia Juridica et Politica Jaurinensis 10, 15-17 (2014) (describing the Historical Constitution as a means to “return to the constitutional situation of the past”).
,[4] The Fundamental Law of Hungary, National Avowal (2011).
,[5] Id.
,[6] See Miklos Konczol & Istvan Kevevari, History and Interpretation in the Fundamental Law of Hungary, 5 Euro. Papers, 161, 170 (2020) (summarizing the case law).
,[7] See Ferenc Horcher, Is the Historical Constitution of Hungary Still a Living Tradition? A Proposal for Reinterpretation 89, in The Concept of Constitution in the History of Political Thought (Gornisiewicz & Szlachta eds., 2017) (describing the problems of definition of the Historic Constitution).
,[8] Lee J. Strang, Originalism’s Promise: A Natural Law Account of the American Constitution 27-30 (2019).
,[9] The original articulations of these commitments are found at Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1 (2015); Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice, available at ,https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2940215 (visited June 28, 2021).
,[10] In some interpretative contexts but certainly not all.
,[11] See Gabor Schweitzer, Fundamental Law–Cardinal Law–Historical Constitution: The Case of Hungary Since 2011, 1 J. Eur. Hist. of Law 124 (2013) (describing the “historicizing elements” of the Fundamental Law); see also Balazs Schanda, Hungary’s Christian Culture: A Subject of Constitutional Protection, 23 Studia z Prawa Wyznaniowego 55 (2020) (arguing that the Fundamental Law’s protection of religious liberty and Christian culture is a manifestation of the Fundamental Law’s commitment to protect Hungary’s cultural identity).
,[12] The Fundamental Law of Hungary, National Avowal (2011).
,[13] The Fundamental Law of Hungary, art. R(3) (2011).
,[14] With the caveat that many originalists argue that constitutional meaning is mediated by constitutional precedent. See Lee J. Strang, Originalism’s Promise: A Natural Law Account of the American Constitution 91-141 (2019).
,[15] Miklos Konczol & Istvan Kevevari, History and Interpretation in the Fundamental Law of Hungary, 5 Euro. Papers, 161, 170 (2020).
,[16] Compare Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government 178-95 (2001) (explaining the author’s paradigm case method).
,[17] See J.M. Balkin & Sanford Levinson, Comment, The Canons of Constitutional Law, 111 Harv. L. Rev. 963 (1998) (describing canons of constitutional law cases); Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011) (describing those cases that American legal arguments must reject); see also Steven J. Burton, An Introduction to Law and Legal Reasoning (3d ed. 2006) (explaining common law legal reasoning).
,[18] U.S. Const., art. VI, § 2.
,[19] See William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U.L. Rev. 1455, 1457 (2019) (“Officially, we treat the Constitution as a piece of enacted law that was adopted a long time ago; whatever law it made back then remains the law, subject to various de jure alterations or amendments made since.”).


LEE J. STRANG, J.D., LL.M.: Professor Strang joined the University of Toledo College of Law in 2008, was granted tenure in 2010, and was named John W. Stoepler Professor of Law & Values in 2015. Before that, he was a visiting Professor at Michigan State University College of Law. A graduate of the University of Iowa, where he was Articles Editor of the Iowa Law Review and Order of the Coif, Professor Strang also holds an LL.M. degree from Harvard Law School. During the fall, 2015, Professor Strang was a visiting scholar at the Georgetown Center for the Constitution. In 2016, he was appointed to the Ohio Advisory Committee of the U.S. Commission on Civil Rights. The University of Toledo awarded Professor Strang its Outstanding Faculty Research and Scholarship Award in 2017. During the 2018-2019 academic year, Professor Strang was a visiting fellow at the James Madison Program at Princeton University. Professor Strang received The University of Toledo’s Inclusive Excellence Award in 2021 for his contributions to the University’s diversity, and President Postel conferred on Professor Strang the 2021 UToledo Creative and Scholarly Activity Award.

András KOLTAY: Is Free Speech Part of Christian Culture?

On the Two Recent ‘Blasphemy’ Decisions of the Hungarian Constitutional Court

In early February, the Hungarian Constitutional Court reached a decision in two cases, both requiring the consideration of the balance between freedom of expression and the protection of religious beliefs. In these cases, the trial courts that had ruled earlier had applied a specific provision of the Civil Code. This rule [2:54. § (5)] allows certain protected societal groups, such as religious communities, to bring a civil action by any member of that community in their own name, rather than on behalf of the community, based on the infringement of their own personal rights if the community they belong to is damaged by a seriously offensive opinion. This norm thus envisages the civil law prohibition of (or personality rights protection from) hate speech, the implementation of which was ultimately due to the practical inapplicability of the hate speech prohibition in criminal law (which is one of the more complex and less uplifting episodes of Hungarian free speech law).

Turning to the facts of the two cases, the former concerns the front cover of the Christmas 2014 issue of the weekly current affairs magazine HVG , which bore a title doubling as a pun, ‘Nagy Harácsony’. That is a play on words almost impossible to translate into English directly, (perhaps akin to “Season’s Fleecings”) marking both the approach of Christmas Day and something like ‘plundering’ or ‘ripping off’, presumably by the persons depicted on the cover. The cover featured portraits of the faces of leading political figures superimposed onto a digitally modified version of a 17th-century Dutch painting. The cover image was adapted from a painting by Gerard von Honthorst, entitled Adoration of the Shepherds that originally depicted the Virgin Mary and the new-born Jesus, in the company of shepherds in a nativity scene. The contemporary caricature seems to have referred to the pursuit of material goods by the government political actors included in the picture.

The other case dates back to 2016, when a demonstration was organised in front of the Polish Embassy in Budapest against the newly introduced Polish abortion regulation, in which one of the participants, wearing a bishop’s robe, made a call to those present namely ‘Take the Holy Communion!’, and then, imitating the priestly act, placed white pills on the tongues of those in front of him from a bag clearly labelled ‘abortion pill’, accompanied by the statement ‘Body of Christ’ (referring to the act of Holy Communion).

The opinions expressed in the two cases cannot be considered blasphemy (that is, denigration of a religion) in the traditional sense, but may undoubtedly have offended the feelings of the Christian believers concerned, especially Catholics. The Constitutional Court had to take a position on which constitutional aspects the courts had to consider in relation to the issue under consideration and whether they had fulfilled this obligation. In other words, they did not examine the correctness of court judgments but whether the judgments had been passed after careful consideration of the appropriate constitutional aspects.

In the case of the HVG front cover, the Curia (that is, the Supreme Court of Hungary) rejected the claim and found that the content in question was protected by freedom of speech and did not violate the personality rights of Christian believers. The Constitutional Court has now upheld the validity of the set of criteria underlying this decision and accordingly dismissed the constitutional complaint seeking the annulment of the court ruling. The panel also viewed the message of the front cover as a political opinion rather than one critical of religion. It ruled that the content was not intended to offend Christians, and that the use of a system of religious symbols for political expression was not inherently illegal. It should be noted, of course, that believers may have been offended regardless of the nature of the content, which is primarily a political opinion, but it does not necessarily follow that that political opinion can be limited.

The Constitutional Court was of the opinion that the performance during the protest against regulating abortion caused more serious harm to the religious community; and annulled the Curia’s decision which had assumed that this performance belonged to the protected sphere of free speech. According to the decision, although the acts under review appeared to be harsh critiques of the Catholic Church, they could have harmed not only those members of the church who were actively involved in public life, but also those who did not participate in public debates at all. In this case, the relationship between the conduct under investigation and the harm suffered by believers was more direct than in the other case. On one important issue, the Constitutional Court’s reasoning rests on shaky grounds: it criticises the trial courts for not examining whether the performance could have been considered an opinion or a discussion of a public matter at all, and this suggestion implicitly includes the possibility of a negative answer. In my view, however, a thorough examination of the existence of the nature of an opinion must in any event answer those questions in the affirmative – but from which it does not follow that those opinions cannot be limited.

The reception of the two decisions was ambivalent: more precisely, few were completely satisfied with them. Those who profess a broad interpretation of freedom of speech criticized the Constitutional Court for setting excessive limits on that right, and those who fear that freedom of religion may suffer from the excesses of free speech protection blamed the Constitutional Court for not protecting Christian believers sufficiently.

Judging the strength of conflicting arguments in the context of Hungarian free speech jurisprudence and constitutional doctrines is not easy. In addition to having empathy for Christian believers who were offended by the paper’s front cover, it is worth recalling that freedom of expression is one of the most important values of democratic legal systems, one that may also protect offensive opinions and, of course, is also enjoyed by those who oppose churches and religion or who simply do not want to show respect to them. One of the decisions also notes that the obvious response to offensive or hurtful speech would not primarily be the initiation of litigation, but more speech and so more intense public debates. An important achievement in the three decades of a politically independent Hungary is that after the era of Communism, individual communities including churches, have been able to enter public life, have their voices heard, take part in debates, and take positions on important issues such as abortion. The communist state authorities first sought to abolish churches as such and then, recognising the impossibility of this, to completely exile religion to the private sphere. It is instructive that the institutions of the European Union and the whole Zeitgeist dominating European public life also seek the latter, making it difficult for churches to take part in public life, and questioning the culture-shaping traditions of Christianity. It could be argued that, if the church or its followers exercise their rights to enter the public sphere, this may prevent them from being sidelined in this way – but if they do, they must also bear the consequences that are detrimental to them. Churches regularly take a stand on public issues, and rightly so. By the same token, if one takes on a role in public life, one must also tolerate hurtful, offensive and unfounded criticism. However, if it also adversely affects the rights of those believers who stay away from public life, then restricting freedom of speech is no longer impermissible. The legal assessment of the performance presented at the demonstration shows the limits of the obligation to tolerate criticism. The image on the magazine cover did not do as much damage compared to it and can be considered instead of critique of public figures, and one which is not particularly extreme compared to the usual extremities of today’s public discourse. For the latter, religious content is only a weapon and not the target itself.

The decision of the Constitutional Court on the HVG front cover must surely have been preceded by sharp debates in the panel, as indicated by the fact that five constitutional judges attached dissenting opinions to the majority opinion, and would have considered it correct to annul the Curia’s decision. Several of these dissents referred to the ‘National Avowal’ (the preamble of the Fundamental Law of Hungary), which mentions the role of Christianity in Hungarian history. However, the recognition of this role, which is ultimately a fact that is fundamental to the development of the Hungarian state, and the protection of critical opinions that violate religious sensitivity are by no means incompatible. As Judge Balázs Schanda notes in his concurring opinion, the front cover image itself provides evidence that Hungary has a Christian culture, because otherwise the content of the image would be incomprehensible. The Judge touches on an important point that can be considered further: a strong Christian culture cannot be undermined by the expression of a few tasteless or offensive opinions. However, the human dignity of vulnerable believers who do not take part in public debates is a value to be protected as both Christian and secular. The precise delineation of boundaries in the specific cases is in good hands with the courts and the Constitutional Court.

András KOLTAY professor of law (National University of Public Service, Budapest)