The Illiberal Abuse of Constitutional Courts in Europe

Abstract

Legal constitutionalism – Political constitutionalism – Emergence of illiberal constitutionalism as a tertium genus – Examination of constitutional courts under three illiberal governments: Poland, Hungary, and Turkey – Illiberal governments’ strategies to seize control of constitutional courts – Illiberal governments’ aim to secure leverage over constitutional judges and restrict the powers of review of the court – Constitutional courts under illiberal rule invert the traditional functions that were assigned to them under the original Kelsenian approach – Instead of a check on power, illiberal constitutional courts become a device to circumvent constitutional constraints and concentrate power in the hands of the ruling actors.