Constitutional Identity Research Articles

Unmasking Authoritarian Constitutional Imaginary

Abstract This paper examines how the constitutional imaginary was transformed in Hungary after 2010, during the period of the right-wing populist government. While after the fall of the communist regime at the turn of the 1980s and 1990s there was a consensus that a Western-style democracy and the rule of law should be established in Hungary, and the democratic transition took place accordingly, 2010 was a turning point in the Hungarian constitutional development. The former right-wing opposition won a parliamentary supermajority in the general elections that year, which created an opportunity for the new government to unilaterally transform the country’s constitutional structure and at the same time introduce a new constitutional narrative. The paper analyzes this new kind of constitutional imaginary discussing its three main symbols, constitutional identity, the revival of the historical constitution, and the Christian culture. The study argues that these elements and other ideological features of the new constitutional order do not form a coherent system, nor did they create a new form of constitutionalism, but their primary goal has been to consolidate and strengthen the government’s power and make it exclusive. The Hungarian example shows how the constitutional imaginary has been instrumentalized during an authoritarian transition.

Imaginary of Post-National European Constitutionalism: Lessons from Central European Philosophy, Sociology and Jurisprudence

Abstract The article focuses on the paradoxes of constitutional identity and the impact of constitutional sovereignty on post-sovereign European society and politics. It uses post-1989 constitutional and social transformations in Central European countries, the rise of constitutional populism and identitarian politics to argue that the nation state continues to operate through the principle of constitutional sovereignty even in the EU’s post-sovereign constitutional constellation. It thus proves that democratic politics is identity politics even in post-sovereign and post-national politics and the EU’s supranational organisation has to respond to the constitutional and political identity question through its own structures and semantics. The central argument, therefore, revisits classic notions of social and constitutional theory such as the distinctions between community and society, ethnos and demos or authenticity and alienation to outline the persistence of nationalism and its varieties in contemporary constitutional populism in Central Europe. While recognising that the nation state continues to be the only organisation to successfully combine rational efficiency and communal bonds constituted by the national identity, the EU’s response to the challenges of constitutional populism and nationalism needs to enhance its democratic legitimation and constitutionally integrate the imaginaries of European public spheres and demoicracy to promote an anti-explosive alternative to the explosive nationalist imaginaries.

Radicalised Conservatism in the Hungarian Constitution: An Analysis of Justifications for Rule of Law Backsliding

Introduction: the Scruton-Fidesz connection – Literature: Hungary’s rule of law backsliding and the Hungarian constitution – Methods: analysing ideological justifications and contemporary conservatism – Findings: the traditional family as the base for the existence of the nation – Individual rights’ dependency on communal obligations – Constitutional originalism and limitations on judicial review – History as a moral guide and historical revisionism – An exclusionary Hungarian constitutional identity – Analysis: traditionalist conservative values in the Hungarian Constitution and their manipulation – The radicalisation of conservatism – The struggle over the centre-right, and its implications on the future of democracy

The role of cinema in Young Turk propaganda during the second constitutional era (1908–1913)

ABSTRACT This article examines the use of cinema by the Young Turk Movement, which played a significant role in transforming the Ottoman Empire from an absolutist regime into a constitutional monarchy in 1908. Upon gaining power, the Young Turks faced various external and internal political challenges, such as imperialist ambitions over Ottoman territory, Balkan states' efforts to reclaim lost lands, and separatist movements within the empire. This article explores how they used cinema to promote their political agenda and address these challenges. It argues that cinema was employed not only to display power and spread propaganda but also to project an image of governance aligned with constitutional ideals.

Constitutional Overhaul, the War in Gaza, and the Puzzle of Civic Mobilization in Israel

Abstract Much has been written on the constitutional overhaul in Israel, and the attendant constitutional crisis in the first nine months of 2023. Since October 7, however, with the breakout of the Israel-Gaza war, the overhaul was seemingly shelved. This Article seeks to connect both events, by comparing the legal-political response to the overhaul with the legal-political response to the war. It asks why, given the intensity of the protest movement generated by the overhaul, there was a dearth of protest activity after the war, even though both events implicated similar values, namely the rule of law and individual rights, championed by the protest movement. I argue that a central reason for the disparity cannot only be explained by the dynamics of war but also due to the tensions and complexities inherent in Israel’s self-professed constitutional identity as a Jewish and democratic state. In particular, I argue that anti-overhaul protests appealed to liberal universalist values to garner bipartisan support, with the effect of bypassing substantive issues such as the occupation of the Palestinian Territories and discrimination faced by Israeli Palestinians. This explains the lack of Arab participation in the protests, as many perceived them to be an internal Jewish Affair. Thus, when post-war repressive measures mostly affected Israeli Palestinians, the protest movement failed to rally in their support. Although anti-overhaul protests could have brought about greater liberal consolidation in Israel, the relative lack of post-war mobilization casts lingering doubts on the possibility of long-term consolidation of liberal values in Israel. Attempts to depoliticize the protests, while perhaps successful in warding off the overhaul, and though impressive on their own, have likely failed in instilling deeper, more resilient, liberal values in Israel.

Constitutional Identity Between Riga and Strasbourg: The Courts’ Dialogue Developing Latvian Constitutional Law

The article provides insight into the recent development of the concept of constitutional identity in the Latvian legal system. The authors mainly focus on the dialogue between the national highest courts, especially the Constitutional Court, and the European Court of Human Rights and the Court of Justice of the European Union, concerning the concept of constitutional identity. In recent years, both supranational courts have dealt with cases involving various aspects of Latvia’s constitutional identity and the respected constitutional values, norms, and principles that define it, as well as the relevant jurisprudence of the national highest courts. The case study of Latvia demonstrates that it is possible to guarantee a harmonious approach to implementing constitutional identity in light of the state’s international obligations as a member of the European Union and the Convention on Human Rights.

From the economic to the pandemic crisis: The impact upon the EU constitutional architecture—Introduction to the Symposium

Abstract The European Union has evolved significantly, shaped by crises as foreseen by Jean Monnet, who predicted that Europe would be “forged in crises.” Over recent decades, it has faced challenges such as the euro crisis, the COVID-19 pandemic, Brexit, rule-of-law backsliding, and ongoing geopolitical conflicts. These crises have tested and transformed the European Union’s constitutional framework, prompting institutional reforms and innovations in governance without necessarily revising the Treaties. This Symposium explores the European Union’s constitutional evolution through the lens of crises. Key reforms include the reinforcement of budgetary discipline during the euro crisis and the shift toward a stimulus-based approach in response to the pandemic, culminating in the NextGenerationEU framework. Contributors analyze the model of economic governance that has evolved from the convergence of both the economic and pandemic crises, the changing role of regions, the judiciary’s evolving oversight functions and its limits, and rule of law conditionality as a distinctive form of governance. The Symposium will delve into the post-crisis governance landscape of the European Union from a constitutional perspective, focusing on the structural adjustments implemented and their enduring impact. Despite these changes, the European Union has demonstrated resilience and adaptability, forging new governance structures that reflect its deepening constitutional identity. In the end, the Symposium provides a comprehensive examination of these shifts, highlighting how the European Union continues to integrate and innovate in response to ongoing challenges.

On the Structure of Constitutional Legal Consciousness in the Aspeсt of Constitutional Identity and Constitutional Distinctiveness

Problem statement. Modern constitutional law requires its comprehension both from the perspective of sustainable social practice and its psychological cognition. In this sense, constitutional legal consciousness becomes an instrument of cognition of constitutional and legal realities, develops and changes them. On the basis of this constitution, constitutional and legal doctrines are formed aimed at strengthening legal principles. The main purpose of such a process lies in the Constitution of the Russian Federation, which guarantees the rights and freedoms of citizens, reflects the values of the state and contributes to their development. At the same time, constitutional legal consciousness as an ideal phenomenon, not directly observed, but an integral part of the modern Russian legal mentality, has a rather complex internal structure. It is presented through legal knowledge, ideas and views that are formed within the framework of constitutional ideology and constitutional psychology. These two elements are closely intertwined, forming a common structure of constitutional legal consciousness. But the study of the structure of constitutional legal consciousness would be incomplete without taking into account mo­dern transformations, the approval of new constitutional ideas and values. It is about the meaning of constitutional identity and constitutional distinctiveness. In modern science, these categories are still under study. Aims and objectives of the research: to analyze and generalize scientific views, approaches to the definition of constitutional psychology and constitutional ideology as constituent elements of constitutional legal consciousness, to develop their own proposals for defining their concepts, to analyze the meaning and role of constitutional identity and constitutional identity in the context of the development of constitutional legal consciousness. Methods: in the process of working on the article, general scientific (analysis, synthesis, generalization) and special (study of law enforcement practice) methods of cognition were used. Results: the concepts of constitutional legal consciousness, constitutional ideology and constitutional psychology are formulated. Some aspects of the importance of the development of constitutional legal consciousness in society are outlined. It is stated that for the further development of constitutional and legal science, it is necessary to stimulate further research on the development of constitutional legal consciousness in the context of a modern rule of law state.

Federal fractals: review of Stephen Tierney, The Federal Contract

Stephen Tierney’s new book presents an exciting new theory of federal constitutionalism. His core argument is that each federal constitution is founded on a ‘federal contract’, which is an agreement among a plurality of territorial communities to form a federal political community while retaining their distinct constitutional identity as constituent states. This offers an alternative to the ‘social contact’ of liberal political theory in which the isolated individual is the sole basic unit of the constitutional order. The explanatory power of Tierney’s thesis is impressive. He shows how the idea of the federal contract can be manifested in many varied forms but in a manner that recognises the constitutional status and autonomy of the constituent states, formed into an association under which they agree to act cooperatively with each other and with the federation as a whole, under a mutual commitment of reciprocity that underwrites inter-governmental cooperation and solidarity, while also maintaining inter-governmental distinctiveness and autonomy. Under the auspices of this simple and elegant idea, Tierney offers an account of federal constitutionalism that resembles the fractal patterns of mathematical geometry insofar as each federal system reflects a particular federating logic that drives its initial creation and ongoing evolution. This opens up a promising area of further research involving an ever-closer examination of federal systems to see whether the fractal-like patterns he has identified continue to be apparent at progressively higher levels of resolution.

The European Union – from an economic Union to a union based on common values. But what about the constitutional identities of the member states?

Book review: COMMON VALUES AND CONSTITUTIONAL IDENTITIES – Can Separate Gears Be Synchronized? edited by András Zs. Varga and Lilla Berkes, CEA Publishing, Miskolc-Budapest, 2023, Studies of the Central European Professors’ Network – editor-in-chief of the series – János Ede Szilágyi

Ideological Constitutionalism

A renewed interest in the concept of ideology is evident in recent constitutional theory. Ideology has featured prominently not only in restatements of traditional Marxist positions and attempted retrievals of the material conception of the constitution, but also in democratic critiques of liberal constitutionalism and theories of constitutional identity. The intention of this article is twofold. Firstly, the article defends the explanatory power of a conception of constitutional ideology that is centred on political domination and the ‘universalisation’ of contingent power relations, rather than more diffuse notions like the symbolic construction of reality or worldviews. Secondly, the article considers distinctive ideological dimensions of modern constitutionalism. An analysis of these dimensions, I contend, confirms modern constitutionalism's strong ideological ‘potential’.

Иллюстрации некоторых конституционных особенностей Российской Федерации в контексте исследования конституционной идентичности

The author of the article has made an attempt to highlight and illustrate the constitutional features of the Russian Federation, which contribute to deepening the understanding of one of the most important components of constitutional identity — constitutional originality, the understanding of which in the future can help in finding answers to questions about the future path of development of the modern domestic state.

ADAPTING THE CONSTITUTIONAL IDENTITY OF THE STATE TO MODERN CHALLENGES: ANALYSIS AND PERSPECTIVES

This article examines the process of adapting the constitutional identity of states to modern challenges. It considers the evolution of the concept of identity and its significance within the constitutional fabric of the state. The paper focuses on the mechanisms and causes of changes in constitutional identity, which can be either deliberate or unforeseen, and the role of political dynamics and external pressures in this process. The authors analyze a number of constitutional reforms in different countries over the past five years, highlighting the diversity of both the goals and the content of these reforms. The article also explores the dual nature of identity transformation in the context of international relations and the importance of preserving the authenticity of constitutional identity while adapting to new challenges.

Friends or Foes: Is Unamendability the Answer to Democratic Backsliding?

Unamendability is often viewed as a ‘lock on the door’ that can keep enemies of constitutional democracy out, at least for a time. Unsurprisingly, it has also been invoked as a potential bulwark democratic backsliding. While it may not entirely thwart authoritarian populist takeovers, unamendability – including in the form of basic structure doctrines or constitutional identity review – is said to at least delay them, buy some time for defenders of constitutional democracy to resist, and clearly signal to the outside world (including supranational institutions such as the European Union) that foul play is afoot. This article questions such easy assumptions about the nature and operation of unamendability, both in general and in an authoritarian populist context in particular. It argues, based on the examples of India and Hungary, that unamendability is a tool either too ineffective to be deployed against authoritarian populists in power, even while courts may not have been fully captured, or one they are just as comfortable wielding as their opponents. For example, the Indian Supreme Court’s hitherto celebrated basic structure doctrine has been useless in the face of the court’s refusal to hear or decide key challenges against the government. Additionally, drawing on the Hungarian case, the article shows the dark side of constitutional identity review includes captured courts defending majoritarianism and exclusion in the name of a national identity perceived as under attack. In other words, doctrines of unamendability may quickly and subversively turn into instruments of entrenching the very authoritarian populist projects proponents of such doctrines abhor.

Baltic States’ EU membership: discursive search for (and failure to obtain) farewell from Russia

ABSTRACT The article assesses the EU membership of Estonia, Latvia and Lithuania with a special focus on their attempts, already as EU members to change their relations with Russia, which remains their ‘significant Other’. We employ the discourse-historical analysis and focus on the evolution of the Baltic strategic discourse towards three themes, particularly contested by Russia, including the domestic interethnic issues, politics of memory and the elements of the constitutional identities of three Baltic States. First, with references to the EU context, we introduce several landmark cases of the Baltic confrontation with Russia which occurred prior to 2014 (‘pre-Crimea’). Then we analyze the corpus of official documents from three Baltic states (2011 - December 2023), including their government programs, national security strategies, Constitutions and programs of their EU Council Presidencies (2013 Lithuania, 2015 Latvia and 2017 Estonia). Discourse analysis reveals how cautionary attitudes from the Baltic States are linked with their historical experiences of the Soviet occupation and with their prudent assessment of the EU as a security guarantee. We conclude that 20 years after the Baltic EU accession, their relations went through the full circle and since ‘post-Crimea’ downgraded from pragmatic partnership to animosity which makes Baltic-Russian reconciliation ontologically impossible.

JUDICIAL REVIEW: EXPLORING THE ROLE OF JUDICIARY IN CONSTITUTIONAL INTERPRETATIONS

This research paper offers a thorough analysis of the Indian Constitution's judicial review system. The study examines the historical development, scope, and constraints of judicial review in India through a thorough examination of key constitutional clauses, significant court rulings, and academic commentary. It assesses the judiciary's contribution to maintaining fundamental rights, guaranteeing the separation of powers, and defending constitutional ideals critically. The purpose of the study is to shed light on the special characteristics and difficulties of judicial review within the Indian constitutional framework by drawing comparisons with judicial review systems in other jurisdictions.

SOCIO-ECONOMIC CONDITIONS AND SOCIAL ACCEPTANCE OF TRANSGENDER COMMUNITY: AN EMPIRICAL STUDY

Recent years have seen a significant increase in the prominence and attention given to human rights discussions and debates. Moreover, a lot of world leaders continue to yearn for the successful and complete implementation of their vision of a just society. In a variety of settings, a number of academicians, philosophers, and leaders have disputed this idealistic notion of creating a just society. They argue that a number of stratifying factors, such as caste, class, economic status, and family values, have long caused division in our society. With the passage of time, this stratified society changed and started fining the minority that was less fortunate more and more. Similarly, a sizable segment of the populace referred to as the transgender community has been perceived as a disadvantaged facet of society as a result of various forms of social stratification and certain inherent genetic deficiencies. The transgender community has been unable to exercise even the most basic constitutional rights that are granted to every person under the countrys constitution because of ignorance and inferiority complex. Members of the community have also been socially and economically excluded from society and have been unable to access government aid programs due to the gap created by the discrimination inside the community. Furthermore, transgender people are inadvertently reduced to the status of second-class citizens in a society guided by the constitutional ideals of liberty, equality, and fraternity because of a number of laws in the Indian context that only define Indian society in terms of male or female. The current study aims to comprehend the causes of the deprivations placed on transgender people in order to implement and formulate welfare measures specifically for the transgender community and enable its members to access constitutional and statutory mechanisms without facing any discrimination. It is imperative that we create practical measures immediately in order to lessen marginalization and make the transgender populations general socioeconomic growth a reality.

Constitutions as Mediums of Collective Identities

Constitutions as Mediums of Collective Identities

The effects of Constitutional Court Judgments in the context of EU integration: the case of Romania as an EU Member State

This contribution analyses the conflict between the Constitutional Court of Romania (the ‘CCR’) and the Court of Justice of the European Union (the ‘CJEU’) from the perspective of the affirmation of constitutional identity by the Constitutional Court of Romania as a national independent court, to the detriment of the principle of primacy of EU law enshrined in the settled case-law of the European Court of Justice. The following analysis focuses on two aspects of this conflict. The first involves consideration of the use of the concept of constitutional identity by the Constitutional Court of Romania as a tool to limit the principle of primacy of EU law, with the main argument being that the Constitutional Court is the supreme national institution the task of which is to ensure the supremacy of the Romanian Constitution on Romanian territory even insofar as concerns EU law and the case-law of the Court of Justice of the European Union. The second aspect focused upon in this analysis consists of the effects of the conflict between the two jurisdictions - the constitutional and the European Union – as seen in the constitutional decisions adopted by the Constitutional Court of Romania.

THE ROLE OF JUDICIAL ACTIVISM IN SHAPING CONSTITUTIONAL LAW OF INDIA

Judicial activism has an active and transformational role in shaping Indias constitutional law. Researcher discusses the essential features of this effect, highlighting the judiciarys proactive application and interpretation of the Constitution in light of changing societal requirements. Judicial activism in India has broadened the scope of fundamental rights, supported public interest litigation (PIL), tackled environmental issues, promoted social justice and protected human rights. The court has served as an important check on the jurisdiction of other arms of government, establishing a balance of power and upholding constitutional ideals. While judicial activism has played an important role in changing the Constitution to modern concerns, it has also been criticized for possible abuse. This paper captures the diverse influence of judicial activism, demonstrating its significance as a driving force in transforming Indias constitutional landscape. Doctrinal study or secondary data will be used in this paper. KEY WORD: - Judicial Activism, Judicial Restraint, Constitution, Transparence, Judiciary