On 20 June 2011, the European Commission for Democracy through Law (also known as the Venice Commission) said that the new Hungarian Constitution puts “the principle of democracy itself at risk.” Democracy was endangered, the Commission said, because the constitutional framework regulated a number of issues customarily left to be determined by the results of elections in so much detail that it would unduly tie the hands of future governments. In addition, the restrictions on the powers of the Constitutional Court and the creation of a new and powerful Budgetary Council further caused concern for the preservation of democratic institutions. The fact that important institutions like the judiciary were under-specified in the Constitution provided additional reasons to worry about the shape of the new government under this Constitution.
The Venice Commission slammed Hungary for failing to ensure that rights in the new Constitution were protected in a manner consistent with international law and for leaving open the possibility that rights could be eroded by “special acts” that were not yet fully defined in the Constitution. The new Constitution also has the potential to disrupt international relations by claiming responsibility for all Hungarians wherever they might live. The Commission also criticized the process through which the Constitution was adopted for failing to be inclusive and transparent, leading to concern about the extent to which the Constitution reflects a consensus of the society.
The Opinion of the Venice Commission took into account an amicus opinion written by a set of Hungarian constitutional experts, including University of Budapest professor Gábor Halmai, who will be a visiting researcher at Princeton in 2011-2012, and Professor Andrew Arato of the New School, who was a commentator on the April LAPA panel on the new Hungarian Constitution. Their opinion can be found here. (PDF)
The Venice Commission had been asked by the Monitoring Committee of the European Parliamentary Assembly to review the new Constitution for compatibility with European principles of human rights, democracy and the rule of law. The final version of the Hungarian Constitution in English, which is the version that the Commission examined, can be found here (PDF).
On 25 April 2011, Hungary's president is scheduled to sign the country's new constitution. This constitution, wanted by one political party, drafted by one political party and ratified by one political party, goes a long way toward turning Hungary into a one-party state.
The new constitution packs and slashes the Constitutional Court, interferes with the normally functioning judiciary, brings formerly independent state offices under the control of the government in power, and entrenches particular individuals beholden to this one party in office through multiple election cycles. By completely repudiating the prior constitutional law of the country, this radical new constitution proposes to start over, rewriting all of the major framework laws that have governed Hungary since it entered the world of constitutional democracies in 1989 and probably nullifying the decisions of the Constitutional Court that have created a strong jurisprudence of rights. Even assuming that another party could come to power again under the new rules of the game, any new government will encounter multiple choke points in the system occupied by allies of the one political party that drafted the text. Hungary's new constitution aims at a radical reconstruction of Hungarian politics.
With the adoption of this new constitution, is Hungary still a liberal and constitutional democracy? That is the question this panel will address. Jan-Werner Müller will discuss the rise of the Right in Hungary and the political context for constitutional rewriting; Kim Lane Scheppele will review the main features of the new constitution and the way the new structure changes the prior constitutional framework; Erika Kiss will examine the literary references of the preamble, which invokes 19th and early 20th century styles of nationalist writing, and Andrew Arato will discuss what can be done to reverse the damage that this new constitution does to Hungarian constitutional democracy. Moderating the panel is Stanley N. Katz.
The panelists are:
Andrew Arato is Dorothy Hart Hirshon Professor of Political and Social Theory in the department of sociology at The New School University. Born in 1944 in Budapest, he received his PhD in history from the University of Chicago. He is best known for his book Civil Society and Political Theory, coauthored with Jean L. Cohen. He is also known for his work on critical theory, evidenced in two books focused on constitutional drafting. He is the author of Civil Society, Constitution, and Legitimacy (2000) on constitution-making with special reference to Hungary and Constitution Making Under Occupation: The Politics of Imposed Revolution in Iraq (2009). He is co-editor of the journal Constellations.
Erika Kiss, Princeton University, is an associate research scholar in the University Center for Human Values and the founding director of its Film Forum. She has studied history and literature in Hungary (B.A., M.A.) and comparative literature at Harvard University (M.A., Ph.D.). She was a member of the Department of Medieval and Modern Languages at the University of Oxford and a fellow of Balliol College, Oxford. Kiss is the Founding Dean of Germany's first English-language liberal arts college, the European College of Liberal Arts (ECLA) in Berlin, and also served for a year as its CEO. Her research and teaching interests include the connection between the civic and the aesthetic arts of rhetoric, poetics, dramaturgy (literary and cinematic), and the philosophy of education. Her article "The Triptych of Liberal Education" (Philosophy of Education Yearbook, 2006) introduces a threefold - rather than the traditional dialectic - conception of higher learning. Currently, she is working on Oakeshott's concept of conversation and problems of scholarly norms of cinematic citations.
Jan-Werner Müller is Associate Professor of Politics at Princeton, where he also directs the Project in the History of Political Thought. He has been a fellow at the Collegium Budapest and at Central European University, Budapest. His publications include Constitutional Patriotism (2007) and Contesting Democracy: Political Ideas in Twentieth-Century Europe (2011). Recent public affairs commentary includes "Schlimmer als Haider", in Die Zeit and "The Hungarian Tragedy" in Dissent.
Kim Lane Scheppele is Laurance S. Rockefeller Professor of Sociology and Public Affairs in the Woodrow Wilson School and in the University Center for Human Values, in addition to being Director of the Program in Law and Public Affairs at Princeton. From 1994-1998, she lived in Budapest, where she was a researcher at the Hungarian Constitutional Court and inaugural director of the Program on Gender and Culture at Central European University. A specialist in comparative constitutional law, Scheppele's many publications about Hungary include articles in US and international law reviews as well as in the Hungarian journals Világosság and Kritika. A sample includes "Guardian of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe." (U of Pennsylvania Law Review), "A Realpolitik Defense of Social Rights" (U of Texas Law Review) and "Constitutional Negotiations: Political Contexts of Judicial Activism in Post-Soviet Europe" (International Sociology). Scheppele was a consultant to the constitutional drafting process in Hungary in 2005-2006 and has been the recipient of three grants from the (US) National Science Foundation for residential fieldwork in Hungary and (later) Russia. In both places, she examined the relationship between professional and popular constitutionalism.
Stanley N. Katz is President Emeritus of the American Council of Learned Societies, the national humanities organization in the United States. Mr. Katz graduated magna cum laude from Harvard University in 1955 with a major in English History and Literature. He was trained in British and American history at Harvard (PhD, 1961), where he also attended Law School in 1969-70. His recent research focuses upon the relationship of civil society and constitutionalism to democracy, and upon the relationship of the United States to the international human rights regime. He is the Editor in Chief of the recently published Oxford International Encyclopedia of Legal History, and the Editor of the Oliver Wendell Holmes Devise History of the United States Supreme Court. He also writes about higher education policy, and publishes a blog for the Chronicle of Higher Education. Formerly Class of 1921 Bicentennial Professor of the History of American Law and Liberty at Princeton University, Katz is a specialist on American legal and constitutional history, and on philanthropy and non-profit institutions. The author and editor of numerous books and articles, Mr. Katz has served as President of the Organization of American Historians and the American Society for Legal History and as Vice President of the Research Division of the American Historical Association. He is a member of the Board of Trustees of the Newberry Library and numerous other institutions. He also currently serves as Chair of the American Council of Learned Societies/Social Science Research Council Working Group on Cuba. Katz is a member of the New Jersey Council for the Humanities, the American Antiquarian Society, the American Philosophical Society; a Fellow of the American Society for Legal History, the American Academy of Arts and Sciences, and the Society of American Historians; and a Corresponding Member of the Massachusetts Historical Society. He received the annual Fellows Award from Phi Beta Kappa in 2010 and the National Humanities Medal (awarded by Pres. Obama) in 2011. He has honorary degrees from several universities.