Why throw a constitution out of the window instead of making it work?

Abstract

Professors András Sajó and Andrew Arato have pointed out a crucial problem: how can constitutionalism be restored if the unified opposition wins the Hungarian general election in Spring 2022? The topic is of crucial relevance regarding that even if the opposition wins, it probably cannot achieve a two-thirds majority in parliament which is required to amend the current constitution or adopt a new one. The seven questions raised by the two professors are based on the presumption that, on the one hand, the current Hungarian Basic Law lacks proper democratic legitimacy and that it is inconsistent on the other. From this starting point, they concentrate on the options of how a new constitution could be adopted without a two-thirds-majority in parliament. I argue that the above presumptions are not entirely correct. First, “extra-constitutional constitution making” will not lead us out of the rule of law crisis but is a danger to the rule of law itself. Second, the main shortcoming of constitutionalism in Hungary is not caused by the text of the constitution but by the electorate. In addition to both of these points, I will also briefly sketch what the European Union should (not) do.