Constitution –
Constitutionalism – Protecting
the Constitution
1. The Constitution
2. Constitutionalism – Rule of
Law
3. Protecting the Constitution
1. The Constitution
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describing the terms of power; the fears deriving from
the previous regimes (András Sajó: Limiting
Government); the moral sail of the state (Ronald
Dworkin)
in dictatorships: only a paper
the notion of constitution in material sense: the
position of the state and its citizens – in this sense every
state has a constitution
in formal sense: one single written document, the basic
law (no constitution: UK, Israel, Saudi Arabia)
 historical
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background:
the ‘politea’ of Aristotle – the governance of a
city state, the form of government
Cicero’s ‘constitutio’ – the basic norms of a
community
the contract theory: the original source of the
power is the contract between the people and
the ruler (Ulpianus) – breach of contract ~
right to resistance, killing the oppressor
(Magna Charta, Golden Bull; Thomas
Acquinas)
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the modern constitution – the first form of the
modern state: absolute monarchy in the 17th
century → concentration of power → puritan
revolution → constitutional monarchy ~
constitutional government
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the development of the American and French
constitutionalism in the 18th century
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the legal character of the constitution:
supremacy and its protection by complicated
amendment procedures – dissolution (Belgian,
Dutch, Norwegian), referendum (US,
Switzerland, Australia, France) amendment,
eternity clauses (Germany)
2. Constitutionalism – Rule of Law
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constitutionalism answers the question whether
the given solution of state administration and
regulation prevents the unreasonable limitation
on the freedom, the organized dictatorship, i.e.
the principles of constitutionalism = a system of
limitations where the freedom of the citizens
prevails (Sajó)
 its legitimizing basis is the constitution, which is
acknowledged both by the state institutions and
the citizens
 The
1789 French Declaration, Art. 16: it is
not a state governed by rule of law, where
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human rights are not guaranteed,
there is no separation of powers
 constitutionalism
= beyond the material
(substantive requirements ~ not
necessarily by a written const., 1936/1949)
and the formal notion of const. (also
without a written constitution, England)
constitutional (rule of law) state (limited
government) = where the different legal
principles, institutions and procedures
prevent the arbitrary activities of the state
authorities (e.g. U.S. Const. 14th
Amendment: no one can be deprived of his
life, liberty or property without a due
process)
 one
of the principles: separation of the
different branches (legislative,
executive, judiciary)
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historically two forms:
- separation of powers: constitutional
monarchy, presidential
(US – not the
strongest)
in principle complete separation; their
creation is completely independent too;
5th French republic: half-presidential
(dual executive)
- division of powers: parlamentarism –
less significant personal separation; no
branch is able to act without the other(s)
19th cent.: beside the king a government
elected by the parliament → doubled
executive branch;
asymmetry in the creation: the executive
power is created by the Parl.; with a vote of
confidence the Parl. may overthrow the
government, but often the Parl. may be
dissolved
Two types of parliamentarism (on the
basis of the relationship between the
legislation and execution):
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majority (Westminsterian): two-party system >
stable government (UK, Australia, New
Zealand),
consensual : multi-party system, coalition
governments (continental Europe)
3. Protecting the Constitution
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in wide sense: different state institutions (e.g.
Finland: Parliament)
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in narrower sense: judiciary (constitutional
adjudication) – ordinary or separate courts
(constitutional courts)
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against constitutional courts:
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English revolution: absolute parliamentary sovereignty → does
not exist anymore
French revolution: sovereignty of the people (Rousseau) → only
preliminary review
 models
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of constitutional adjudication:
decentralized: „American” or „diffuse” model –
US. Marbury v. Madison → Argentina,
Australia, Canada, India, Japan,
Scandinavian countries, Switzerland
centralized: „Austrian” or „European” model –
Germany, Italy, Spain, Portugal, Eastern
Europe
Hungarian Constitutional
Developments after 1989
1.
The 1949 Constitution
2.
„Constitutional Revolution”
Hungarian Constitutional
Developments after 1989
1. The 1949 Constitution
 The 1936 Soviet model:
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unity of the state power, but division of labor
→ 4 types of institutions
citizens’ rights without guarantees
Sólyom-Committee in 2002: before 1989
Hungary was not a rule of law state
2. „Constitutional Revolution”
 instead of a new constitution
comprehensive amendment: Opposition
and National Roundtable (mutual fears)
 Hungarian parliamentarism: pact (1990)
– stable government (constructive vote of
confidence, reducing the numbers of acts
requiring 2/3 majority); „middle-weak”
president
 strong constitutional adjudication
attempts for adopting a new constitution:
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„new reformers” (1990-94)
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restorers (1996)
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current chances