Constitutional Democracy

2. Summary and a glance to the future

2. Summary and a glance to the future 2.1. THESES In 1989, at the outset of the third republic, the legal as well as the political community in Hungary were thinking about the new democratic institutions in terms of the traditional conception of parliamentary Rechtstaat. This conception allows only for a very limited room for constitutional review. In this view, the Constitutional Court must establish only the straightforward violations of the constitution, those that might not in good faith be questioned. If the Court strikes down a law by relying on such an interpretation that divides the public, then in this conception it inevitably violates the principle of the separation of powers; it usurps either the constituent or the legislative powers (or both) of the elected popular representatives . The main objective of the last two studies of this volume was to show the narrowness of the traditional conception and to help move on to another conception, one I referred to as parliamentary constitutionalism. I have tried to show that the same considerations that justify bringing parliamentary sovereignty under the rule of law in fact justify constitutional self-restraint as well. They make it necessary for the community to tie the hand of the Parliament with constitutional provisions, and to appoint a separate body to safeguard the enforcement of constitutional constraints. Furthermore, I have tried to show that this body is authorized to pass constitutional judgments even in those cases where it cannot avoid making such decisions that might be objected to in good faith, that is, that may be objected to even after seriously considering the evidence in favor of these decisions. In cases when what is at stake is whether some legal provision violates the moral interests of individuals that are protected by the constitution —the principles of treating human persons—the Court in fact not only might, but also must, make such decisions. In cases where the stakes are related to the constitutional rules of governmental organization—the rules of competence and of the separation of powers—the need for decisions that 304 ⁄ The Legacy of the First Hungarian Constitutional Court generate controversy depends on how serious the conflict is judged to be, i.e. on judicial consideration. The judges can act in a very broad sphere while performing their duty, without on that account intervening in the activity of the legislature without democratic authorization. Chapter 2 of the previous study has shown that the substantive interpretation of the constitution is not equivalent with the amendment of the text of the constitution—thus, it does not violate the principle of popular sovereignty. The main task of Chapter 3 was to show that neither does striking down legislation resting on a substantive constitutional interpretation come into conflict with the principle of popular sovereignty. I began to outline a theory of parliamentary constitutionalism in Chapter 2 (Sections 2.1 and 2.11), and then articulated it in Chapter 3 (Sections 3.1 to 3.5). This theory views the constitution and judicial review as one of the democratic procedures , i.e. as means by which the elected representatives make it very difficult for themselves to pass decisions on especially important issues—but only to better realize their own goals. But the broadness of the framework does not imply that the interpretive competence of the Court has no boundaries. I have tried to introduce and justify three important constraints. First, substantive reading must not slide into critical reading; in other words, an interpretation that is not bound by the text of the constitution or even presumes a revision of the text might not be regarded as an interpretation of the constitution (this consideration was articulated in Section 2.9 of the previous study). Second, as the Court articulates the underlying principles of constitutional provisions while proceeding from case to case, it must act so that each of its decisions determines future decisions only to the smallest degree that is necessary. The fact that a case requires substantive interpretation does not in itself represent a reason for deferring the decision, but the Court must choose that justification of the correct decision among the available alternatives that has the least far-reaching implications (Section 2.8). Third, the Court must proceed with special care in cases that might not be substantively assessed without making such a decision that requires political responsibility, because the primary duty of the Court demands that the judges be exempt from political responsibility (see...