Parchment Barriers: The Constitution as Law

Backsliding member states – sustaining the authority of the constitution – constitutional courts – court packing – legality – voiding of legal acts – removal of participant from the constitution

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And therefore this is another Errour of Aristotles Politiques, that in a wel ordered Common-wealth, not Men should govern, but the Laws. What man, that has his naturall Senses, though he can neither write nor read, does not find himself governed by them he fears, and beleeves can kill or hurt him when he obeyeth not? or that beleeves the Law can hurt him; that is, Words, and Paper, without the Hands, and Swords of men? ¹

Giving a voice to the constitution

How do we sustain the authority of the constitution within a constitutional system?

It seems that in Europe the preferred answer to this question is to allocate the task to a court of law, notably, some constitutional tribunal. But not all courts strike us as capable guardians of the constitution. Whether or not they are faithful depositories of legality depends, in our view, on their composition and their relation to other branches. They may turn out to be staffed with political partisans loyal to a rogue ‘backsliding’ government. This explains why the Constitutional Tribunal in Poland had to learn from the European Court of Human Rights that owing to an irregularity in the appointment process a bench adjudicating a certain case did not pass the test of a ‘tribunal established by law’ according to Article 6(1) ECHR. ² As is well known, the matter concerned the presence of Judge Mariusz Muszyński who had been appointed by President Andrzej Duda after Duda had refused to swear judges into office selected by the Sejm shortly before the new election. The group of judicial appointees of whom the said judge was a part were elected by the new Sejm and sworn into office by the President within hours afterwards. Polish authorities reacted to the ruling of the European Court of Human Rights in a way that suggested it would have no impact at all – effectively ‘cancelling’ it. The President of the Constitutional Tribunal announced that the judgment will have no effect on the Polish justice system. The Tribunal itself ruled a few weeks later that the judgment was non-existent in Polish law. ³

Several factors mediate the authority of those we regard as capable sentinels of constitutional legality. The ability to supply legal expertise is one thing, although it may not even be necessary. ⁴ Of at least equal importance, however, is a high degree of political independence or diversity of backgrounds. ⁵ Alternatively put, we expect members of a body that adjudicates constitutional questions to reflect, jointly and severally, by virtue of the appointment process, a wide variety of political perspectives. We would find it disturbing, to say the least, if such a body were ‘packed’ by one political party alone. ⁶

This suggests that there are constitutional constraints that need to be observed before tribunals can attain the legitimate and, indeed, legal authority to say what the law is. These constraints are, within our region, manifest in European human rights law (Article 6 ECHR) and derivative of EU law (notably Article 19[1] TEU and Article 47 Charter of Fundamental Rights). ⁷ They are fleshed out by the European Court of Human Rights and the European Court of Justice, respectively. ⁸ We would, however, cringe if the members of these international guardian institutions turned out to be also merely the obedient agents of the Ziobros of this world. ⁹ Whom would we then trust to embody and to enact the authoritative voice of constitutional law?

Obviously, the credibility of judicial expositions of constitutional law depends on conditions that are logically prior to adjudication. While the judiciary may on certain occasions be responsible for securing these conditions, the appointment of judges depends on interactions among branches of government that stand behind – or possibly beyond – the constitution qua legal construct because they facilitate its proper legal construction.

The field of politics

We encounter the core concerning this ‘behind’ and ‘beyond’ in its most powerful form in a chapter of The Federalist Papers, namely in Federalist No. 51, where Madison presents his own idea of how the authority of law can be sustained in a constitutional setting. ¹⁰ Those persuaded by Hamilton’s defence of judicial review in Federalist No. 78 may be a little puzzled by the fact that Madison dismisses the idea that the power to sustain constitutional law ought to be put into the hand of one particular institution, that is, some ‘least dangerous’ branch. ¹¹ For Madison, no ‘Council of Censors’, which was to be found in the Constitution of Pennsylvania, ¹² not even frequent appeals to the people were a reliable means to insulate the authority of law from the maelstrom of passionate political controversy. ¹³ Just as, in his view, the Council of Censors would end up being composed of the politicians it was supposed to control, appeals to the people would systematically either run the risk of harvesting the echo of successful demagoguery or simply not elicit much attention from the electorate. But what is, then, Madison’s alternative vision for sustaining the constitution as law? ¹⁴

Constitutional law, from Madison’s perspective, allocates limited powers and permissions. What the constitution thereby establishes is a field to be inhabited by ambitious people who are least interested in playing by the rules. ¹⁵ They want to move things, they want to enrich themselves, and most likely they want to do both. If they are told that there are legal rules to observe, they either shrug their shoulders or proceed to bend those rules into a shape that is to their liking.

The question is, therefore, how the authority of the constitution as law can be sustained in a context in which all agents seek ascendancy over others and where everyone must hence watch out for always looming encroachments.

The outside on the inside

The ordinary legal answer to this question is that members of some institution located inside the constitutional system can be entrusted with sustaining its rules by speaking as though they were located outside of its eminently political context. Schmitt’s rather absurd suggestion aside – that a popularly elected president qua equivalent of a monarchical pouvoir neutre could infuse the system with a quasi-celestial view from nowhere or above ¹⁶ – we are indeed likely to profess belief in the desirability of disinterested and neutral judicial expositions of constitutional law. In our more tender moments, we are disposed to grant that a court is such an external voice, i.e. an umpire, a referee, an impartial adjudicator (if not even a ‘spectator’ ¹⁷ ).

From a Madisonian perspective, one may concede that the judiciary is possibly the ‘least dangerous’ branch, but at the same time insist that it is, nonetheless, dangerous. Stanley Fish reminded us in his somewhat shrewd discussion of H.L.A. Hart’s The Concept of Law that we not infrequently encounter something inside the law that is effectively equivalent to extralegal power-play and jostling. ¹⁸ We call it ‘interpretation’. In particular under current conditions, we must hasten to add to it the cunning ruses with which ‘illiberal democrats’ ¹⁹ have most recently twisted the language of law in order to clothe their schemes in constitutional garb. If this is done systematically, the relevant practice can grow into what András Sajó calls ‘ruling by cheating’. ²⁰ Among the repertoire of this type of governance are the systematic circumvention of provisions, the exploitation of loopholes or surprising assertions of constitutional commitments that are inconsistent with, for example, international or supranational obligations. ²¹ In the terms of Stanley Fish, ‘ruling by cheating’ is nothing short of force wearing the vestiges of law. A constitutional court, for example, that is exclusively composed of loyal supporters of the government can transform the constitution into a membrane communicating its partisan cause. ²² Interpretation by a ‘captured constitutional court’ can have an entrenching effect. ²³ Legislative entrenchment is a problem that Hungary is facing as regards its relatively recent Fundamental Law and several cardinal laws that no simple majority has the power to amend. ²⁴

A sobering perspective

The current situation in various countries is not directly of concern here. What matters is that both a ‘captured court’ and constitutional amendments based on transient supermajorities can de facto or de jure abrogate prior and more equitable constitutional arrangements and thus create huge obstacles to their retrieval.

The emphasis on change by interpretive means points to Madison’s core idea. In his view, constitutional texts are, citing his famous words, mere ‘parchment barriers against the encroaching spirit of power’. ²⁵ The law that is written on paper does not and cannot bind unless it is supported by agents that ‘make it stick’. But who should these agents be, in a field where everyone must suspect that nobody is inclined to play by the rules? Even if it were true that the meaning of the constitution appears on the surface of literal meanings or in politically innocuous ordinary language, it would still be naïve to presume that the political agents inhabiting constitutional space are ready to abide by it.

One might object ²⁶ that my observations presuppose a commitment to legal realism and version of hermeneutics that disavows all belief in clear and stable meanings. The argument advanced here, however, does not presuppose endorsing any such view. Even a most naïve legal formalist – as described by Stanley Fish (see below) – would have to concede that in the political arena of constitutional interpretation it is reasonable to expect that interpreters pursue some more or less ‘hidden agenda’ and manipulate meanings in their favour. Here is how Fish characterises ‘formalism’: ²⁷

… [I]n order to check the imperial ambitions of particular moralities, some point of resistance to interpretation must be found, and that is why the doctrine of formalism has proved so attractive. Formalism is the thesis that it is possible to put down marks so self-sufficiently perspicuous that they repel interpretation; it is the thesis that one can write sentences of such precision and simplicity that their meanings leap off the page in a way no one – no matter what his or her situation or point of view – can ignore ….

One can believe in exactly this possibility and still concede that in a constitutional context the political players are not going to adhere faithfully to ‘ordinary meanings’, not even courts. ²⁸

But matters are even worse. The relevance of canons of legal interpretation is not, and arguably cannot even be, arranged in a normative sequence. Appeals to ordinary meanings are of no avail where the pragmatic context of an utterance suggests that the speaker intended to say something out of the ordinary. ²⁹ Conversely, having recourse to intentions is an empty gesture where such intentions remain elusive. ³⁰ This strongly suggests that the understanding of utterances and texts is an art, ³¹ the mastery of which requires the flexible use of various canons in changing constellations.

There is not one but several ‘methods’ of interpreting the constitution and it is fair to say, following Hans Kelsen, that prima facie any one is as good or as bad as any other. ³² What is rendered as the meaning of the constitution is thus bound to be a product of its interpretation (which is not to deny that, in certain contexts, some interpretations may appear to be more plausible than others).

Juxtaposing this insight from hermeneutics with the fact that a constitutional setting is one of political struggle, it makes sense to be mindful of John Marshall’s most famous words, which indeed subtly exemplify what Madison sought to convey. According to Marshall we must not forget that it is a ‘constitution that we are expounding’. ³³ Any approach to sustaining the authority of the constitution that demanded faithfulness to preestablished meanings of utterances would misunderstand what a constitution is about. It establishes the field in which ambitious agents manipulate meanings and suspect others of doing the same. This explains why in the eyes of a dissatisfied beholder a ruling of a court may seem to lend a voice to the ruling class, to a detached supranational elite, a current government or, alternatively, the dead hand of the past. The authority of courts is doomed to be contested. ³⁴ A normative theory of interpretation cannot settle the issue, for it is invariably suspect of being complicit with some political scheme. The critical perspectives on Scalia’s seemingly neutral ‘originalism’ support this conclusion. ³⁵

The invisible hand

Against this background, Madison offers an alternative. Paradoxically, it is both straightforward and utopian. It is straightforward, for it appears to offer the only way out; and it is utopian, for one cannot imagine how it could ever attain its supposed effect. In fact, Madison’s alternative appears to be hoist with its own petard.

According to Madison, the constitution must be designed in such a way that the strategic interaction among the branches and various officials of government de facto sustains what the constitution de jure means. The forces notoriously defying the rules must be made to interact in a manner that is, in the final result, externally congruent with these rules. What Madison anticipates here is some invisible-hand effect. ³⁶ It is immaterial that the agents intend to bring it about. Their motives may legitimately be completely detached from any concern with constitutional law. Indeed, Madison posits that strong self-interested motives are necessary to create legality as a side-effect of uncoordinated behaviour. This explains why Federalist No. 51 is replete with maxims such as: ³⁷

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

[T]he private interest of every individual may be a sentinel over the public rights.

The human self-interest unleashed within the constitutional space must give rise to mutual checking and create a pattern of behaviour that eventually coincides externally with what the constitution requires.

The inside is the outside

This marks the point at which the straightforward element of Madison’s alternative falls victim to naïveté. He adds to the invisible-hand effect a claim of convergence. The idea is that the pattern of how powers can be effectively exercised by participants in the constitutional system will match what various constitutional provisions prescribe and proscribe as law. This belief rests on a faith for which Madison fails to offer a warrant. ³⁸ One must even be afraid that this faith is utterly optimistic and contrary to Madison’s own premises.

First, there is no good reason to believe that what emerges as constitutional law from jockeying over political power within the system is congruent with what various constitutional provisions require independent of requisite struggles.

Second, Madison’s faith is, if this predicate can be true of mere faith at all, self-defeating. The convergence presupposes that the constitution means something outside and independent of the constitutional system. But this cannot be the case, since a constitution essentially is a setting in which ambitious agents manipulate meanings. Any extra-systemic or original meaning of the constitution is, therefore, necessarily self-effacing. It must be so for the simple reason that it is ‘a constitution that we are expounding’; ³⁹ from which we can conclude that the self-effacement of the extra-systemic meaning of the constitution constitutes as exclusively relevant any contingently arrived at intra-systemic meaning. The delimitation of powers are constructs that various agents settle on within the constitutional system. The constitution means what it is taken to mean from within the positions that are set up by it. Thus understood, the constructed meanings are the original meaning. The political constitution that is manifest in the social interaction among the players of the system ⁴⁰ would have no signifiers to fill with content if legal provisions did not establish points of reference. The legal constitution composed of these reference points would remain largely indeterminate if political forces did not act upon it.

Attitude and status

Suppose a government, aided and abetted by parliament, would like to have a number of long-serving constitutional court judges replaced with persons whom it believes to adhere loyally to its ideology. ⁴¹ It therefore passes a bill generally lowering the retirement age of judges. ⁴² The term of the disfavoured judges comes to an end. Alternatively, a government may lower the retirement age either for supreme court judges ⁴³ or for judges in general and grant the minister of justice discretion to permit judges, upon their application, to continue their service even after they have reached the new official retirement age. ⁴⁴

These examples are, as is well known, not entirely fictitious. The measures in question are clearly targeted at political opponents. ⁴⁵ But they are cast in a manner that makes them look – from a distance, at any rate – not too terrible. Why should one not occasionally adjust the retirement age? These measures are illustrations of what Sajó calls ‘ruling by cheating’. Those who design them obviously take the reactions of potential opponents into account when they try to present them as constitutionally unobjectionable and as normal as possible.

What this simple example indicates, above all, is that the intra-systemic meanings of constitutional law are both attitude- and status-dependent. ⁴⁶

Attitude-dependence means that something is valid or meaningful because we regard it as such. The object of our intentions has no axiological or semantic standing in itself, independent of our attitude towards it. A word means what we take it to mean; a norm is binding because we regard it as such.

Status-dependence means that whether your attitudes matter to others – i.e. whether they count or whether you can be made responsible for them – depends on who you are. ⁴⁷

Both forms of dependence in combination imply, in our context, that constitutional law is what those with status take it to be and that their attitudes pass as relevant (as entitled or responsible to give an account) within a constitutional system. While ordinary people ostensibly lack such status, ‘reputed publicists’ have quite a bit of it, and some courts usually possess it to the highest degree. Status is a matter of mutual recognition.

The meaning of the constitution is the joint product of those who possess status. There is no monopoly. Status is always shared and depends on being confirmed. ⁴⁸ If the Pope said that Jesus did not rise from the dead, he would no longer be Pope. If the European Court of Justice overruled Costa ⁴⁹ and renounced the doctrine of supremacy, we would either regard it as captured by hostile forces or suspect its members of suffering from some form of nervous frenzy. ⁵⁰

Since status is always shared, all intra-systemic constitutional meanings are, basically, systemic. The ascriptions of meaning to the constitution reflect what the speakers expect others who possess status to accept, or at least to understand, even if on occasion merely reluctantly. A defence of an interpretation is an attempt to alter or to confirm the attitudes of others. Emerging common meanings are practised. Their existence is indeed due to mutually relinquishing a quasi ‘natural right’ to having the constitution mean what one prefers it to mean. The latter would match a situation of completely unilateral attitude-dependence. Yet, for meanings to be possible, attitude-dependence must be mutual. ⁵¹ Hence, those wanting to oust unwanted judges are aware that they would risk their status if they did not pretend to muster a constitutional argument in support of their cause.

Within a system that does not base itself on the rule of law in our contemporary understanding ⁵² it may remain obvious that constitutional meanings are negotiated and a result of various equilibria ⁵³ between and among contending actors and groups. This, if anything, is the essential idea of ‘political constitutionalism’. ⁵⁴ Its proponents claim the meanings of constitutional arrangement reflect the understandings that players with status attribute to it. Systems that, by contrast, signal faithfulness to a constitutional principal (‘we the people’) need to present interpretations in impersonal garb and signal attitude-independence to whoever appraises such interpretations from the principal’s point of view. By definition, any such principal is believed to be superior to the players. The constitution is what they have ordained.

Seeming attitude-independence: reification

There is, evidently, a circular relation between attitude and status. Status is conferred based on attitudes. Someone is regarded as relevant. Attitudes, in turn, are relevant only if they are attributable to status. Status can be sustained if one does not too frequently come across as having gone bonkers in one’s interpretations. Expressed in now customary neoliberal parlance, this means that nobody ‘owns’ constitutional meanings. Everyone needs to tread with more (attorneys) or less (high courts) caution. The participants will usually seek to speak as others do. ⁵⁵ The meanings thus become rendered as the meanings of no one in particular. They stand for what ‘we’ conventionally understand by something. Only a small step needs to be taken to substitute the ‘we’ with an ‘it’. This is how ‘the constitution’ can come to mean something and not just anything. Its meaning is rendered as attitude-independent.

Not by accident, then, the system envisaged by Madison can claim to sustain the law and encourage its participants to clinch to the idea that conceptual content, i.e. the meaning of constitutional norms, even though attitude-dependent, exists as though it were the opposite. It can be taken as a ‘given’ and be spoken of with an attitude of respect. After all, it is the word of the principal.

Now, while extra-systemic meaning is in principle impossible and unavailable (see above), the negotiation of constitutional meanings can nonetheless be linked to texts and to rules established in precedents. Speaking with Lukács, the underlying shift of attention from the social interaction to the product that this interaction gives rise to is a paradigmatic instance of reification. ⁵⁶ The attitudes and statuses are forgotten. The meanings appear to be ‘there’ as if they were things. We expect later cases to draw out the implications of former cases and interpretations to disinter the latent meaning of norms. Since this is done from one case to the next, purportedly attitude-independent constitutional content becomes tacitly fed into negotiations and renegotiations of what is palatable for those who possess status. The result is a great deal of to and fro. It explains why relatively bold judicial pronouncements are often trailed with more detailed ‘qualifications’ trimming their scope of application. The question is not only whether results are not met with resistance by others with status, but also whether what a court says today is considered relevant and sound by the same court in the future. ⁵⁷ It is true, in particular, in a system of constitutional pluralism where the supranational courts had better pay heed to the core constitutional commitments of the member states (Article 4[2] TEU). ⁵⁸ The limits are to be drawn on a case-by-case basis in a zone of cumbersome mutual engagement. In systems where courts play a major role, a certain ‘duplicity’ inherent in interpretation sustains the impersonal authority of law and hides underlying motives. Both are essential ingredients of ‘legal constitutionalism’. ⁵⁹

The triadic rule of recognition

A political constitution that comprises its legal referent can remain in good order so long as the relevant players sustain three internally connected normative commitments.

First, the political players generating intra-systemic meanings need to recognise each other in their respective capacity. They have to attribute ‘status’ to one another. If they did not, co-operation would break down. ⁶⁰

Second, the players must prefer sustaining the constitutional order to its disintegration (see above). ⁶¹

Third, if the players purport allegiance to a principal they need to cast what they do as observing the constitution qua the principal’s law. Putting the matter bluntly, the faithful adherence to the rule of law must be put on display vis-à-vis the people. It is not by accident that regarding the constitution as a norm and linking the pedigree of constitutional law to the first act of a single authority belong together.

Mutual recognition, a preference for order rather than chaos and, possibly, the commitment to legality are conditions for the emergence and continuous existence of constitutional law. This triad is the real rule of recognition ⁶² of constitutional legal orders.

The relevance of confirmation and contestation by those who possess status implies that the meaning of the constitution emerges from its system as a whole. ⁶³ It does not take roots in an order of values awaiting implementation. Indeed, this latter view reflects a rather bureaucratic and apolitical perspective on constitutional law.

Cancel culture

When meanings have emerged, they give rise to routine and can be upheld through appeals to common understandings – precedents, as it were. Such appeals serve as implicit warnings that once an existing equilibrium among political forces becomes upset, the constitutional order will quickly be riven with conflict. The constitutional conventions or settled meanings are nonetheless derivative of the attitudes of the participants of the system. Despite the appearance they are given in judicial expositions of law, they are not ‘just there’. They are attitude-dependent. At the same time, in a smoothly working constitutional order this dependence is masked by the widespread expectation that precedents ought to be followed. The constitution can become a given by being treated as given. ⁶⁴

Agents, however, need to be concerned about their status qua purveyors of meanings. Their status is, as adumbrated above, a matter of mutual recognition. The possession of status is, however, a mixed blessing, for it can be met with either support or cancellation. The assertion of constitutional meanings requires coalition-building and reliable backers. Hence, it is important to have allies in order to be able to prevail upon potential dissenters and to bring them on board. Coalition-building is part of the normal predicament faced by member states before the European Court of Justice: if a ruling affects them adversely, it is not likely that other member states will rally to their support and cry out aloud that the ruling was ultra vires or in any other form bogus. The reverse side of support is cancellation. If you are a national government, you are likely to find your own appeal to your national constitutional identity (Article 4[2] TEU) of great relevance. If you are the European Court of Justice, you are less so disposed. ⁶⁵ The supranational court does not listen.

Coalitions and cancellations are a manifestation of the political nature of constitutional law. It prioritises cancellation since invalidation or ignoring a potential stakeholder ultimately creates negative incentives to cooperate. Hence, constitutions create collective power by excluding participants or by offering opportunities to declare certain of their statements or acts as irrelevant. Constitutionalism is essentially like cancel culture. ⁶⁶ Foreigners have no voice. Elections serve to eliminate parties from the political process. Various legislative procedures, in particular in the European Union, bar from participation some who are believed to be holding a stake on certain issues. Resolutions of one body can be cancelled owing to the veto of another. Decisions of institutions can be overridden. Officeholders can be removed by a vote of no confidence or by manipulating their term limit. Deliberations and negotiation are conducted in the shadow of the ever-looming threat of exclusion (e.g. shift to a different partner) or cancellation (e.g. re-election).

Constitutional interpretation, despite its duplicity (see above), does not rise above the political process. Rather, it is a political process of a second order. Hence, it involves the ability to cancel through the selective use of precedents or overruling; or by declaring certain acts null and void (or by voiding them at the end of procedures). The rampant consequences of this culture are particularly manifest in EU law. The European Court of Justice may find that certain national laws must be disapplied owing to a conflict with EU law or impose interim measures and support them with an order to pay heavy fines. ⁶⁷ The national constitutional tribunal may reply – even if not directly – by saying that the relevant rulings by the European Court of Justice are irrelevant since they are premised on a false teleological interpretation of EU Law ⁶⁸ – on an absolute primacy of EU law that is inconsistent with the national constitution. ⁶⁹ The Vice-President of the Court of Justice of the European Union imposes a penalty payment for failure to comply with an interim measure. ⁷⁰ The national constitutional court rejoins by saying that the European Court of Justice has no power to do so. Nullity is countered with nullity. This is cancel culture in action. It can grow to amazing proportions. Kim Scheppele proposed that a new majority in Hungary not just disapply parts of the Fundamental Law that are inconsistent with Union law and European human rights law precedents, but that questionable appointments of justices of late be disregarded. ⁷¹ This is, in a sense, cancel culture on steroids. On the other side of the ideological spectrum, Poland seems to be playing this game very well. Apparently, no fines have been paid for its non-compliance with interim measures, ⁷² and the respective complaints by the Commission are met, again, by denying EU law its primacy. ⁷³

The constitutional cancel culture reaches its most fundamental level when it concerns the expulsion of a whole group – be it a social class, a region or a country – from the political body. The relevant instrument, however, needs to make this an option.

This is a matter to which I would like to return in my concluding remarks.

Elementary cancellations

At its most elementary level, the cancel culture of constitutional law operates by either voiding norms or eliminating those who possess status. Substantive meanings and agents are merely two sides of the same coin. Entrenched norms are a means to sustain presence even if one is no longer part of the legislative assembly. ⁷⁴

This simple duality reveals that constitutions are composed of two elements. First, they establish principles that participating groups are expected to accept. Such principles are supposed to limit the scope of those reasonable disagreements which may legitimately unfold within the political process. Second, constitutions admit certain groups as active participants and exclude others. The widespread disenfranchisement of foreigners or of criminal convicts is a paradigmatic example. From this it follows that constitutions can be attuned to their elements by either adjusting principles to groups or by selecting groups depending on whether they are amenable to principles. ⁷⁵

The two basic elements, then, indicate what – at any rate, from an Aristotelian perspective ⁷⁶ – the basic problem is that constitutions are designed to solve. Groups should be capable of interacting in a manner that, even if not conducive to the common good, at least sustains the loyalty of those suffering defeat in the political process. What defection may look like became obvious on 6 January 2021, when in a joint session of Congress the electoral victory of Joe Biden was to be acknowledged. This could have been the beginning of the end of the American Republic. ⁷⁷

If those who were defeated do in fact lack loyalty, it is essential to disempower them effectively.

Liberal exclusion

The EU is a creature of modern liberalism. Article 2 TEU is an impressive testament to it. ⁷⁸ On the level of the cancel culture that liberal societies establish in their constitutional law, they endorse an inclusive mode of exclusion. It is manifest in a set of preferences.

Liberal constitutional systems eliminate norms rather than persons. It would not occur to a liberal society to have those who have voted in favour of unconstitutional laws lose their seat in the representative assembly.

Where the elimination of persons seems unavoidable, there is a clear preference for ousting individuals rather than banning whole groups.

And if groups need to be barred from participation, such as the national socialists, this affects the conduct of their members only and never their mere presence. Liberal societies do not relocate their Nazis to camps on forlorn islands; nor do they put them to death. Nazis and other insufferable people may remain in our midst so long as they keep a low profile.

Liberal societies prefer regulating conduct to forcing people to adopt proper attitudes. Therefore, even egregious extremists enjoy freedom of conscience. What is more, liberal societies often demonstrate much patience with ‘sovereign citizens’.

No federal execution

But even liberal societies have to bite the bullet at times and to exclude on a larger scale. The need to crush those lacking loyalty to a federal system explains why such systems, even if they are based on international agreements, often admit of some version of ‘federal execution’. Even the German Federation of 1815 recognised this instrument. ⁷⁹ If a government infringed the federal constitution, for example, by failing to oppress democratic forces, the federation could intervene even by military means and take over control exercised by a federal commissioner. While today replacing the Polish government with such a commissioner would resolve the conflict with the Union, introducing such a regime is not an option in the EU. Nobody can seriously support another military invasion of Poland (in particular not if one is German).

Yet, if we cannot either elicit loyalty or contain and defeat the opposition, there is no constitution. There is just a huge mess. The euphemism for this mess goes by the name of ‘constitutional pluralism’. ⁸⁰ Pluralism may be intellectually titillating so long as it concerns the Federal Constitutional Court and its assessment of Treaty amendments or of how the European Court of Justice reviews measures adopted by the European Central Bank. ⁸¹ It loses its charm, however, once it affects judicial independence.

Scholars sometimes claim that the unavailability of coercive enforcement underscores the legal nature of the EU. At the end of the day, compliance is a voluntary affair. ⁸² For a description of a legal community, this sounds a bit odd. ⁸³

Concededly, withholding of funds pursuant to the Conditionality Regulation ⁸⁴ or, what appears to be the more feasible option, based on Article 8 of the Regulation governing the Recovery and Resilience Facility ⁸⁵ may serve as a means to exercise pressure. Immediately after its adoption the Conditionality Regulation was not to be used, and the Council promised to stand still until the European Court of Justice ruled on its validity. ⁸⁶ After Advocate General Manuel Campos Sánches-Bordona issued an Opinion on 2 December 2021, ⁸⁷ in which he dismissed out of hand the challenge posed by the Hungarian and the Polish governments, the Court has handed down its judgment on 16 February 2022. Quite unsurprisingly, it agreed with the Advocate General that the mechanism was adopted by using the appropriate legal base and was compatible with Article 7 TEU. ⁸⁸ The Court considers it also impeccable in other challenged respects, in particular regarding the challenge to legal certainty. Apparently, the Court did not shy away from appealing to ‘the basics’, namely to the values enshrined in Article 2 TEU, thereby attributing particular significance not only to the rule of law, but also to solidarity and mutual trust among the member states. ⁸⁹ The Court also makes clear that Article 7 TEU sweeps much more broadly than the Conditionality Regulation, which is merely intended to protect the Union’s budget and is applicable to breaches of the rule of law (and not to other values). While questions of this kind can scarcely ever be resolved by compelling arguments, Madison would have been pleased to see how the ambition to sustain a coherent understanding of the rule of law among the members of a federation has prevailed over the countervailing ambition to hold the judiciary on the tight leash of the government by invoking a particular ‘national’ understanding of that principle.

Nevertheless, pursuant to the Conditionality Regulation, the potential suspension of disbursements is conditional on the fact that breaches of the principles of the rule of law in a member state affect or seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way (Article 4 leg. cit.). Owing to this link between offences to the rule of law and financial management, it seems that only a limited number of breaches of Article 2 TEU might trigger the application of the Conditionality Regulation. ⁹⁰ These potential obstacles notwithstanding, on 12 December 2022, the Council of the EU decided to suspend approximately €6.3 billion in budgetary commitments vis-à-vis Hungary. ⁹¹

If the defecting members can still not be silenced or contained, the only alternative that is left within the context of a constitutional cancel culture is to show them the door. This should not, of course, be done for light and transient causes. But if it turns out that, even after a number of attempts have been made, a change of attitude cannot be brought about by means of national elections, then the member state ought to be kicked out of the Union.

Exit negotiations

This raises the question whether there is a lacuna in the Treaties regarding the initiation of exit talks with member states. Article 50 TEU leaves the choice to initiate exit proceedings to the member states. The use of the no longer so ‘nuclear’ Article 7 TEU ⁹² may only result in the withdrawal of voting rights in the Council as the most severe sanction (this is what the wording seems to suggest). This indicates strongly that the Treaty anticipates that backsliding will amount to a mere temporary aberration. Indeed, considering that any rational government of a member state would choose to leave the Union if it found itself permanently disenfranchised in the Council, it seems as though the Treaty framework does not leave a gap, but is, on the contrary, rather coherent. And since Article 7 TEU can be used only to ‘suspend’ voting rights, ending the membership is out of reach for this procedure.

Using Article 352 TFEU in order to fill a lacuna in order to ‘adopt an act necessary to attain objectives laid down by the treaties, when the necessary powers of action are not provided by the treaties’ would be a bit of a stretch, to say the least. Not only would the unanimity requirement in the Treaty have to be modified in light of Article 7 TEU and 354 TFEU, which excludes the vote of the affected member state, ⁹³ one would also have to sort out the relation between Article 48 TEU (governing Treaty amendments) and Article 352 TFEU in such a fundamental matter. Even though EU law is a field where much can be done by means of legal alchemy, ⁹⁴ it would be rather bold to suggest that a provision that is explicitly restricted to the ‘policies defined by the treaties’ may be used to amend effectively the TEU.

The inability on the part of the Union to use existing Treaty law in order to expel a defiant member state does not, however, alter the fact that if the Union fails to sustain constitutional discipline, it is likely to end up being mired in skirmishes with all kinds of member states invoking their national constitutional identity. ⁹⁵ The Union would be weakened into a Europe à la carte and Ferguson’s prediction would be proven right that the long-term relevance of the Union might be similar to that of international organisations on the level of the Organization for Economic Cooperation and Development. ⁹⁶

In the face of this prospect, one should not dismiss out of hand a recourse to Article 60(2)(a)(i) of the Vienna Convention on the Law of Treaties. ⁹⁷ It permits other parties to a multilateral treaty by unanimous agreement to suspend or to terminate its operation vis-à-vis a party committing a ‘material’ treaty breach. As Article 60(3)(b) explains, such a breach may consist of ‘violation of a provision essential to the accomplishment of the object or purpose of the treaty’. Since Article 3 TEU explicitly embraces the realisation of the values of Article 2 as an aim of the Union, the member states may want to rely on public international law in order to ‘expel’ a defaulting party, not least because Article 60(2)(a)(i) makes it possible to sustain the operation of the treaty among themselves. ⁹⁸

The return of the people

There is another important lesson to be learned for constitutional law from the encounter with illiberal democracies. So far, the world of contemporary European constitutional law has been built basically against the people. The post-war European attitude towards constitution-making – much to the chagrin of Jed Rubenfeld – was based on the view that a constitution is made for the people and not by them. ⁹⁹ It must be the work of experts, carried out with an eye to containing unruly popular forces. ¹⁰⁰

The current situation in backsliding states such as Hungary explains why European constitutional law needs to reconsider its attitude toward the people. The people must eliminate obnoxious governments and they are needed in their capacity as the ultimate political subject, that is, as those exercising the constituent power. ¹⁰¹ I have mentioned that Scheppele has come up with an amazingly complex construction of how precedent can be used in order to set aside the Hungarian fundamental law, cardinal laws and to ignore recent judicial appointments. ¹⁰² It is clear, however, that these ideas would have to be implemented by a parliamentary majority. Since the implementation of such a lofty juridical construct would be met with much opposition by a still sizeable segment of Fidesz supporters, Halmai’s ¹⁰³ and Sajó’s ¹⁰⁴ proposals – made, however, before the last election in 2022 – seem to make more sense, at any rate from an entirely pragmatic perspective. Whatever will be done by the majority will be regarded as revolution by the minority. So why not declare it a revolution and open the process of reorganisation to a wider group of participants?

European constitutionalism has so far done everything to eliminate the people and stay away from popular sovereignty. The lack of Bundesexekution demonstrates why the people may be ever more necessary than before.

Obviously, the last word goes to John Locke, or rather, to the Almighty. The final act to save the rule of law can, for asserting its rightfulness, only appeal to the ultimate umpire who resides in heaven. ¹⁰⁵ After people have said their prayers, they are free to resist.