Constitutional Politics and De-Democratization

Abstract

Over the past decade, constitutional politics has been returning to Central and Eastern Europe. In many places, the current condition is reminiscent of the early post-communist period, when constitution-making was about “rebuilding the ship in the open sea” and actors were bargaining for higher-order decision-making rules rather than being constrained by them in ordinary political practice. Taking a pragmatic, utilitarian approach to constitutions and constitutional politics, the main actors continue to conflate “normal” political competition and constitutional rule-setting and re-writing. However, the overall picture seems to be different from the early 1990s in that the drafters of constitutional revisions do not explicitly refer anymore to Western templates as the single most important source of constitutional inspiration, or even frankly refuse to do so. The panel aims at taking some steps toward a better understanding of constitutional politics in young democracies that are similarly challenged by the growth of political polarization, populism, alienation etc. as the established democracies in Western Europe, but cannot rely on longstanding democratic traditions and a deep normative commitment of elites and citizens to liberal constitutionalism. How does this affect constitutional politics? The papers in the panel analyse constitutional change, understood as the political practice of constitutional reforms as well as rhetorical and interpretative practice. The amount and causes of constitutional flexibility – or even tinkering – are examined, as well as the role of the main political actors, i.e., competing political parties, presidents, and constitutional courts. Do we find a regional, i.e., post-communist pattern of constitutional politics? Have the post-communist liberal constitutions simply failed to take roots in the political culture and continue to be adapted to their contexts, or do we observe a substantially new wave of constitution-(re)making? If so: what is new and why? What are the factors that push constitutional courts to judicial activism and intervention into conflicts within the executive or between governing parties and the opposition? Are there meaningful changes in the realm of “real” constitutions, i.e., in the actual basic rules of the political game, without amending the “parchment”? The papers submitted to this panel present small-N or case studies aiming at an emic understanding of constitutions and constitutional politics in Central and Eastern Europe “from within.”