Constitutions Without Constitutionalism? Constitutional Politics in East Central Europe

According to Bruce Ackerman's theory of constitutionalism, a constitution is a particular set of (written or unwritten) principles that were adopted by the people at extraordinary moments. Only those initiatives that survive participative deliberative fora of higher law-making earn the special kind of constitutional legitimacy (Ackerman 1989: 461). This higher law-making is distinguished from daily decisions made by the government. “Even when this system of normal politics is operating well, the dualist constitution tries to prevent the daily decisions reached by government from being confused with the rare decisions reached by the People.” (Ackerman 1989: 461) However, many countries worldwide did not follow this blueprint as to the process of higher law-making, the functions of constitutions and the logic of constitutional politics. This is also true for some East Central European countries. Although the constitutions are formally protected against changes by higher thresholds for amendment, constitutional texts are often used as means for political ends. Following such an instrumental mindset, actors seem to adapt higher-order decision-making rules to their own interests rather than being constrained by them in day-to-day politics. This weakens the de-facto rigidity of constitutions and their capacity to prevent self-interested decisions of governing majorities. Against this background, the paper is interested in contributing to a better understanding of constitutional politics in East Central Europe. It first maps constitutional amendment activities in the region since 1990 and asks whether the national frequency of reform and tackled issues are similar across the countries and over time. The second part shows that standard factors in transformation, Europeanization and constitution studies fail to explain the empirical pattern. Section three proposes a new approach to capture the functions and logic of constitutional politics in (de)democratization processes.