The perspective of my paper is the politics of constitution-making and constitutional interpretation as different points of the same continuum (viz. constitutional politics) in the context of the post-communist transitions in East Central Europe, 1989-1993. However different they may seem, constitution-making and constitutional interpretation actually have much in common. As constitution-making needs a preliminary understanding of the goals, values and effects of a certain constitutional choice, so constitutional interpretation presupposes the power to institutionalize the meaning it assigns to a certain constitutional rule. From this viewpoint, ‘constitutional politics’ appears as the site where various fundamental moral, legal, and political beliefs of a political community meet and interact with each other, while (democratic) ‘transition’ is a specific ‘constitutional moment’ when well-established rules of politics (and the values underpinning them) could come under question. The analysis of ‘constitutional politics’ in ‘constitutional moments’ offers a possibility to reflect on both the differences and the general patterns of ideas as factors of politics, and – to be sure – transitional justice is one of the key problems in conceptualizing and understanding of the nature of political transition. Still it may seem somewhat counter-intuitive to choose the democratic transitions of ECE countries for the object of such analysis, since a number of different authors described these transitions as ‘conservative’, merely ‘corrective’ revolutions fought under the flag of a ‘back to normalcy’ ideology. However, constitutional courts (as par excellence sites for constitutional interpretation) and institutional arrangements for transitional justice are usually discussed as rare exceptions to the abovementioned rule. Constitutional courts in ECE countries assumed an active role in breaking the grounds of the constitutional foundations of the new democracies through a strong bias to rights-protection and a ‘moral realist’ self-legitimacy, and by dint of their activism they early faced a wide range of constitutional problems of enacting transitional justice. Constitutional courts inevitably became arbiters in debates of the conflicting political conceptions of transitional justice, and what is more important the comparative differences of constitutional courts’ decisions (Lex Tétényi-Takács in Hungary versus lustration in Czech Republic) show a tension between the ‘realist’ rhetoric of constitutional courts and the political contingency of the choices of the ECE constitutional courts based on a presupposed ‘objektive Wertordnung’ in these questions. How can we best explain this tension? I argue that the best explanation of it could be found in a ‘political constructivist’ understanding of constitutional interpretation. From this perspective, conflicting conceptions of transitional justice are of political nature, and the quest of ECE lawyers and politicians for a ‘moral realist’ justification was a part of an ideological arms race in the conflict of these political biases.
