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									        Constitution –
Constitutionalism – Protecting
       the Constitution

     1. The Constitution
2. Constitutionalism – Rule of
3. Protecting the Constitution
              1. The Constitution
   describing the terms of power; the fears deriving from
    the previous regimes (András Sajó: Limiting
    Government); the moral sail of the state (Ronald
   in dictatorships: only a paper

   the notion of constitution in material sense: the
    position of the state and its citizens – in this sense every
    state has a constitution
   in formal sense: one single written document, the basic
    law (no constitution: UK, Israel, Saudi Arabia)
 historical    background:
     the ‘politea’ of Aristotle – the governance of a
      city state, the form of government
     Cicero’s ‘constitutio’ – the basic norms of a
     the contract theory: the original source of the
      power is the contract between the people and
      the ruler (Ulpianus) – breach of contract ~
      right to resistance, killing the oppressor
      (Magna Charta, Golden Bull; Thomas
   the modern constitution – the first form of the
    modern state: absolute monarchy in the 17th
    century → concentration of power → puritan
    revolution → constitutional monarchy ~
    constitutional government

   the development of the American and French
    constitutionalism in the 18th century

   the legal character of the constitution:
    supremacy and its protection by complicated
    amendment procedures – dissolution (Belgian,
    Dutch, Norwegian), referendum (US,
    Switzerland, Australia, France) amendment,
    eternity clauses (Germany)
 2. Constitutionalism – Rule of Law
 constitutionalism answers the question whether
  the given solution of state administration and
  regulation prevents the unreasonable limitation
  on the freedom, the organized dictatorship, i.e.
  the principles of constitutionalism = a system of
  limitations where the freedom of the citizens
  prevails (Sajó)
 its legitimizing basis is the constitution, which is
  acknowledged both by the state institutions and
  the citizens
 The 1789 French Declaration, Art. 16: it is
 not a state governed by rule of law, where
     human rights are not guaranteed,
     there is no separation of powers

 constitutionalism  = beyond the material
 (substantive requirements ~ not
 necessarily by a written const., 1936/1949)
 and the formal notion of const. (also
 without a written constitution, England)
constitutional (rule of law) state (limited
 government) = where the different legal
 principles, institutions and procedures
 prevent the arbitrary activities of the state
 authorities (e.g. U.S. Const. 14th
 Amendment: no one can be deprived of his
 life, liberty or property without a due
 one of the principles: separation of the
 different branches (legislative,
 executive, judiciary)
     historically two forms:
      - separation of powers: constitutional
       monarchy, presidential      (US – not the
       in principle complete separation; their
       creation is completely independent too;
       5th French republic: half-presidential
       (dual executive)
- division of powers: parlamentarism –
less significant personal separation; no
branch is able to act without the other(s)
19th cent.: beside the king a government
elected by the parliament → doubled
executive branch;
asymmetry in the creation: the executive
power is created by the Parl.; with a vote of
confidence the Parl. may overthrow the
government, but often the Parl. may be
Two types of parliamentarism (on the
 basis of the relationship between the
 legislation and execution):

   majority (Westminsterian): two-party system >
    stable government (UK, Australia, New

   consensual : multi-party system, coalition
    governments (continental Europe)
    3. Protecting the Constitution
   in wide sense: different state institutions (e.g.
    Finland: Parliament)

   in narrower sense: judiciary (constitutional
    adjudication) – ordinary or separate courts
    (constitutional courts)

   against constitutional courts:
       English revolution: absolute parliamentary sovereignty → does
        not exist anymore
       French revolution: sovereignty of the people (Rousseau) → only
        preliminary review
 models    of constitutional adjudication:

     decentralized: „American” or „diffuse” model –
      US. Marbury v. Madison → Argentina,
      Australia, Canada, India, Japan,
      Scandinavian countries, Switzerland

     centralized: „Austrian” or „European” model –
      Germany, Italy, Spain, Portugal, Eastern
       Hungarian Constitutional
       Developments after 1989
1.   The 1949 Constitution

2.   „Constitutional Revolution”
           Hungarian Constitutional
           Developments after 1989
1. The 1949 Constitution
 The 1936 Soviet model:
        unity of the state power, but division of labor
         → 4 types of institutions
        citizens’ rights without guarantees

       Sólyom-Committee in 2002: before 1989
        Hungary was not a rule of law state
2. „Constitutional Revolution”
 instead of a new constitution
    comprehensive amendment: Opposition
    and National Roundtable (mutual fears)
 Hungarian parliamentarism: pact (1990)
    – stable government (constructive vote of
    confidence, reducing the numbers of acts
    requiring 2/3 majority); „middle-weak”
 strong constitutional adjudication
       attempts for adopting a new constitution:

         „new reformers” (1990-94)

         restorers (1996)

         current chances

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