In the 1980s, Hungary, like its neighbors in the communist world, was not a liberal democracy. Nor did it practice constitutionalism or the rule of law as we understand those precepts in the West. So I was intrigued when, in 1988, I had a call from the U.S. State Department asking if I would meet with a team of constitutional drafters from Hungary.
I hosted the delegation for two days of conversations about what goes into making a constitution in a liberal democracy. I was then invited to Budapest that summer for further conversations. The communist government was still in power. Even so, I could sense that the authorities, mulling developments (such as the rise of Solidarity in Poland) in the region, sensed that change was coming and hoped to ride it out.
When it came, change in the region was sudden and widespread. In 1989, the Berlin Wall came down. One after another, communist regimes fell, and freedom’s light began to filter into countries long under Soviet domination. I had the good fortune to be invited to compare notes with constitution-makers in several countries, including Poland, Czechoslovakia and others. Not having been at Philadelphia in 1787, how could I, an American constitutional law professor, not want to be present at what some came to call a Springtime of Nations?
In my travels, I soon came to realize the importance to constitution-making of a country’s history and culture. A wag once said that “Central and Eastern Europe carries more history in its knapsack than it can consume locally.” So it seemed appropriate when students in Budapest took me to the spot on the steps of the National Museum where Hungary’s great national poet, Sandor Petofi, on the verge of the 1848 revolution, declaimed his “National Hymn.”
Drafters of new constitutions in post-communist Central and Eastern Europe drew heavily on Western principles of liberal constitutional democracy. These included free and fair elections, a free press, independent courts, checks and balances, and constitutional supremacy. Hoping to be once again members of the family of Europe, nations in the region were influenced by the charters of successful democracies in the West, especially Germany’s Basic Law of 1949. Visiting consultants from Germany, France, the United Kingdom and the United States were asked to comment on draft constitutions.
I recall the optimism, even euphoria, that was common in those days. In 1992, Francis Fukuyama wrote a widely read book, “The End of History and the Last Man.” He predicted the “universalization of Western liberal democracy as the final form of human government.”
Today, how different things look. The widely shared optimism of the 1990s about the spread of liberal democracy has been undermined in a number of countries by such forces as nationalism, populism, xenophobia and anti-globalism.
In June 1989, in Budapest, an unknown 26-year-old, Viktor Orban, spoke at the ceremonial reburial of Imre Nagy and other leaders of the 1956 anti-communist uprising. Orban called for free elections and the withdrawal of Soviet forces from Hungary.
Today a very different Viktor Orban is Hungary’s prime minister. He tells us that Europe’s post-war liberal consensus “is now at an end.” He proclaims Hungary to be an “illiberal democracy.” Orban sees himself as a buffer against migrants, George Soros and bureaucrats in Brussels.
Orban’s journey represents a remarkable transformation, rooted in political opportunism. It also tells a story of how the historic transition to democracy in Central and Eastern Europe — which seemed irreversible a decade ago after 10 former communist countries had joined the European Union — is starting to unravel.
In 2010, Orban’s political party, Fidesz, won a general election. Fidesz captured two-thirds of the seats in Parliament, giving it the power to amend the country’s constitution. In the ensuing years, Orban has consolidated power by dismantling the constraints of liberal democracy. He has eroded checks and balances, undermined the independent media, and subjected the Constitutional Court to the party’s control. Partisan gerrymandering helps Fidesz, and favors to the party’s friends have brought crony capitalism to Hungary.
After communism’s collapse, Poland, like Hungary, was regarded as a success story of post-Cold War democracy. But recent years have seen the rise of the Law and Justice party. It gained a parliamentary majority in 2015.
Poland’s new leaders see Poland as an “illiberal democracy.” Thus, Law and Justice packed the Constitutional Court, purged public broadcasting of “disloyal” journalists, undermined checks and balances, and restricted the activities of nongovernmental organizations (NGOs).
Law and Justices gains sustenance from cultural politics. Denouncing the godless, cosmopolitan values of Brussels, the party sees itself as defending conservative Polish traditions and morality.
History weighs heavily on public life in both Hungary and Poland. Hungarians still resent the Treaty of Trianon (1920), when Hungary, on the losing side in World War I, lost two-thirds of its territory. Poles have not forgotten that the great powers (Prussia, Austria and Russia) partitioned Poland in the 18th century. In the 20th century came the Nazis, followed by Soviet occupation. A popular history of Poland is titled “God’s Playground.”
Developments in Hungary and Poland highlight trends felt in many places. One manifest force is nationalism. Nationalists are angry. They feel the need to control a nation’s own life. They believe that a nation’s true essence emerges from its own history and culture.
Populism is the handmaiden of nationalism. Populists attack “enemies of the people. “ Populist politicians rail against corrupt elites, dangerous immigrants, conniving media and sinister conspiracies.
Especially dangerous is the rise of authoritarianism as an alternative to the liberal state. Earmarks of authoritarian regimes include the rejection of checks and balances, control of key sectors of the media (both public and private), and suppression of NGOs that are focused on human rights. Even the rule of law is bent to political advantage. Vaguely written laws and subservient courts are used to punish the regime’s opponents (Turkey has a law against “insulting Turkishness”).
The result, here and there, is democracy under siege. Constitutional government reached many countries after World War II. But in recent years there has been a disturbing pattern of retrenchment in some places. Repressive countries — China, Russia — have become more repressive. Some democratic states — Hungary, Poland — have become “illiberal democracies.”
As Americans celebrate our long-lived legacy, we would do well to mull the fundamental principles that define liberal constitutional democracy. Some of these principles have their root as far back as Magna Carta. Constitutional principles travel across time; they are reinterpreted by successive generations. Constitutions are contextual; they are shaped by history, culture and politics.
Liberal constitutional democracy is not inevitable. Our ideals have to be continually defended and fought for. Their grounds must be constantly re-examined and rearticulated. Read Virginia’s Declaration of Rights, where it says that the blessings of liberty can only be secured by a “frequent recurrence to fundamental principles.” This is an apt admonition, not just for national holidays, but for every day of the year.