American Democracy in Context. Joseph A. Pika

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СКАЧАТЬ in Hungary

      How can a democracy handle a democratically elected government that intends to change the constitution in ways that make the country a less viable democracy? After the fall of Communism in 1989, Hungary embraced democracy and capitalism. But in the country’s April 2018 parliamentary election, the right-wing coalition government led by Prime Minister Viktor Orbán won its third consecutive two-thirds legislative majority since 2010. That two-thirds majority is significant, because that is what it takes to amend the constitution in Hungary. Orbán, who in 2016 had been the first global leader to endorse Donald Trump’s candidacy for president of the United States, ran on a vigorously anti-immigration platform in 2018. In 2015, Orbán had built a wall along the border between Hungary and Serbia in the name of border security and to prevent asylum seekers from entering Hungary. Once reelected, he secured legislation in 2018 that criminalized any attempts by individuals or groups to help illegal immigrants claim asylum, as well as a controversial constitutional amendment that prohibited foreign nationals from outside Europe (any “alien population”) from settling in Hungary.

      That 2018 amendment was the seventh to Hungary’s 2011 constitution (itself written by Orbán and his coalition), and Orbán promised more would come. Each had been secured by a two-thirds party-line vote of parliament. Earlier (equally controversial) amendments had weakened the power of Hungary’s Constitutional Court (the equivalent of our Supreme Court) by limiting judicial independence and the Court’s power to interpret laws; curtailed religious liberty by declaring that the government has a fundamental duty to protect Christian culture and granting Parliament the sole power to decide which religious organizations count as churches; and helped to solidify Orbán’s ruling coalition by banning political advertising in any venue except the state media (which happened to be controlled by Orbán’s Fidesz party)—an action the Constitutional Court had previously declared unconstitutional when passed by ordinary legislation.

      Such amendments were condemned by the opposition party within Hungary, and led to protests in the streets of Budapest, but—unlike amendments to the U.S. Constitution—Hungary’s amendments did not require ratification beyond passage in parliament. Critics claimed the amendments were a threat to democracy and human rights, yet they were passed by super-majorities of Parliament whose ruling coalition had won resounding victories in three democratic elections.

      Questions to Consider

      1 How important is the balance between majority rule and minority rights? Does Hungary’s method of constitutional amendment achieve that balance?

      2 What would be the consequences if the U.S. Constitution could be amended by a two-thirds vote of Congress without the need for ratification by the states?

      3 What impact might Hungary’s mode of constitutional amendment have on separation of powers? The rule of law?

      4 Hungary’s constitution has no separation of church and state. Is that good or bad? Why?

      The Formal Amendment Process

      As specified by Article V, the process of amending the Constitution consists of two stages: proposal and ratification. As shown in Figure 2.7, proposals can be made in either of two ways:

       by a two-thirds vote of both houses of Congress or

       by a request to Congress from two-thirds of the state legislatures to call a convention to propose amendments.

      To date, all 33 amendments were proposed by Congress. The alternative route—a convention convened by a vote of the state legislatures—poses several problems. The Constitution does not specify how delegates to the convention should be chosen, how many delegates there should be, or what rules such delegates should follow. In addition, such a convention could presumably introduce as many amendments as it wanted. The last time we had a convention, in 1787, we ended up with an entirely new constitution. Fears that another convention could lead to similarly radical change, together with uncertainty about the mechanics of such a convention, make amendment proposals by Congress a safer and easier option.

      Description

      Figure 2.7 The Constitutional Amendment Process

      Whether proposed by Congress or a convention, amendments must then be ratified by the states. Like proposals, ratification can come about in either of two ways (with Congress specifying the method for each amendment proposed):

       by a vote of three-fourths of the state legislatures or

       by a vote of three-fourths of specially convened state ratifying conventions.

      As of 2019, only one of the 27 amendments ratified—the Twenty-First Amendment, repealing prohibition—was ratified by state conventions. In that case, Congress predicted that passage by state conventions was more likely than passage by conservative state legislatures.

      Only one constitutional amendment has been passed to repeal another: the Twenty-First Amendment, which ended Prohibition. It was also the only amendment to be ratified by state conventions rather than state legislatures.

      George Pimentel / Getty Images

      Informal Methods of Constitutional Change

      In addition to changes to the Constitution through formal amendment, changes—subtle and not so subtle—have come about as a result of interpretation by the other branches of government. We usually think that such interpretation is done by federal courts, particularly the Supreme Court, but Congress and the president also share a role in interpreting the Constitution. The ambiguity of so much important constitutional language makes interpretation essential.

      Judicial Interpretation

      The Supreme Court engages in judicial interpretation in the course of exercising its power of judicial review—that is, its power to strike down acts of government that violate the Constitution, the supreme law of the land. To decide whether an act violates the Constitution, the Court must, of course, interpret relevant constitutional language. For example, weighing the constitutionality of a law providing for the death penalty in serious criminal cases requires the Court to determine what is meant by the Eighth Amendment’s ban on “cruel and unusual” punishment. Even if the Court determines that the death penalty itself is not cruel and unusual, other questions may arise: Is it cruel and unusual to execute children or the mentally disabled? Answers to such questions may change over time as the national consensus evolves and membership of the Court changes, even if the Constitution itself is not formally amended.

      Judicial review is an important way of enforcing the rule of law—the idea that government is limited in its actions by the nation’s constitution. Despite this vital function, judicial review was not a power specifically granted by the Constitution. Rather, it was established by the Supreme Court in the 1803 case Marbury v. Madison⁴⁹ (see Chapter 14).

      Ambiguous constitutional language complicates the task of judicial interpretation. For example, the Fourth Amendment bans “unreasonable searches and seizures,” but what exactly does that mean? Judges disagree not only about what the word unreasonable means but СКАЧАТЬ