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4.06.2011

Arato on Constitution Making in Hungary and the 4/5 Rule

The worst thing about the current constitution making process in Hungary led by the FIDESZ government is the process itself: under an opposition boycott, and involving an absurd process of popular consultation through sketchy and deficient mail in citizen questionnaires, it lacks all genuine aspects of participation and inclusion. Not only is the process illegitimate however, it may also be illegal.

At issue is the abolition of a rule , art 24 (5 ) of the constitution, requiring that the detailed rules for making the new constitution be passed by the votes of 4/5 of all members of parliament, by using article 24 (3) that required only a 2/3 vote of all members for passage. Admittedly, 24 (5) was not codified in a self referring manner. But the best interpretation of a such a rule is nevertheless in terms of implicit self-reference, since the rule would be meaningless if it could be by passed in a two step fashion. It would then mean that parliament makes the rules by 4/5 unless it chooses to do so by 2/3. Neither the German Grundgesetz unchangeable clause of Art. 79.3 or the entrenchment of the Senate in Article V of the U.S. Constitution are codified with a self-reference, yet they are always so understood.


It is also true, that 24 (5) was intended by the parliament of 1994 to be accompanied by a sunset clause, preposterously enough. But through the error of codification, sunset was mentioned only in the accompanying legislation, not put in the constitutional amendment text itself. That legislation indeed had the sun set on it, along with the detailed and indeed very fair rules of constitution-making enacted under it. But the clause itself stayed in the constitution, and its valid presence is shown by the fact that FIDESZ instead of disregarding it as a law on which the sun has set, chose to amend it out of existence. Such an amendment of a 4/5 clause by a 2/3 law, however, is prima facie invalid.

Why has the opposition not gone to the Constitutional Court? There may be the matter that the Court has been very reluctant to undertake prior abstract review in general, and matters of standing would have to be resolved. But the biggest problem is that in spite of its very early jurisprudence this Court has pronounced itself incompetent in the manner of constitutional amendments. This it has done with the bad Kelsenian or pseudo-Kelsenian reasoning that since an amendment is part of the constitution, it cannot be judged in terms of the constitution. Even when applied to posterior review, this argument seems strained and fallacious. It could easily have been said that an amendment is not fully part of the constitution until it has been tested and validated. It seems beyond belief that such an argument could exclude procedural review of amendments as in this case, and it should be said that previously it has been applied by the court to claims against the substance of amendments.

I would suggest that instead of concentrating on arcane matters like the issue of holy crown that will have little significance, or demanding a referendum that FIDESZ may very well win for this pitiful little constitution we should focus on the illegitimacy and illegality of the process that produced it. While the challenge of the constitutionality of the abolition of the 4/5 rule involves technical matters, it would actually highlight the difference between authoritarian and consensual, inclusive methods of constitution making. If it is true that the current constitutional plan involves a fundamental attack on the Constitutional Court and especially its accumulated legal heritage, the members of that Court should be invited into the process to defend that important heritage. The only way to do that is to challenge the legality of the process.

Since there is still time for the legal challenge, I believe international legal opinion has an important role to play in this matter.

--Andrew Arato, New School


17 comments:

  1. I'm not competent in Hungarian Constitutionalism, but the interpretation of US const. art. V is not as settled as you suggest. In fact, every possible reading of Art. V would allow the restrictions on amendments to be amended out through a normal amendment process.

    The only way to fight that conclusion is through the absurdity doctrine that you hint at above, by suggesting that something like art V has no purpose if it's not self-referential.

    However, especially in the United States, with its long and arduous amendment process, requiring two amendments instead of one to do something is a significant effect all on its own. Combine that with the persuasive force of the existence of art. V, and it's clear that a non-self-referential amendment restriction is far from absurd. And, since the plain reading of the text doesn't lead to an absurd result, we're bound to it.

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  2. Eventually there had to be someone who argued this posiiton.

    the plain text says: "provided that...no state without its Consent, shall be deprived of its equal Suffrage in the Senate" So are we to read it as, unless the House, Senate by a two thirds vote, and 3/4 of the states deprives a state of this ability? i think this would be absurd, in terms o the text and structure of the whole constitution, as well as the deeper idea of federalism it embodies.

    You are right though. the 2/3 , 3/4 rule is so difficult, that this issue is never going to be tested. so who is right, it is academic. It is otherwise with 79 3 of the Grundgesetz with its easier amendment rule.. Or are you not expert in interpreting that, either. Ok then. The immense majority of interpreters think that it entails implicit self reference. Finally, let me refer you to Peter Suber's Paradox of Self amendment on this question, the authoritative work. it is not customary in the US perhaps to count scholarly sources as authoritative, but maybe in a case like this without any judicial test....

    Really, finally, I would advise anyone making a constitution to explicitly self refer as in south Africa's 3/4 provision or Russia's more difficult part of the amendment rule. Just in case this issue is raised by those who are excessively formalistic... But not because there is no such thing as implicit self reference.

    QED

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  3. I tried to refute this in a previous comment, but inexplicably it did not appear.

    i think it is a waste of time to go through the whole thing again.

    So i refer the author to the relevant commentaries of art 79 3 of the Grundgesetz, and to Peter Suber's paradox of self amendment.

    As non self referential, the clause would be pathetically absurd. To say that the 2/3; 3/4 rule protects it sufficiently is true, but not true for Germany or Hungary.

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  4. Oh yes, and for the sake of the excessively formalistic I alwyas would recommend explicit self reference. This does not negate the existence of the implicit kind.

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  5. Like I said, I'm not addressing non-US law because I don't know enough of it to speak with a reasonable degree of certainty. But there's nothing absurd or paradoxical about a non self-referential Article V, and where the result isn't absurd we have to go with what the text actually says, which is that any part of the Constitution, except for irrelevant exceptions, cannot be amended. (The fact that they excluded certain clauses from amendment but didn't exclude Article V is even more conclusive evidence that Article V may be affected by constitutional amendments.)

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  6. "What the text actually says" in the case of the U.S. Constitution or any constitution implies that it interprets itself, which is impossible. Now an interpretation that is prima facie absurd, cannot be what the text actually says. In this case the text neither says that it is under its own strictures or is not. If it were not, that would be absurd. So the only reasonable meaning of the text that it contains implicit self reference.

    Logically this is an independent question from the subsequent history of article five. If the framers thought that there was no chance because of federalism to deprive a state of a seat in the senate, the clause was really superfluous. they did not think it was. Now waht was the point of letting the same thing happen in a two step process? No point at all. We cannot assume that they did these things for no point at all, or that the meaning of the text is, that it has no meaning.

    I consider much more interesting the position maintained Frank Michelman, that even the powers of the Senate, not only its composition were perhaps fundamentally entrenched by this clause.

    note also that the 18th amendment was unsuccesfully challenged on the bases of this clause. These are the real issues around the U.S. fundamental entrenchment, since all the codified forms imply something more than waht they say.

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  7. "In this case the text neither says that it is under its own strictures or is not."

    On the contrary, the text makes clear that Article V is subject to amendment. It says:

    "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

    An amendment that purported to change the amendment procedures would be "valid to all Intents and Purposes as part of this Constitution" once the procedural requirements are met, provided that it doesn't deprive a state of its equal suffrage in the Senate, which it would not.

    As we both agree, given this clear textual command, the result must be absurd in order to not be accurate.

    You claim that the absurdity comes from the fact that it would render the prohibition on changing the Senate pointless. I agree that if the interpretation did render a clause meaningless, it would be incorrect. However, it does not.

    Requiring a two-step process does provide substantial protections, not just illusory ones. First of all, it requires the states and Congress to vote directly on the relevant question ("Should amendments be able to affect representation in the Senate?") rather than implicitly wrapping that question into a different votes (say, "Should we prevent a Senate seat vacated by impeachment from being filled until the next time it would be up for election?") An affirmative answer to the second question would arguably be in violation of Article V, but it wouldn't be as explicit an assault on the structure of the Senate, and would provide not insignificant political cover as compared to an explicit repeal of the Article V restriction.

    Second, the two-step process significantly slows things down, and allows more citizen involvement - potentially even recalls and new elections.

    Third, the very fact that something is in the Constitution is a significant rhetorical tool in support of its continued existence. People are much less likely to support a repeal of the Article V prohibition than they would be, without it, to get rid of equal representation in the Senate that was only provided for in Article I.

    Finally, there's another comparable two step process built into the Constitution: the veto. If the second step is meaningless, why do we allow Presidents to veto bills that secured a supermajority on first passage? (Alternatively, why do countries that only require a simple majority for veto-override even have a veto?) It's because the second step is not meaningless: it significantly slows down the process, is a rhetorical tool, and often will convince people to change their votes.

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  8. It does not slow down the process because the amendment could have two parts. If at a Convention it could be done as part of a single package.

    the comparison to the veto override is absurd, because first it is 50% + 1, second it is veto, third it is 2/3. I.e. the same act is not repeated.

    Denial that things can be implicit would, finally, wreck havoc with your beloved text. Think if Washington and Hamilton read it that way when they set up the government.

    But please take the last word, I think this is obvious, and noone else seems to be interested at all, since art v. is such dead business to begin with.

    Good thing that noone in Hungary will cite you as the noted constitutional scholar xyz who has proved that it is just fine to amend a 4/5 rule by 2/3.It takes no knowldge of Hungarian law to know that such a thing cannot be right.

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  9. P.S. I cannot stop myself. Are you actually hoping that equal representation in the Senate will one day be removed by a two step procedure, that the required number of state legislatures will vote for it, or a Convention will be called to do it, change the rules of ratification, and the Supreme court will allow this?

    and if not, why are you unwilling to at least read the theoretical literature on the subject, e.g. Peter Suber?

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  10. Yes, I oppose the continued existence of a part of the legislature based on unequal representation for individuals. I also don't think that any written document, or portion of a written document, can ever be a legitimate ruling document if it is not subject to change. Beyond legitimacy, no ruling document can maintain authority in the face of significant public opposition. I would rather that, when the time comes, change happen through a political and orderly process than through either ignoring the constitution or completely overthrowing it.

    As for why I won't read an entire book in order to continue this discussion: perhaps I'll read the book, at some point. But at the time when I'm reading 200-250 pages of academic work every week, in addition to everything else I'm doing, and I've got three books already on the "when I have time" reading list, I'm not going to pick up a new one based off of a single recommendation in order to discuss a constitutional issue that, while I care about, is nowhere near the most important thing in my life.

    If there are arguments from the book that you think bear on this discussion, feel free to use them. Or even direct me to a chapter of the book (which I'd probably be willing to read.) But please don't try to give me a reading list as a prerequisite to discussing this issue. I hope you understand.

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  11. Ok. Let us forget the formalities and especially readings then. I agree, a better federalism would not be so disproportional in the upper chamber.

    The time argument though is a red herring. A convention, or Congress for that matter could pass a multiple amendment package at one time of which 1. would amend v. by removing the higher entrenchment and 2. or n. would reorganize the senate as you and I wish.

    Then we are either ready to litigate, and see if a Supreme Court buys this. It may...though i say it ought not.

    Or we do not take that chance and in clause n+ 1 we remove its jurisdiction from all amendments explicitly.

    One of the states then sues anyway, and then if the Court does not buy the whole thing, we either obey or have the second civil war with up to12 states on the other side. Worth it?

    The point of these forms of entrenchments and self entrenchment is to put such questions off the table. I agree they should not be conceived as eternity clauses more or less. Do you accept entrenchment at all?

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  12. "The time argument though is a red herring. A convention, or Congress for that matter could pass a multiple amendment package at one time of which 1. would amend v. by removing the higher entrenchment and 2. or n. would reorganize the senate as you and I wish."

    This would be of extremely doubtful legality. Amendment 2 would have to be passed under the new amendment procedure established by Amendment 1. Even if the procedural requirements of Amendment 1's amendment scheme are identical to those of Article V, we effectively have a new amendment process. Since constitutional amendment currently has (and presumably would keep) a two step process (proposal and ratification) both proposal and ratification of Amendment 2 would have to occur after the ratification of Amendment 1.

    "Or we do not take that chance and in clause n+ 1 we remove its jurisdiction from all amendments explicitly."

    That would be a not-smart thing to do.

    "One of the states then sues anyway, and then if the Court does not buy the whole thing, we either obey or have the second civil war with up to12 states on the other side. Worth it?"

    This is a severe and unlikely hypothetical. And, of course, it doesn't speak to anything special about the amendment procedure. Anything of controversial constitutionality could just as easily lead to a civil war. There's no reason to think that a Senate-amendment would. (In fact, of all constitutional controversies this is probably *least* likely to cause a war, since the states which were most pissed off would be the small states.)

    "I agree they should not be conceived as eternity clauses more or less."

    How is what you're proposing (that Article V can never be amended) make it not an "eternity clause"?

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  13. Let me just say that that what you just said is absurd. I dont have to be for eternity clauses (I am not) to recognize one as such (or almost such, because unanimity is not = to eternity). But I prefer South African 3/4 to German eternity. Or Spanish two level amendment clause. Do I think German eternity is not there? No. Do I think it is not implicitly self-entrenched, also I do not, though it has not been tested.

    Oh, I forgot, it is not only that you dont read, you also dont know about other constitutions. fine. Just wait then for the two step, temporally separated amendment of Art V. Pleasant dreams.


    Again all relevant opinion, including the ones on your side, says that the two step procedure of de-entrenchment can be done in a single package.

    But you wont read, only talk.

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  14. Cont. just to illustrate. A package can be composed of separate amendments. the Bill of Rights e.g. was a single package. Let us assume amendment one then removes the entrenchment. Amendment two removes one senator fro each state uner x population, the 5 smallest.


    Congress passes each by 2/3 on the same or successive days, or a convention does. State legislature ratify each on successive days, or date conventions do, eventually the required 3/4. Where is the famous time delay that protects the clause?

    That's waht I mean that without implicit self entrenchment the clause is non sensical.

    DO I THINK THAT IT IS A GOOD THINK TO HAVE A GROTESQUELY MALAPORTIONED SENATE, AND AS A RESULT BAD EFFECTS FOR THE FAIRNESS OF EVEN THE OTHERWISE ALSO BAD ELECTORAL COLLEGE PROTECTED BY AN IMPLICITLY SELF ENTRENCHED UNANIMITY CLAUSE? NO I DO NOT.

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  15. Even as i got really angry, i realized that I was partially wrong about the US case, but only that case. But this is a point you did not make.

    the U.S. rule is neither eternity nor unanimity. It says only that the 3/4 must include the state that is targeted, that would lose a Senator say. Now if it is not done as a package, this rule cannot be duplicated when there is an attempt to remove the entrenchment. Who knows who that state would be. But the rule does not call for unanimity or unalterability. So if 2/3; 3/4 wish or remove the entrenchment ther eis no implict rule in their way, otherwise than in the Geramn 79 3, or the Hungarian 24 5 iI discusses.

    If presented as a package, it would be unconsitutional to remove the entrenchment in a first amendment, unless the targeted state in the second agreed.There the implicit entrenchment would work.

    All this is a function of the very special way article V is formulated, not raising the % actually but requiring a special consent. That was not my issue in Hungary.


    The reason howeve is not the plane or clear meaning of anything, but the impossibility of implicit self entrenchment in a case such as this one.

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  16. "I dont have to be for eternity clauses (I am not) to recognize one as such (or almost such, because unanimity is not = to eternity)."

    Perhaps our misunderstanding here is due to unclear wording on your part. "I agree they should not be conceived as eternity clauses more or less" suggests that you think they shouldn't be interpreted as eternity clauses, not that you think they are eternity clauses but that such clauses are a bad idea.

    "Oh, I forgot, it is not only that you dont read, you also dont know about other constitutions. fine. Just wait then for the two step, temporally separated amendment of Art V. Pleasant dreams."

    I'm not sure what is prompting your attacks here. I'm sorry that something has made you so upset as to resort to petty attacks rather than substantive discussion.

    As to your suggestion that such an amendment of Article 5 will never happen: perhaps. It certainly won't happen soon. But...so what? I never claimed that such a process is politically feasible, merely that it would be constitutional and desirable.

    "Again all relevant opinion, including the ones on your side, says that the two step procedure of de-entrenchment can be done in a single package.

    But you wont read, only talk."

    You seem to have an issue that's common among scholars - and that I sometimes fall victim to as well - to think that just because you once read something that's relevant to a discussion, no one else has the right to discuss that thing again until they've completed the reading list you supplied.

    It's the worst kind of petty arrogance, because all it ends up doing is accenting one's own inability to synthesize sources and present original arguments.

    "Where is the famous time delay that protects the clause?"

    It is found in the fact that the proposal of the second amendment before the first was ratified would be unconstitutional. The second amendment would have to be proposed under Article V, which it couldn't be (since it affected equal representation in the Senate.)

    "DO I THINK THAT IT IS A GOOD THINK TO HAVE A GROTESQUELY MALAPORTIONED SENATE, AND AS A RESULT BAD EFFECTS FOR THE FAIRNESS OF EVEN THE OTHERWISE ALSO BAD ELECTORAL COLLEGE PROTECTED BY AN IMPLICITLY SELF ENTRENCHED UNANIMITY CLAUSE? NO I DO NOT."

    I'm really not sure why you're shouting to disclaim a position that I never said you held.

    "But this is a point you did not make." "The reason howeve is not the plane or clear meaning of anything, but the impossibility of implicit self entrenchment in a case such as this one."

    However, what you lay out in the middle there is exactly the plain meaning argument I've been making. As I said multiple times above, an amendment removing the restrictions on amendments would not fall under any of the extant restrictions on amendments, and so there's no reason it couldn't pass.

    It's true that I didn't refute your specific interpretative problem, but that's because I was never clear on exactly what part of Article V you weren't reading correctly (and you made it sound like you were making more of a general absurdity argument, rather than missing the fact that, by the text, an amendment to Article V faces no special hurdles.)

    Finally, as I've said before, I don't claim to be an expert in Hungarian constitutional law (shocker, I know - how dare anyone not read enough to become an expert in Central European constitutional law?), and I make no claims about whether you're correct or incorrect in Hungary. Just that you were incorrect as a matter of US law.

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  17. Which you argued for the wrong reason. And you are still wrong. the U.S. Article V says nothing about "proposed" unlike the Constitution of Turkey (not in Central Europe, by the way).

    Here is waht art V says:"and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate"

    so the second amendment actually depriving states of equal representation can be proposed, and passed initially as a recommendation by 2/3 to the states as part of an amendment package. Once the states then abolish the entrenchment, then a state can be deprived in the second amendment that is passed.

    This is waht is unconstitutional in my view because of implicit self entrenchment. And it is bad news for you, because the more likely route (totally unlikely of course) would be a convnetion, that perforce would pass a package of amendments. And that would be unconstitutional in this case. Under the veil of ignorance many more states would be against this, then when the target(s) is(are) known.

    Note you dont even recognize that I solved your problem previously, why a dis-entrenchment would be constitulional if not part of a package.

    You are not only exremely rigid, but also very ungrateful. You have been taught by someone that this is the case, that 2/3 can dis-entrench and believed it. You never knew why, and came up with this clear meaning nonsense. I finally figured it out (I dont say for the first time ever). And you dont even take note.

    These are my last words in this debate except that, no, i really dont want you to learn anything about Hungary. We are in trouble, but dont really nneed your help. You seem to have a single fixation, and should definitley stay with it forever. How old are you 28? You have time then.

    I am about 40 years older and just ran out of time for this that I never should have participated in to begin with. Noone else gave a damn.

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