Formalism or a Third Way to Reconcile the Value of Written Law and Constitutionalism? An Example of the Constitutional Court of Hungary

Abstract

The article titled “The Formalist Resistance to Unconstitutional Constitutional Amendments” by Richard Albert, Malkhaz Nakashidze, and Tarik Olcay identifies three countries and the practices of their respective constitutional courts that, until now, have rejected the doctrine of unconstitutional constitutional amendments. After a detailed analysis, the authors conclude that, through different theoretical means, all three courts studied decided not to apply the delegation theory of constitutional change; therefore, they consider that no constitutional amendment can be unconstitutional on substantial grounds. This study aims to demonstrate that there is a counterweight to the tendency, which seems to be more and more global, of adopting the doctrine of unconstitutional constitutional amendments, which is worthy of the attention of the academic community. Besides reaffirming this conclusion, the present article looks more into the depths of “formalism” as a possible reason behind the rejection of the doctrine of unconstitutional amendments, indicating that there might be a category other than the ones from France, Georgia, and Turkey. The Hungarian case represents a practice committed to the normative textual limits in its constitution regarding the constitutional review of amendments, which, at the same time, tries to reconcile the value of written law with the protection of the supremacy of the constitution, constitutionalism, and the rule of law.