National Constitutional Identity in the European Constitutional Project: A Recipe for Exposing Cover Ups and Masquerades

von Renáta Uitz

On November 8, 2016 the Hungarian Parliament did not adopt the Seventh Amendment of the Fundamental Law seeking to protect Hungarian constitutional identity in the face of European imposition. The Seventh Amendment fell 2 votes short of the 2/3 majority required for a constitutional amendment (Article S(2)).[1]

The Seventh Amendment was meant to cover up the minor scratch on the Government’s pride caused by lack of popular support for its relentless fight against the EU. The constitutional amendment was a desperate move to salvage an unexpected defeat in a referendum of October 2, 2016 on the “imposed settlement of migrants,” to give effect to the will of 3.3 million Hungarians who voted in favor of the Government’s project. While 3.3 million sounds like a lot of votes, the said referendum itself was not successful as the turnout was below 50 per cent. To be clear: at the time of the referendum on migration the idea of the constitutional amendment to defend Hungarian constitutional identity was not on the table.

Although the Seventh Amendment to defend Hungarian constitutional identity did not pass, supporters of European constitutional projects cannot afford to sit back and relax. It may well be that what we are witnessing is a moment of calm before stronger than ever national constitutional identity claims take the European constitutional project by a storm to shatter its very foundations. Extended political negotiations in the EU leading to legal measures on technical issues (such as the refugee crises) are a most suitable format for cultivating the seeds of previously unseen constitutional identity arguments in a new setting. The hubris of the post-Brexit reality will make the scene ever more chaotic, and thus suitable for testing new ideas (as if to see if they gain traction by accident) ...

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