My colleagues and I talk a lot about the need for fidelity to our founding document, in part because any power the federal government exercises that’s not listed there is illegitimate and in part because our Constitution is an essentially libertarian (or classical liberal) document. And part of having a proper, Madisonian view of the Constitution is not to use foreign law to interpret it (or other domestic law).
But it is absolutely appropriate — and good practice — to look to foreign example and experience when drafting a new constitution (or even crafting new legislation). I find such occasions, when a country comes up with a new founding document — either because it’s a new nation (South Sudan), has undergone regime change (Iraq and Afghanistan recently, Eastern Europe in the 1990s, much of Latin America in the 1980s), or just because (France, periodically) — fascinating. I wrote my college thesis on comparative constitutionalism and now occasionally peruse the Comparative Constitutions blog (apparently there’s a blog, facebook page, or twitter feed for just about anything).
Which is all a long preface to introducing the new Hungarian constitution (English version here) — intended to correct some lingering deficiencies from the immediate post-Communist one. There are plenty of good things in this draft, which is due to be voted on by parliament on April 18 (and expected to be adopted due to the governing party’s majority). It moves in the right direction in many respects on property rights, economic liberties, government transparency, and an independent judiciary, but also contains provisions that would empower the state beyond what is suitable for protecting individual rights (property and otherwise) and provides weak institutional guarantees.
Marion Smith, president of the Common Sense Society (a free-market think tank in Budapest) offered a critique last week in the Wall Street Journal Europe:
The drafters and Mr. Orbán [the prime minister] have committed themselves to Hungary’s future economic sustainability, having already adopted a flat personal income tax of 16% and included a government-spending cap at 50% of GDP in the proposed constitution. At a time when national economies in Europe are collapsing left and right due to years of runaway public spending, Budapest is moving in the right direction.
But the proposed constitution also includes a series of second-generation rights and state objectives that will commit future governments to providing “adequate housing,” “access to work,” “sports,” public education and a state-run pension system to all Hungarians. Whereas natural rights (such as life, liberty and property) are rights that governments protect from infringement by others, positive rights (such as housing and leisure) are things that governments are expected to provide. This redefinition of the nature of rights necessarily and fundamentally alters the relationship between individual and the state and increases the scope of state power. The wealth redistribution necessary to provide these rights undermines the protection of private property.
Moreover, Smith notes, the government seems to get a trump card over private enterprise and civil society:
Their proposed constitution also enables future state intervention into private economic activity on the basis of ill-defined “community objectives.” Specifically, the current draft mandates: “Employees and employers will cooperate in the interest of maintaining the national economy, ensuring jobs and implementing other community objectives.” By including such broad provisions that could justify significant intrusions into private-market exchanges, the draft risks solidifying the sluggish economic policies of Hungary’s past.
The draft compounds these potential problems by providing weak and ill-defined checks on Parliament’s legislative and executive power. The text grants the Constitutional Court final-review power over fiscal, economic and property matters “only if the petition refers exclusively to the right to life and human dignity, the right to the protection of personal data, the right to freedom of thought, conscience and religion or the right connected to the Hungarian citizenship.” That restriction not only weakens an important check on Parliament, it also undermines institutional guarantees of individual liberty—including the right to acquire, possess and use property, as well as the right to appeal to justice if those rights are violated by citizen or state.
While the current Hungarian government, a center-right coalition between Fidesz (a sort of nationalist party that has migrated from classical liberalism to conservatism) and the Christian Democrats, might be good on economic freedom (if not necessarily other kinds), imagine what a future center-left/socialist government could do with the powers the new constitution grants.
Time to go back to the drawing board. And for Americans — whether Republicans, Democrats, libertarians, or “independents” — this is, as they say, a teachable moment.