This chapter builds on the assumption that constitutional references to the historical constitution can contribute to the community building process in Hungary. While this assumption itself might be contended, this paper puts aside the question of whether the Hungarian historical constitution could be revived in legal terms or whether it could have legally binding force in any way. Instead, it will approach the question from a non-legalistic point of view and consider whether references to the Hungarian historical constitution might be useful and desirable from the perspective of community building. To put it briefly, this chapter contends that it might be useful and desirable but only under certain circumstances. Unfortunately, whether these conditions prevail can only be established retrospectively.

Throughout history, reference to the historical constitution of Hungary was used to achieve different and sometimes conflicting goals. Since 2012, it has become a constitutional concept after decades of abandonment. It appears in the Fundamental Law of Hungary (2012) and the jurisprudence of the Hungarian Constitutional Court (HCC) – linking it to the concept of constitutional identity. This chapter claims that the narrative of the Hungarian historical constitution as a constitutional concept is conducive to illiberalism. This is because political and constitutional actors have used it to oppose liberal values. Two arguments justify this claim. First, the contemporary claims on continuity and rights expansion cannot be verified when we contrast the contemporary narratives on the two most important constitutive components of the historical constitution, that is, continuity and rights expansion with legal measures introduced in the second part of the nineteenth and the first half of the twentieth centuries. Second, the relevant jurisprudence of the HCC suggests that the finality of introducing the historical constitution into the constitutional text and their subsequent linking to the concept of constitutional identity was to secure the traditional Westphalian understanding of ethnic-national sovereignty, mainly against the rule of law, that is, EU obligations and globalization.

The constitution in the material sense is not particularly popular among lawyers. As its conceptual predecessor (the doctrine of the historical constitution), the constitution in the material sense points toward a series of non-specified norms relating to the basic structure of government and to the relationship between citizens and the state. As such, it lacks the certainty often associated with legal rules. In this chapter, we will focus on two judgements of Latin American constitutional courts where, by relying on a specific conception of the material constitution, judges sought both to define the competence of the amending authority and to challenge the judicial imposition of implicit limits to the power of constitutional reform.