CONSTITUTIONS AND CONSTITUTIONALISM IN
CENTRAL AND EASTERN
EUROPE
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A. E. Dick Howard
Fundamental changes in the social order often furnish the occasion for rethinking basic political
institutions. In modern times the precepts of a society's basic aspirations and tenets typically take the
form of a written constitution. In that document one expects to find the structure of government, the
process of lawmaking, the uses of and limits on power, and the fundamental rights of the people.
The past two centuries have witnessed the spread of constitutional democracy. Anchoring these
developments are the constitutional documents produced in the late eighteenth century, among them the
Constitution of the United States (1787) and the first Polish and French constitutions, both written in
1791. Subsequent highlights have included the liberal constitutions of the early nineteenth century
(such as the Spanish Constitution adopted at Cadiz in 1812), the principles articulated in the
revolutions of 1848, the emergence of new states after World War I (featuring Hans Kelsen's influence
on the Austrian and Czechoslovak Constitutions), and the emergence of stable democracies in Europe
after World War II (a key document being Germany's Basic Law, adopted in 1949).
The collapse of Communism in Central and Eastern Europe has brought another such period of intense
constitutional development. Hoping for the advent of constitutionalism and democracy, drafters in the
region have embarked on the writing of new constitutions and bills of rights and the creation of the
infrastructure of an open, just, and democratic society based upon rule of law. Recalling the example
set by the Philadelphia Convention of 1787, one might imagine C./E. Europe to be entering upon its
"Madisonian moment."
The Drafting of New Constitutions in Central and Eastern Europe
The road to constitutionalism in the region has proved a good more rutted and uneven than the initial
enthusiasm had supposed. The drafting of constitutions -- not to mention the larger task of building
democratic institutions -- is not an academic exercise, undertaken with a few books of political theory
at one's elbow. Significant political and practical problems have strewn the path of drafters who have
set to work on new constitutions in the region.
Existing governmental structures, those already in place when constitution-making began, have proved
to be an important factor in at least some of the countries of Central and Eastern Europe. Especially is
this true where those institutions were established when political circumstances were quite different (for
example, during the period of Communist dominance).
Czechoslovakia presents a case in point. The structure within which constitutional change was debated
helped bring about the dissolution of the federation. A 1968 amendment to Czechoslovakia's
Constitution created a Federal Assembly having two houses: a Chamber of People, elected by Czechs
and Slovaks on the basis of population, and a Chamber of Nations, having equal numbers of deputies
from the Czech and Slovak lands. The 1968 amendment further provided that, as to important
legislation, a majority of the deputies from each of the two constituent republics in the Chamber of
nations must concur for the bill to become law.
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Dr. A. E. Dick Howard is the White Burkett Mill Professor of Law and Public Affairs at the University of Virginia.
CSCE ODIHR BULLETIN Vol. 2, No. 1
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