🍻 Selber Bier Brauen

The future of human rights is here. That is, at least according to member states of the Council of Europe who today, in Chișinǎu, Moldova, have agreed on a new Declaration to reform the European Convention of Human Rights. In the UK, the Government has already argued that the document will future-proof the Convention and thereby end speculations about UK withdrawal from it. If true, that is quite an achievement.

The reform process, which was started in September 2025 by the Danish and Italian governments, has resulted in a new “interpretative declaration” – a document seeking to instruct the European Court of Human Rights in Strasbourg to allow states more flexibility in sending foreign criminals back to their countries, even when conditions are harsh, and in reducing the protections of family life. The document also asks the Court to provide room to states for “innovative solutions” to migration, including transit hubs.

The document runs to many pages – a result of the fact that each country has brought its own set of demands. Denmark insisted on the inclusion of limits on the protection of family life in expulsion cases. The UK and Italy proposed a reinterpretation of the prohibition of torture, inhuman and degrading treatment to ensure that foreign criminals can easily be sent back to their countries. Other countries have been focused on the instrumentalization of migration, the mass arrivals of migrants and the resulting problems in processing migration cases within the limits of European human rights law.

A Pick-and-Mix Declaration

As a result, as documents go, the Chișinǎu Declaration is a mixed bag: it contains a pick-and-mix of instructions to the Court on how it should reduce the current protections, relativize absolute provisions, and give states more leeway to do what they wish in various contexts. The document is also marred by repetitions, inconsistencies and contradictions. The independence of the Court is underlined in multiple places, whilst states provide strict instructions as to how the Convention should be understood in other places. In this regard, the declaration is a window into how diplomacy works when there is no agreement – each state brought its own shopping list, but there was no consensus, no uniform European policy on migration.

So, does the document as a whole really reform the Convention? The declaration only takes effect when it is used by the European Court of Human Rights in its interpretation of the relevant clauses of the Convention. But the Court has to have the opportunity to do so. Given that only 1,5% of the Court’s case law relates to migration, and that all of these cases have to traverse through domestic court first, we are likely to wait for years before an opportunity arises for the Court to give life to the Declaration. States could have, for example, asked the Court for an advisory opinion on protections in the field of migration, but they chose not to do so. Perhaps this is then mostly a signalling exercise to the Court to back off.

The problem with the current approach is that it changes nothing at the domestic level, where most migration decisions are made. That is, it will change nothing unless states themselves take (preemptive) action. Denmark, for example, has legislated in detail on how to handle expulsion cases and also floated a new law that builds on the new, stricter rules stemming from the Declaration. This means that Denmark is seeking to give effect to the Declaration even before it is applied at international level, reaping the fruit even before the tree has blossomed. The UK may wish to train domestic judges on the adoption of the Declaration and its potential to be used to interpret the Convention domestically. But such expectations might be premature: judges can reject such efforts as interfering with their independent function or underline the mere fact that the Declaration is not binding and has no force in law. Without legislative action, what was agreed at international level is then unlikely to have any bite at home.

Even when a case gets to Strasbourg, the question is whether the Declaration will have the desired effect, particularly as concerns the envisaged softening of the prohibition of inhuman and degrading treatment. Last week, the UN Committee Against Torture expressed concerns that efforts to reform the Convention were undermining the absolute nature of the prohibition of inhuman and degrading treatment. It criticised attempts to introduce a balancing exercise into the process of assessing whether a case amounts to inhuman and degrading treatment. States, it urged, should refrain from such attempts.

The Strasbourg Court is undoubtedly aware of the political context in which it functions and is likely to heed some of the instructions of states, particularly as concerns limits on the protection of family life in expulsion cases, a path the Court has already started walking down. The instructions concerning the prohibition of torture, inhuman and degrading treatment are different. Here, the Declaration tells the Court how to do its job, and it does so in respect of an absolute right, whose interpretation the Court considers to lie at the core of its function. What the future holds is thus still to be determined.

Chișinău as a Political Signal

Getting too legal and technical might, however, miss the real point of the Chișinǎu Declaration. The Declaration might better be understood as a stepping stone to hardening domestic stances on migration and creating a common political position. A window into a political reality where many governments fear that being soft on migration might lead to their demise at the next election. And a window into a political reality where human rights are treated as limitations on government action rather than individuals’ fundamental rights worthy of protection.

The post Shopping Lists and Steppingstones appeared first on Verfassungsblog.

This is the fifth election in a row in which a party has gained a two-thirds majority in Hungary’s unicameral parliament – and the first time it is not Viktor Orbán’s Fidesz party, but the newly emerged centre-right Tisza party led by Péter Magyar. A two-thirds majority has long been the magic of Hungarian politics. Namely, it means domestically unlimited power. Now, the new government will have all the means to change the fundamental constitutional setting in Hungary: to amend the constitution (or even adopt a new one), to appoint constitutional judges and other state officials, and to adopt and amend so-called “cardinal laws”. But the magic of the two-thirds majority is based on an assumption that has turned out to be a lie over the years: that such a special majority guarantees compromise. As a first step towards a truly functioning pluralist democracy, it is time to disenchant the two-thirds majority. In this blog post, I will show why and how.

The reasons for Tisza’s landslide victory are complex, but there are at least two obvious sets of voter motivations. One is practical, including economic difficulties, systemic corruption, and, alongside these, dysfunctional public services. The other is principled: Hungarians realised that after 16 years of rule-of-law backsliding under Fidesz rule, the country was standing on the brink of open dictatorship, and that this election was the last moment at which this could be reversed. That is why the most important task of the new Tisza government is to prevent Hungary from reaching this point again. The disenchantment of the “magical” two-thirds majority is a crucial element here. While a few of the most important decisions should be subject to stricter and more complex majority requirements, the vast majority of decisions currently requiring a two-thirds majority should instead be regulated by simple-majority legislation. These are the so-called cardinal laws.

What are cardinal laws and what were they used for?

Cardinal laws have existed since the democratic transition, although under the name of “two-third laws”. The original idea behind these special laws was to secure political compromise when regulating some crucial constitutional matters, such as the justice system, elections, parties, constitutional court, citizenship and so on. When Fidesz came to power in 2010, they kept these laws, renamed them as “cardinal law” and, additionally, they qualified several policy issues as cardinal as well, for example migration and asylum, pensions, or certain taxation rules, raising the number of cardinal laws above thirty.

Now, as two-thirds parliamentary majorities seem to have become the new normal in Hungary, it is time to realise that the rationale behind the magical two-thirds majority requirement has been a lie. Just like cardinal laws, since 2010 constitution drafting and amending does not require compromise anymore. Fidesz knew that but showed how seriously they took the need for compromise: they did not raise the majority requirements neither for cardinal laws, nor for constitution making and amending, but used their two-thirds legitimation to ignore any meaningful dialogue with the opposition.

The consecutive Fidesz-governments instead cemented their random policy preferences in cardinal laws expecting that a future government with simple majority would not be able to change them. Moreover, they also codified controversial fundamental rights restrictions in cardinal laws: this was especially apparent in the year preceding the 2026 general election. For instance, under the rhetoric of fighting “foreign agents” and combined with an amendment of Article G) of the Fundamental Law the justice minister was empowered in cardinal law (§§ 9/B and 9/C, inserted in 2025) to suspend the Hungarian citizenship of Hungarians who also hold the citizenship of a third country, if they “pose a threat to the public order”. Or, municipal communities received the right via cardinal law to determine who may settle in the locality and under what conditions. This is particularly controversial given that the meaningful competences and financial autonomy of local governments have drastically been cut by the Fidesz-governments.

Learning to make compromises without cardinal laws

The reason why two-thirds majority laws were perceived as the primary guarantee for compromise lies in the Hungarian electoral system. Since the democratic transition, Hungary has had a mixed system, where roughly half of MPs are elected in single-member constituencies (SMCs) according to majority voting, while the rest are elected from party lists under proportional representation: each voter has two votes, one for the candidate in their district and the other for the party list.

After coming to power in 2010, the Fidesz supermajority made some tricky changes to the system to make it more majoritarian and less proportional, and to favour the strongest party: the second round was abolished in the SMCs, so that a mandate could also be won by relative majority in the first round, and winning candidates also received compensatory votes on their party lists. Such an electoral system provides stable majorities, and it also helped Fidesz repeatedly turn its simple parliamentary majority into a two-thirds majority over the years. What they did not anticipate was that, at some point, Fidesz might no longer be the strongest party. Now it is the new strongest party, Tisza, that can benefit from these electoral rules.

Under these circumstances, where a governing party has no need to cooperate with others – not only in ordinary legislation but even on key constitutional issues – it is no wonder that Hungarian political culture has increasingly been characterised by deepening divisions, while the pursuit of compromise has practically disappeared. It is indeed desirable to encourage politics, especially at the legislative level, to seek compromise. However, as demonstrated above, cardinal laws have proven to be unsuitable instruments for that.

Instead, what would guarantee compromise (and, along with it, an improvement in political culture) is a shift towards a more proportional electoral system, where even a simple majority requires compromise within a governing coalition. Such a scenario would also make cardinal laws unnecessary. At this point, it is worth recalling that a two-thirds majority in parliament practically means unlimited power in the Hungarian constitutional setup. Therefore, one should always be wary when a single party holds such a majority alone – be it the national-populist Fidesz or the centrist-technocratic Tisza. The biggest test of the democratic commitment of the new Tisza government will be whether it is willing to dispel the magic of the two-thirds majority, which it also holds, by abolishing cardinal laws and creating a new, more proportional electoral system.

In a proportional setting, coalition governments will become the norm, and ordinary legislation will also require compromise between multiple parties. After the initial difficulties, such an arrangement could help transform hostility between parties, at least in part, into a more constructive form, and it would also have an important benefit for voters. They would no longer be forced to vote tactically, holding their noses, but could instead vote for their preferred party, thus allowing Hungary to move towards genuine democratic pluralism.

Whether or not electoral reform ultimately takes place, the large number of two-thirds laws makes little sense in either case. At the same time, precisely in order to protect the foundations of the democratic system from a potential Fidesz-rule 2.0, narrowly defined exceptions are needed. Moreover, the very concept of cardinality should also be reconsidered, so that special majority requirements are not defined solely within parliament, in terms of the number of MPs, but also involve additional sources of democratic legitimacy beyond parliament.

Matters that indeed require enhanced compromise – beyond parliament alone

First and foremost, the 15 constitutional amendments adopted in the 14 years since the entry into force of Hungary’s not-so-new Fundamental Law – many of them controversial and driven by the party-political interests of Fidesz – demonstrate that the current two-thirds threshold for constitutional change (and for adopting a new constitution) is too easily reached. Even if the electoral system were to be reformed to make it more proportional, decisions of this magnitude should be subject to more demanding safeguards. These need not be limited to higher parliamentary thresholds; they could also include confirmatory referendums or the establishment of a separate body, such as a constitutional assembly, to play a contributory role.

As for cardinal laws, three key areas stand out where genuinely enhanced compromise among political forces remains essential.

To avoid what has happened over the past fifteen years – namely, that the Constitutional Court has been rendered dysfunctional or even weaponised by the ruling party – the rules governing its composition and operation should be regulated at a higher level, but in a way that ensures genuine compromise. In the event of a switch to a proportional electoral system, the current two-thirds majority will probably suffice; if the system remains unchanged, however, the threshold should be raised further, for example to four-fifths, with the detailed rules designed so that it is not in the parliamentary opposition’s interest to boycott the appointment process. Involving actors beyond parliament in the appointment of constitutional judges should also be considered.

What I wrote four years ago still holds: the main problem with the Hungarian constitution is not its text, but the fact that it does not function. And it has not functioned largely because of those who were meant to operate the constitutional system – above all, the constitutional judges. If the independence and proper functioning of the Constitutional Court are restored, there is no need to designate another twenty or thirty laws as cardinal, not even crucial ones such as laws on the judiciary or the parliament. In that case, given that the fundamental principles of democracy and the rule of law are codified at the constitutional level, simply enforcing the constitution is enough.

More generally, if the Constitutional Court functions normally again, it will be capable of protecting the rule of law and institutional integrity. What I do not trust it to protect, however, are certain core aspects of popular sovereignty. That is why laws governing parliamentary elections and the competences of local governments should be safeguarded so that their adoption – and any substantial, fundamental changes to them – are subject to requirements beyond a simple parliamentary majority.

As a first step, the electoral system should be made more proportional, and the competences of local governments – overhauled during the Fidesz era – should be restored, together with the necessary financial autonomy. These arrangements should be put in place together with safeguards that require direct approval by those affected, and the same safeguards should apply to any future changes. This should take the form not of higher parliamentary thresholds, but of external approval mechanisms: citizens should be able to approve electoral laws in a referendum, and any moves toward centralisation should be conditional on the approval of a certain proportion of local and/or territorial governments, depending on the subject.

Such safeguards would also require a constitutional amendment, not only in terms of the legislative process and the actors involved but also because the current framework is highly restrictive regarding referendums: it treats electoral laws as excluded subjects and sets a high, fifty percent validity threshold.

The main lesson of the past sixteen years is that institutions can be captured all too easily by the magical two-thirds majority. Even if this parliamentary supermajority is finally disenchanted, the most effective democratic safeguards will not lie in institutions alone, but also – alongside them – in the people themselves. Counter-majoritarian checks should be complemented by additional tools to keep elected governments under control; tools that carry more immediate democratic legitimacy and are rooted in majoritarian logic.

It is a relief that Hungary has moved beyond the threat of autocratisation. The task now is to counter autocratic populism in the future. This requires drawing on multiple layers of democratic legitimacy and popular sovereignty as checks on the elected majority – whether two-thirds or a simple majority – after so many years of populists misappropriating the authority of the people.

The post The Big Lie of Two Thirds Majority appeared first on Verfassungsblog.

American constitutional law treats “orthodoxy” as verboten. The concept has become a shorthand for the state imposition of belief that the First Amendment most centrally forbids. This hostility traces back decades, finding its most famous expression in West Virginia State Board of Education v. Barnette (1943). The decision, delivered as Nazi Germany occupied much of continental Europe, carries the shadow of a nation battling fascism abroad. “If there is any fixed star in our constitutional constellation,” Justice Jackson wrote, “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

Similar anti-orthodoxy language pervades recent First Amendment decisions of the Roberts Court. This spring, in Chiles v. Salazar, Justice Gorsuch quoted parts of Justice Jackson’s Barnette dictum and added an elaboration of his own: “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.” He used that shield to strike down a Colorado law prohibiting licensed mental health professionals from practicing some forms of conversion therapy.

A Malleable, Resonant Pejorative

This anti-orthodoxy rhetoric is potent. It is also conceptually confused and increasingly destabilizing to contemporary First Amendment doctrine. This is especially acute in the undifferentiated and imprecise form it has assumed in cases like Chiles. Two related problems explain why.

The first is that anti-orthodoxy language is malleable. Orthodoxy is a classificatory judgment, not a description of reality. Whether a legal or social rule counts as “orthodoxy” depends on the level of generality at which one describes it, the cultural norms through which one measures it, and the referential community one uses to evaluate it. Shift any of those variables and the label can shift accordingly. “Orthodoxy” as modern judges have synthesized it functions more as an abstract talking point than a coherent legal principle. Its rhetorical gravitas, borrowing from associations with individualism and anti-totalitarianism, has a talismanic luster but distracts more than it illuminates.

The second problem follows from the first: the undifferentiated anti-orthodoxy rhetoric obscures that not every legally enforced norm is compelled indoctrination. Some enforced norms are the legitimate output of democratic self-governance: law shaping behavior, as law invariably does, in ways that reflect contested but democratically settled resolutions and morally aspirational values inherent to a constitutional project. Some encode the procedural and substantive preconditions that make democratic self-governance possible. And some reflect expert consensus within professional and scientific communities. Collapsing these categories—and, worse, tarring them all with a freighted pejorative of constitutional law—makes it impossible to reason carefully about what the First Amendment prohibits, protects, and says nothing.

Disentangling Orthodoxies

What invocation of orthodoxy requires, by contrast, is jurisprudential attention to differences flattened by a monolithic application. Three categories are worth distinguishing. The first—and the one Barnette (properly understood) addressed—is compelled indoctrination and idea espousal. There, the state required unwilling children of Jehovah’s Witnesses to salute the American flag and recite the pledge of allegiance as the price of attending public school. Rather than conditioning a discretionary benefit in a neutral and justifiable manner, the state coerced affirmative ideological incantation and performance.

The second category is democratic value-formation and preservation. It can superficially resemble the first, as both categories involve law molding belief and action. But the resemblance is illusory. Pluralistic democracy requires that state services, public institutions, and legal rules internalize and proceed from universal commitments about citizens’ equal worth and underlying procedural and substantive structure of self-government. All laws reflect values and most impose them. The question is not whether law has normative content but which content it has, and whether institutional ordering on that content accomplishes legitimate state ends while preserving space for dissenters to structure private life as they wish.

When Congress enacted landmark civil and voting rights statutes in the mid-1960s, it was not registering a neutral normative preference. It was deliberately seeking to supplant one prevailing social arrangement with another. As Justice Sotomayor observed in her Students for Fair Admissions v. Harvard dissent, Jim Crow regulations punished “dissent from racial orthodoxy,” the dominant and oppressive racial hierarchy of the postbellum white South. These civil rights laws sought to replace this reactionary social arrangement with a more egalitarian one ensuring black citizens’ access to democratic representation, public accommodations, and economic opportunity.

Civil rights laws are values settlements of contested social questions enforced through law. These questions remain bitterly contested, as made plain over the past two weeks by the Supreme Court’s dismantling of the Voting Rights Act of 1965 and the resulting febrile stampede among southern states to extinguish black political power. Here, that meant legislating to ensure black citizens have the equal opportunity to elect a candidate of their choosing, even if white majorities objected to the purpose, implementation, and results of this principle.

These civil rights protections “prescribe what shall be orthodox” in the shared and important provinces of public life. Yet enforcing values settlements within these provinces is exactly what democratic self-governance looks like when it fulfills its normative commitments to pluralism and equal citizenship. Laws like the Voting Rights Act expanded access and participation for black people in our polity and economy while preserving space for other citizens to hold contrary views about the equal worth of black citizens, so long as they did not act on those views to harm others.

The third category is expert consensus. Substantive scientific and empirical consensus is not simply another form of opinion. Colorado’s regulation of conversion therapy, at issue in Chiles, rested on the judgment of the professional bodies that such practices are harmful and ineffective. Requiring licensed practitioners to operate within the parameters of medical agreement when working in a particular professional capacity is categorically different from requiring citizens to affirm a political creed.

A Shield Becomes a Sword

To see the problems of nebulous orthodoxy rhetoric, consider another case out of Colorado: St. Mary Catholic Parish v. Roy, in which the Court granted certiorari recently and which will be argued next term. Catholic preschools that refuse to enroll four-year-olds with LGBT parents claim the First Amendment entitles them to funds from a relatively new Colorado preschool program. Their certiorari petition characterizes the program’s nondiscrimination requirement—unexceptional language common across civil rights laws that bars discrimination based on sexual orientation, gender identity, race, and ethnicity, among other protected characteristics—as enforcing “orthodoxies about marriage and sexuality.”

From the vantage point of conservative Christians who successfully petitioned the Court, Colorado’s requirement is the enforcement of sexual and marital dogma. Yet from the vantage point of LGBT parents seeking equal access to a state program for their children, the same requirement is anti-orthodoxy, a refusal to let Christian nationalism shut the schoolhouse door in Dolores, Colorado (population 937) as readily as in Denver. Framed from this reference point, permitting state-funded programs to discriminate entrenches an orthodoxy of LGBT inferiority.

Orthodoxy as a concept does not resolve that classificatory choice; it merely ratifies whichever the speaker has already made. In so doing, orthodoxy talk distracts from the pressing question of why a society would want to prefer one legal arrangement over the other. In Roy, that question demands reckoning with the practical and stigmatic harms of the state subsidizing discrimination against young children because of their parents’ immutable characteristics—a question entirely erased by framing the dispute as one over “orthodoxies about marriage and sexuality.”

Cabining Anti-Orthodoxy

Barnette’s core prohibition—that the state may not compel affirmation of belief—remains sound. The error is thoughtless judicial expansion of this idea beyond the originating forced indoctrination context. In so doing, the Court has undermined pluralism with the very language most associated with enshrining it in the American “constitutional constellation.”

Barnette protected a minority’s children from state compulsion and, by extension, access to a public good. The Roy plaintiffs invoke this principle forged in that protection to authorize excluding another minority’s children from the same public good. Colorado does not require Catholic preschools to affirm anything about LGBT families; it merely requires all providers that voluntarily participate in a state program treat children the same.

Chiles follows a similarly inverted logic to the same destination. Colorado’s law prohibiting certain types of conversion therapy regulated a narrow class of state-credentialed actors whose conduct, not their beliefs or political speech, fell within the scope of professional oversight. The law left licensed practitioners entirely free to hold whatever views they wish about LGBT people and speak accordingly.

Orthodoxy talk extends well beyond recent cases, heightening the costs of its conceptual confusion. Conservative justices have marshaled Barnette’s arresting language to turn the First Amendment against civil rights enforcement, labor unions, and campaign finance regulations. Anti-orthodoxy language echoing Barnette also appears in the individual writings of Justice Thomas pressing for sweeping prerogatives for conservative Christians, in Justice Gorsuch’s inveighing against vaccination requirements, and in Justice Alito’s Obergefell dissent, which warned that constitutional recognition of the right to same-sex marriage “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”

Rather than asking whether an enactment creates a “new orthodoxy,” constitutional reasoning requires a more disciplined set of questions to analytically situate dominant belief systems in relation to constitutional values and operationally aid judges to balance competing interests and harm allegations. Is the alleged orthodoxy the product of authoritarian imposition or democratic deliberation? Does the law leave dissenters meaningful space to hold contrary convictions without conscripting others into bearing the cost? Does exclusionary power run from state to individual in the pursuit of important ends, or from private institutions to vulnerable groups in pursuit of sectarian privilege or ideological exclusion?

None of this requires abandoning Barnette. It requires reading it for what it is: a limit on state-compelled ideological conformity targeting dissidents, not a warrant to capitalize on galvanizing rhetoric to opt out of neutral law, erode civil rights enforcement, or insulate professional harm from democratic regulation.

The post The Seduction of Constitutional Anti-Orthodoxy appeared first on Verfassungsblog.