Living at Times of Politics of Resentment: Of Unconstitutional Capture, Hope for Constitutional Fi-delity and Challenge of “Doing Europe”

TitleLiving at Times of Politics of Resentment: Of Unconstitutional Capture, Hope for Constitutional Fi-delity and Challenge of “Doing Europe”
Publication TypeOnline cikk / Web Article
AuthorsKoncewicz, Tomasz Tadeusz
Full Text

Living at Times of Politics of Resentment:  
Of Unconstitutional Capture, Hope for Constitutional Fidelity and Challenge of “Doing Europe”[2]
 

Stop for a second in a rushing crowd. There is the Other next to you. Meeting Him is the greatest experience of all. Talking to the Other, feeling him out while at the same time knowing that he sees and understands the world differently, is crucial to building the atmosphere for positive dialogue[3]

R Kapuścinski, Ten Inny (The Other)

New buzz word : the politics of resentment

The “politics of resentment” is sweeping across Europe. Yet the concept itself, and its consequences and modus operandi, remain far from clear. We continue to lack a conceptual framework to deal with it. We tend to adopt an intuitive understanding of the term and equate it with the politics of protest, i.e. contestation of and revolt against mainstream politics. In this traditional sense the politics of resentment is often analyzed together with populism, and the two are even sometimes used interchangeably. Like populism, the politics of resentment is not only anti-elitist, but also anti-pluralist.[4] Populism appeals to resentment to exclude ‘others’ from “the people”, claiming that only “We” represent the real “We the People”. However, the politics of resentment is conceptually different. Being concrete and yet fluid and intuitive at the same time, it penetrates social and political life more deeply and broadly than populism. Contrary to the common narrative rise of the “politics of resentment” does not mark the end of democracy, rather its transformation. European “politics of resentment” foreshadow beginning of a sweeping revolt against the mainstream politics. National exceptionalism becomes the name of the game. There is no place for „the Other” or institutions that, as “resentment - driven politics portray them, stand for the allegedly corrupt elites. “Politics of resentment” lead to a new conflict, away from party lines (left v right) and towards „political elites v angry public”. Liberal narrative of the rule of law and embrace of the „the Other” are replaced with the apotheosis of local communities that are composed of individuals “just like us”.

 

I. The Politics of Resentment: what’s in a name?

 

I.1. The politics of Resentment and memory capture: Polish case as a “trail - blazer” (for all the wrong reasons)

 

First and foremost it should be underscored that the “politics of resentment” reshapes our commitments and narratives taken thus far for granted, point often missed in our discussion of “the politics of resentment”. It resorts to what might be called here “memory capture”, understood as a generic and novel concept that calls into question “We, the (Polish/Hungarian) etc. people”. Polish example of regaining allegedly lost identity and national pride, is instructive here as “memory capture” is based on a systemic weakening of the inclusive approach to the past, which allows all voices to be heard[5]. It offers a more flattened and one-dimensional explanation of where “We, the Poles” came from and what makes up our national identity. “Memory capture” is vindictive: Poland and the Poles have suffered so much in the past that they are now entitled to a greater respect and recognition for their sufferings. Poland has rightful expectations to be a taker, not a giver, because we have already given too much and should now be compensated for all our sacrifices and sufferings[6]. Memory capture consists in enslaving the past within one dominant narrative and, as a result, entails an imbalance in our collective remembering and way of looking at the past. Certain elements are exposed and celebrated, while others that do not fit the overarching rationale and narrative are relegated to the margins of public discourse, castigated, and even, as will be shown below, penalised. In the end, the historical debate is tainted by an imbalance and asymmetry. This is where the concept of “mis-memory” enters the picture, distorting our reading of our national history and the past. The high rhetoric adopted is always the same: to protect the good name of Poland. Beneath the surface, though, lurk the true motives of Polish political masters: negation of historical truth by silencing those who dare to speak honestly, without sugar coating, about past events. “Memory capture” and “mis-memory” dictate a vision of the past that is one-dimensional: we suffered and others always plotted against us. Andrzej Wajda, the renowned Polish movie maker who has passed away recently, was one of those who more than anyone else, shaped and expressed the Polish post-1945 spirit and consciousness through his artistic vision and imagination. He had this to say on the state of the Polish soul and national temperament: “Those who go around shouting “Poland, Poland!” don’t always have the deepest and wisest reflections of Poland in their hearts and minds. Slowacki knew this. (…). The symbols of tradition and history are alive in our nation, and it has never allowed them to be torn from its memory. But the question is whether these symbols incline us to communal action and true patriotic sentiments, or whether they engender sterile and inert emotions and cheap feelings, serving as a smokescreen for self-satisfaction, arrogance and apathy, indeed chauvinism and even hatred[7]. This mis-memory manifests itself in many places and under many guises. We now read insinuations that Lech Walesa worked for the secret police of Communist Poland. Earlier this year, officials of the Polish Institute of National Remembrance (IPN) seized documents from a vacation house of the deceased former secret police chief, Czesław Kiszczak. One file supposedly contains Walesa’s signature, showing his assent to act as a “secret collaborator” as well as alleged receipts for payments. This is not the first time that Walesa has faced questions in this regard. In the 1990s rumours surfaced that he was an informer code-named ‘Bolek’, yet no document has emerged showing that such an agent spied on anyone. The IPN is not even sure if Walesa’s alleged signature is genuine. What is unquestionable is that there is an ongoing stubborn and persistent campaign to show that a man who destroyed a political system was also in its pay. Walesa is not the only dissident icon being targeted. Writers Adam Michnik and Jacek Kuron, former foreign minister Bronislaw Geremek, and first post-Communist Prime Minister, Tadeusz Mazowiecki (the latter three now deceased) have likewise attracted accusations of complicity. In Germany or Czechoslovakia the allegations, if true, would imply a moral failing. In Poland they signal treason. All this raises the question: Are these examples unrelated incidents or do they, rather, hint at an emerging trend in the way of understanding, and looking at, Polish history?[8] Taken in isolation they could be considered as no more than a disturbing aberration; analysed together, however, they point towards a dangerous and growing trend of rewriting history and the imposition of a new historical narrative.[9] Should we be surprised by this zealous historical turn in Poland? My answer is “no”, and that the past – both the most recent and more ancient - holds all the keys to making sense of the sweeping “politics of mis-memory”[10]. One cannot fully grasp the rationale behind the ‘memory capture’ and obsession with history without looking behind the lurking ideology and founding myths of the Polish powers. In the eyes of the right-wing and ultra-conservative ruling Law and Justice party (hereinafter PiS, as it is known in Poland based on its Polish acronym), the birth of the Third Republic in 1989 has been deficient since its very beginnings. PiS has been built on and thrived on the premise of denouncing the so-called ‘Round Table Talks’ in 1989 as a rotten compromise struck by Lech Walesa (a traitor and secret collaborator with the communists) and Solidarność (Solidarity) with the outgoing communist regime as  a means of keeping the old elites alive. According to this narrative, Polish politics and democratic institutions (e.g. judicial constitutional review)[11] are all a sham, and the Third Republic (brought into existence in 1989) has never been a real state, but rather a phantom state based on the intellectual corruption of the political elites, bribery, dysfunctional government, caving in to Brussels, selling off Poland to strangers for peanuts, and waiting at the beck and call of Germany. “Real Poles” were shackled and relegated to the sidelines. Now, “We the PiS” - speaking on behalf of ‘true Poles’ - will reclaim the state from the corrupt elites and purge it of all irregularities, using the tools of censorship, the antagonising rhetoric of “we vs. them”, nationalistic undertones, the presentation of Poland as the political lapdog of Germany and the EU, and manipulation of the law. In such “Paranoia-driven” politics, any pocket of independence and potential resistance is seen as dangerous and fuels conspiracy theories. The enemy is omnipresent: both everywhere and nowhere. It is invisible and does not respect rules. As a result, tracking the enemy and/or traitor is crucial and provides the self-renewing justification for the paranoid regime.

Mis-memory fuelled by paranoias is important as it sets the stage for the ultimate conflict that defines, and is at the heart of the politics of resentment: entrenching political power and imposing new constitutional narrative(s).     

 

I. 2. The Politics of Resentment and alienating constitutionalism

 

At its deepest level, the ‘politics of resentment’ calls into doubt the very commitments entered into voluntarily. It strikes at the very core of the societal fabric. This politics of resentment has never worked on its own. It is always a function and mixture of culture, history and domestic politics. As a result of this “bifurcation resentment” works differently in different environments and manifests itself in different guises: Brexit in the UK and more generally anti-European sentiments across the continent; the rise of right-wing parties in Germany, Austria and France; the spread of hate speech and exclusion of the “Other”, including the expulsion of the Roma from France; or more recently the disabling of constitutional checks and balances and exclusion of the political opposition from politics in Poland and Hungary. The rationale behind this resentment - exclusion and distrust - plays out in each and every case mentioned, yet it operates differently, with varying intensity and consequences. The politics of resentment is felt differently in the main axes of divergence of the European continent. i.e. in “the West” and “the East”. In the former case, EU law and Europeanization provoke well-known criticisms of the remoteness of Brussels, with  resultant civic indifference, thus turning against the mainstream politics and offering a nostalgic return to the nation state. In the homogenous societies of the East, the politics of resentment currently does not have an ‘Other; to turn against,[12] and, as a result it has fed off the phenomenon that I call “alienating constitutionalism”. This provides fertile ground for a sweeping politics of resentment. The incessant pressure of Europeanisation and the drive to ‘catch-up’ with what was for long accepted as a superior European standard has provoked a backlash against the elite - driven and technocratic politics, wherein public discourse was dominated by strict legalism and top-down approach, with citizenry relegated to the moment of symbolic vote- casting. There was almost an aura of inevitability to mainstream politics: the choice at the polls could be against a person (party) but never against those policies which were seen as a non-negotiable itinerary to be carried out. The politics of resentment took advantage of the exclusion that defined this ‘alienating constitutionalism’ and transformed itself into a ‘vindictive constitutionalism’, marked by gut-politics, emotions, and revolt against the corrupt political elites and institutions.

A phase of “(un)constitutional capture” followed.

 

I.3. Thinking of institutions. (Un)constitutional capture

 

It is the institutions that help us preserve decency. They need our help as well. Do not speak of “our institutions” unless you make them yours by acting on their behalf. Institutions do not protect themselves. They fall one after the other unless each is defended from the beginning. So choose an institution you care about - a court, a newspaper, a law, a labor union - and take its side[13]

 

European “politics of resentment” go beyond mere populism as they resort to “constitutional capture”, the concept that is central to my analysis. (Un)constitutional capture is generic and novel concept that poses a challenge for the EU by showing that liberalism and democracy no longer animates national constitutions, and yet it is required at the EU level, that illiberal states can flourish within the EU[14]. Unconstitutional captures debunks the predictable and stabilising liberal narrative of “in the rule of law we trust” by an emotional and unpredictable brand of politics.[15] It strikes at the independent institutions and redraws the constitutional lines of power - sharing authority[16]. “(Un)constitutional capture” at the service of the “politics of resentment” call into question “We, the European peoples” and stated aim of building “an ever closer union among the peoples of Europe” (for more on this aspect see final part of my analysis below). Constitutional capture stands for a systemic weakening of checks and balances and entrenching power by making future changes in power difficult. It is all - encompassing. It transforms the concepts that were taken for granted and were part of the liberal narrative like rule of law, legality, grappling with the past, separation of powers, independence of the judiciary, supremacy of the Constitution and the monopoly of constitutional review. Importantly, unconstitutional capture is not an one-off aberration. It is a process of incremental taking over the independent institutions and the liberal state. Hungary is a prototype of a “captured state” and one would be right in assuming that the Commission had learnt from its passivity and acquiescence to V. Orban’s tactics of capturing the state[17]. The lesson was loud and clear and yet missed by the Commission as Polish case shows: the only way to derail constitutional capture, or to “constitutionally recapture the unconstitutional capture”, is to act preemptively, before the capture is complete[18]. Waiting on the sidelines, talking to the perpetrators and hoping for their change of heart, only emboldens and entrenches the regime. The constitutional capture as a process needs time, so it is time factor that plays pivotal role in striking back at the capture. To thwart the capture in the building, counter act is necessary at the very beginning, not later. The regime knows that and will do anything to buy more time to entrench the capture and make the recapture very unlikely. Unconstitutional capture and the piecemeal undermining of the liberal democratic state pose new challenges for the rule of law and external constraints imposed on the domestic pouvoir constituant[19]. It is not so much a question of substance, but rather enforcement[20]. Writing in the context of Polish constitutional debacle, K. L. Scheppele and L. Pech have forcefully argued that “consolidation of majoritarian autocracies […] represents more of an existential threat to the EU’s existence and functioning than the exit of any of its Member States[21]. Indeed, going after independent institutions plays a pivotal role in disabling the checks and balances. The capture makes a sham a constitutional document as it strips it of its limiting and constraining function[22]. Separation of powers becomes illusory and opens gate to unchecked arbitrariness. Poland and Hungary show how this had happened with the EU extending time limits and engaging in a futile dialogue, all this while the constitutional capture has become more and more entrenched and difficult to roll back[23]. With this “bark - and - no - bite” approach from the Commission, Polish legislator became only emboldened and continued with its unconstitutional capture. With the new Law signed by the President and the Tribunal effectively captured in December 2016[24], the third stage of the pre-article 7 procedure consisting of monitoring the Member State’s follow-up to the Recommendation seemed like all but a formality[25]. Yet in the strangest about - face the Commission aggravated the situation and further emboldened the government by staying put[26] and asking the Polish government for … more information[27]. The constitutional “catch-me-if-you-can” cycle between Polish government and the Commission has an underlying logic and entails grave consequences for the rule of law and separation of powers. It clearly brings to mind how V. Orbán “tamed” the EU and followed through with his own plan to pack the Hungarian Constitutional Tribunal and all pockets of independence and free thinking (CEU being the most recent victim that succumbed to the capture[28]. Orbán introduced some changes in response to external criticism and claimed that the problem was fixed and everything was back to normal. He entrenched the old system, while giving up on one or two of the most outrageous elements that he did not really need anyway. This strategy would stop the external criticism long enough for the EU to receive the translation, study it and realise that they had been fooled again - but in the meantime, this would give Orbán more time to consolidate his power. And then it would all start again. After many rounds of this back-and-forth, the external critics whittled away a few small elements of the system, but in exchange Orbán got to keep his illiberal and autocratic constitutional reform. In short, nothing really happened as a result of external criticism, and in the end, critics gave up and pretended that everything had been addressed. As a result Hungary was let off the hook altogether. The same strategy has been adopted later in Poland. The Laws on the Tribunal enacted by the Parliament, and twice rejected by the Tribunal, persist in reproducing unconstitutionality in the hope that in the end the external outcry will subside and critics will turn to other more pressing issues. The most recent Law was enacted with cynical assurances of good intentions and sincere concerns, allegedly to put things right and bring the self-induced constitutional crisis to an end. The most questionable and clearly unconstitutional provisions (e.g. a requirement of a two-thirds majority in the Tribunal) were dropped at the very last minute. The argument will now be that this dispels all constitutional doubts and that the Law is a result of the goodwill of the ruling party and a reasonable compromise. This in turn will shift the blame towards the opposition and the stubborn Tribunal, defending the elites and old regime. The Tribunal will be portrayed as a destructive, obstructive and anarchistic force, with the ruling party in the role of a knight in shining armour. Public opinion will be left with the conviction that it is indeed the case, and that there is nothing to worry about.

            The uneasy question looms large? How to explain the relative easiness with which the unconstitutional capture took roots and succeeded to spread so quickly in Hungary before and now in Poland? Its “success” has more to do with the lack of constitutional culture rather than deficiencies of the constitutional text. The former should underpin all constitutional commitments and guarantee their enforcement. Without constitutional culture and entrenched respect for these commitments, the constitution is not worth the paper it is written on and this is the situation in Poland (and in Hungary before): the constitutional text remains unenforced since the institution called on to enforce it is openly defied. The present under-enforcement of the constitutional text and marginalisation of the Polish Constitutional Tribunal together with the innate capability of the capture to travel, pose important questions about the future and shape of the rule of law and separation of powers in other Poland[29]. Lack of constitutional culture is in turn tied to the absence of constitutional fidelity.

II. Constitutional fidelity as an antidote?  

            Constitutional fidelity offers the axiological basis for the emergency judicial review as espoused here. It provides the conceptual framework for thinking of the rule of law and separation of powers, appreciating it, and in the end defending it, at times of captures and paranoia. Crucially, constitutional fidelity might bring goods only when we indemnify its constitutive features. Fidelity is more than a duty and an obligation to observe the text. It should be construed as much more. I agree with J. Balkin that “Fidelity is not simply a matter of correspondence between an idea and a text, or a set of correct procedures for interpretation. It is not simply a matter of proper translation or proper synthesis or even proper political philosophy. Fidelity is not a relationship between a thing and an interpretation of that thing. Fidelity is not about texts; it is about selves. Fidelity is an orientation of a self towards something else, a relationship which is mediated through and often disguised by talk of texts, translations, correspondences and political philosophy. Fidelity is an attitude that we have towards something we attempt to understand; it is a discipline of self that is related to the discipline of a larger set of selves in a society. Fidelity is ontological and existential; it shapes us, affects us, has power over us, ennobles us, enslaves us. Fidelity is a form of power exercised over the self by the self and by the social forces that help make the self what it is. As such, fidelity is an equivocal concept, full of both good and bad, mixed inextricably together. Fidelity is the home of commitment, sacrifice, self-identification and patriotism, as well as the home of legitimation, servitude, self-deception and idolatry[30]. Fidelity must not be simply a matter of text and following the letter of the law. Being faithful to the document and the institutions it creates is more a state of mind, not mere practice. As such constitutional fidelity has a lot in common with constitutionalism which is not only about the document, but rather about the state of mind, limited government and culture of restraint. Fidelity can refer to the original meaning of the constitutional document or to its fundamental core or to the text as such, speak to the principles and concepts that are embedded in the Polish constitutional structure and tradition, principles that make up our constitutional identity. Fidelity and its object thus have the potential of explicating who we were, where we came from and where we are headed and finally, strives to grasp in the possible way, who we are today. Each constitutional document has its past, present and future and these three temporal dimensions are linked by the rationale of the underlying principles of values. Principles and values that make up the constitutional identity must be interpreted so as to ensure both the continuity of the messages contained therein and their durability. What is needed is the compromise and equilibrium between necessary change that embraces The New and the stability that caters to The Tradition. The latter enables us to move forward and set our gaze on the future while not forgetting about the past and about the places we come from. In other words constitutional interpretation must be conservative (preserving the values) and reformative (reading these in the light of ever-changing circumstances). Future emerges at the intersection of both dimensions: looking back and staying in the present. Again as argued by Balkin: “Fidelity is a sort of servitude, a servitude that we gladly enter into in order to under- stand the Constitution. To become the faithful servants of the Constitution we must talk and think in terms of it; we must think constitutional thoughts, we must speak a constitutional language. The Constitution becomes the focus of our attention, the prism of our perspective. Our efforts are directed to understanding it-and many other things in society as well-in terms of its clauses, its concepts, its traditions. Through this discipline, this focus, we achieve a sort of tunnel vision: a closing off to other possibilities that would speak in a different language and think in a different way, a closing off to worlds in which the Constitution is only one document among many, worlds in which the Constitution is no great thing, but only a first draft of something much greater and more noble. And to think and talk, and focus our attention on the Constitution, to be faithful to it, and not to some other thing, we must bolt the doors, shut out the lights, block the entrances. Fidelity is servitude indeed. But this servitude is not so much something the Constitution does to us as something we do to ourselves in order to be faithful to it". Such understanding of fidelity underscores aspirational function of the constitutional document. It aspires to reflect “us” in the best, and not perfect, way. It aspires to capture this reflection, and yet it will never achieve this goal in a definite and final way, since “we” change and evolve along with the document. Preamble to the Polish Constitution shows the commitment to which Polish nation aspires, commitments that are anchored in the past, developed and refined in the present and carried over into the future. It means that the Constitution’s commitments have not been yet met. This never - ending meandering between the past and the back-ward looking and the future with its forward-looking is a matter of constitutional reflection and politics. Such pacting must be undertaken by each generation which has its own distinctive role to play in spelling out what the constitutional pact mandates today. Constitutional fidelity underpins this process and arises at the interstices of practice, text, interpretation and culture. It understanding aspirational function of the constitutional document. It aspires to reflect “us” in the best, and not perfect, way. It aspires to capture this reflection, and yet it will never achieve this goal in a definite and final way, since “we” change and evolve along with the document. It is always about the commitments anchored in the past, developed and refined in the present and carried over into the future. This never - ending meandering between the past and the back-ward looking and the future with its forward-looking is a matter of constitutional reflection and politics. Such pacting must be undertaken by each generation which has its own distinctive role to play in spelling out what the constitutional pact mandates today. Constitutional fidelity underpins this process and arises at the interstices of practice, text, interpretation and culture. It is in this sense that the constitutional fidelity is about generational reading of the document. It is not about uncritical iconoclasm. It is about pragmatic recognition that our constitutional allegiances are shaped, reshaped, reexamined as we move forward and as the world around the constitution changes and fluctuates. There is no place for fear of failure, because failure is the part of the fidelity as no Constitution is perfect. Fidelity is about the journey and the process, rather than a boat and final destination. Past must be the key to the future, but not only. After all, constitutions that are meant to last must be understood as documents made for people of fundamentally different views, as Justice Oliver Wendell Holmes rightfully said. Again American constitutional tradition of looking to the past in a constructive way might be used here: “We turn to the past not because the past contains within it all of the answers to our questions, but because it is the repository of our common struggles and common commitments; it offers us invaluable resources as we debate the most important questions of political life, which cannot fully and finally be settled[31]. Each generation should build on the best of the past and move forward with this baggage. After all, this is exactly what the Preamble to the Polish Constitution mandates. This is the kind of fidelity I am talking about, and the one that should inform the understanding of the constitutional commitments the judges should owe to the Constitution of 1997. As important as institutions are, engaged citizenry has after all its own fidelity and commitments to live up to. Our fidelity is at its best when people (not only lawyers!) see themselves as being part of the process that the constitution embodies from nation - building through nation- discovery to nation-sustaining and growth. Fidelity is not about logic, but first of all about sense of belonging, emotions, tradition and history. Only combination of these factors is able to define the contours, and, finally, durability of, our fidelity to, the Constitution and give as a chance moving forward as a nation of all, and not only chosen ones. True constitutional fidelity never comes down as a blessing from the powers that be, but is born and thrives always in peoples’ hearts.  

Epilogue or New Prologue? “Doing Europe”: Of Commitments and Allegiances. Are European Peoples ready to keep paddling together?  

My argument here has been that Polish (and Hungarian) case is much more than just an isolated example of yet another government going rogue. There is an important European dimension to what has transpired in Poland over the last 20 months. Constitutional debacle in Poland should be a starting point for more general analysis of processes of the politics of resentment and unconstitutional capture since both strike at the rule of law and separation of powers as we were accustomed to understand them. It is not just the idiosyncrasies of Poland alone that has led to these developments.

            The question that Europe faces right now here is not what happens when things go as planned, but rather what happens when the rule of law is systematically undermined? EU all too often assumes that things go in accordance with the plan. But sometimes they don't and the uneasy question looms large “what then”? Past European crises galvanised European states toward further EU integration. Yet, past crises never questioned the overlapping European consensus that coalesced around a broadly shared political vision of Europe. Resentment - driven constitutional capture undermines the very idea of Europe, and the principles of liberalism, tolerance, “living together” and “never again”. It replaces these founding principles with zero-sum politics, „us vs. them” and a competing constitutional narrative of fundamental disagreement over values. It proclaims that “We, the European peoples” are not ready to live together in one pluralistic constitutional regime. Resentment - driven constitutional capture in Poland challenges European solidarity and mutual trust in a fundamental way. It proposes to reverse an ever closer union among the peoples of Europe” and signals a dark turn inward. By showing that liberalism and democracy no longer animate national constitutions and politics, and by revealing that illiberal states can now flourish within the EU, the Polish experience poses an existential challenge to the EU. Can the EU mount a response to the challenge? Is EU still able to foster respect for commitments of principle that brought member states together? Does it have a safety valve by which it can deflate excessive nationalism and manifestly illiberal practices? Can it preserve the common values that launched the European project - supranationalism? More particularly, can domestic constitution-making be constrained from the outside - for instance, held unconstitutional by the Court of Justice or questioned by the European Commission? It is in this sense that the Polish question is now the European question as well. When seen against the background of the politics of resentment and constitutional capture, disablement of the Tribunal and capturing by the majority of the day of the independent institutions, have profound effect on the very premises of European integration (commonality of values) and forces us to look differently at what was thought as an unassailable tenet of European integration: trust in law and its transformative potential in bringing about the democratic change. As emerging constitutional capture shows capability to travel across the borders and has the potential of being borrowed by others, it entails pressing questions for Europe and for our understanding of separation of powers and the rule of law. These tenets of European constitutionalism and supranationality are in flux as constitutional capture claims new victims (Hungary before, and now Poland) and throws into sharp relief EU’s inability to shield, and, enforce, Member States adherence to rule of law, checks and balances and judicial review.

Supranational Europe must be again thought of as a safety valve against the excesses of national states, an additional level of oversight over the member states. As much as the Court of Justice might preach “mutual trust” as one of the paradigms of EU law, it was rather distrust that initially drove the founding fathers in their push of integration agenda. Mutual trust only followed as the edifice started to take shape. In light of new phenomenon on the rise like abusive constitutionalism[32], the democracy mutations[33], and backsliding and in the central and eastern Europe[34] and resurrection of resentment in other parts of Europe, this promise of being a check on the world of unfettered freedom of nation states, is even more important. Separation of powers and judicial review are instrumental institutions necessary to implement the rule of law and enforce the constitutional text against the governors. Judicial review[35] helps keep the governors in check and ensures the supremacy of the constitution against the strategies of short-circuiting it for the benefit of ever - changing politics of the day[36]. Ambition must be made counteracted by ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of the government. But what is government itself, but the greatest of all reflections on human nature […]. In framing a government which is to be administered by men over men, the great difficulty lies in this:  you must first enable the government to control the governed; and in the next place to oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions”[37]. The separation of powers offer us the best example of auxiliary precautions referred to by J. Madison. “Marbury moment”[38] might be just round the corner. As we move forward and enter the uncharted territory of separation of powers and rule of law in distress, most important issue should indeed be, as powerfully espoused by M. Shapiro many years ago, not how institutions shape politics, but how politics shape institutions[39]. When rule of law and separation of powers are systematically undermined by the majoritarian politics disguised as democracy, courts must not pretend that this is of no concern to them and to continue “business as usual”. Politics shape court’s responses and emergency judicial review is one of these. With this separation of powers will never be the same and this in itself is a huge challenge for constitutionalists: to move away from cosy world of sacrosanct and time – honoured concepts that always work to fuzzy and unpredictable world of “new authoritarians” who only rarely appear as wolves, rather are clad in sheep’s clothing[40]. These “authoritarian sheep” reshuffle our safe world and test constitutional concepts to their limits.

“(Un)constitutional capture”, as explained above, when at the service of the “politics of resentment” call into question “We, the European peoples” and stated aim of building “an ever closer union among the peoples of Europe”. Constitutional capture stands for a systemic weakening of checks and balances and entrenching power by making future changes in power difficult. It is all - encompassing. It transforms the concepts that were taken for granted and were part of the liberal narrative like rule of law, legality, grappling with the past, separation of powers, independence of the judiciary, supremacy of the Constitution and the monopoly of constitutional review. Constitutional capture has the potential of “spill - over effect” and as such entails dramatic questions for Europe. Is Europe ready to operate as a safety valve against the excesses of a nation state which was one of the founding narratives of supranationalism at the time when first European Communities were established back in 1951 and 1957? Is the argument from containment an empty word or, to the contrary, has it still some bite? Is Europe well - equipped to deal with the politics of resentment? Last but not least, could domestic constitution-making be constrained from the outside and held unconstitutional within the context of constitutional parameters dictated by the EU constitutionalism? These questions are vital as they force us to revisit the raison d’être of Europe[41]. They challenge the standard origin story of the EU - that it was founded to bring peace and prosperity to Europe by ending the possibility of war and encouraging the common rebuilding of economies. I will argue that “politics of resentment” endanger the very basis of mutual trust between member states that has been defining the European project ever since its inception[42]. Mutual trust towards the other states and the community they had created acting in unison, has been the cornerstone of an ethos of Europe[43]. The trust has been always built on the convergence between fundamental values of Member States and their legal orders on the one hand, and foundations of the Union legal order, on the other. My argument is that “politics of resentment” pose the ultimate challenge to the foundations behind integration and EU membership: commonality of liberal and democratic values and interests, agreement that the Community is more than just the sum of its parts and loyalty to the community legal order as binding on all components. to the same extent that the politics of resentment” do now. Past European crises were the source of galvanisation and they often pushed further EU integration. Yet, they never questioned European overlapping consensus that coalesced around certain essentials that brought together states in a constitutional regime. Overlapping consensus requires agreement on fundamental commitments of principle[44]. It is these essentials that I require others to respect as the condition of my own deference to the decisions by others. Persistent differences of citizens living together in a constitutional regime create disagreement over the final shape of these constitutional essentials. At the same time, they agree that these disagreements will be ironed out and spelt out within the discursive framework. European overlapping consensus[45] has at its heart constitutional tolerance and agreement on fundamental commitment of principle or adherence to certain core (essence) of principles, concepts that binds us together (rule of law and separation of powers being one of these, even though their final contours were defined by individual member states) that is those essentials which we require others to respect. “We” peoples of Europe agreed to respect others way of life, provided their lives and decisions respect mutually agreed essentials and fundamental values. Constitutional tolerance subjected European peoples to the discipline of democracy even though the European polity is composed of distinct peoples. “Politics of resentment” call into question this narrative by putting forward a competing one, that of fundamental disagreements over values and the inability of today’s European Union to keep fostering mutual trust. Overlapping consensus relies on the acknowledgment by the members of multiple societies of their persistent differences in understanding and respecting the essentials that bind them together, while at the same time honoring the influence of others on the interpretation of shared commitments.

As it is engulfed by the „politics of resentment” and growing fears of spreading constitutional capture, Europe needs a discursive framework for articulating and accommodating the practical meaning of the overlapping consensus. My argument is that such framework should be centered around basic challenges which could be presented here as a combination of the pastpresent and the future. “Politics of resentment” challenge us to revisit forgotten founding narratives of European integration[46] (dimension of the PAST), rethinking Europe’s vocation today (dimension of the PRESENT) and finally, opening up for, and embracing, new vistas (dimension of the FUTURE). Resentment - driven constitutional capture pose existential threat to post - 1945 Europe and its founding narratives of “living together” and “never again constitutionalism” that has animated Europe’s Founding Fathers. “Europe is not Europe in the sense that Germany is Germany, or France is France. Europe is all about Doing Europe which aims for the effective and unsentimental […] Doing Europe transforms bad history into good future and better life for everyone irrespective of race, language or religion […] Doing Europe embodies Never Again”[47]Politics of resentment forcefully show that “doing Europe” of overlapping consensus and tolerance ceases to be the dominant European narrative. Instead “politics of resentment” and “constitutional capture” push Europe into a standstill and an identity crisis. Europe is falling short of a novel challenge that comes along with the “politics of resentment”: moving beyond its traditional mandate of making sure that the member states behave in a certain way (implement EU law, remove obstacles to free trade eg.) and on towards preventing these same states from endangering and hijacking common values and principles. The rethinking of external constraints and limitations imposed on the domestic pouvoir constituant in response to constitutional capture of liberal constitutions loom large. As we try to move forward, the question is this: are “we, the European peoples” ready to continue living together in a constitutional regime, internally divergent, and always ready to respond to the exigencies and demands of new realities? The challenge behind this question has been eloquently summarised by J. Tully’s “canoe metaphor[48]: „Perhaps the great constitutional struggles and failures around the world today are groping towards the third way of constitutional change, symbolised by the ability of the members of the canoe to discuss and reform their constitutional arrangements in response to the demands for recognition as they paddle. A constitution can be both the foundation of democracy and, at the same time, subject to democratic discussion and change in practice”. With the „politics of resentment fuelling European disintegration and with the exclusion of “the Other” and „constitutional capture” elevated to the status of new modes of governance, the challenge of “paddling together” and rediscovering constitutional fidelity at the interstices of the national and supranational, have never been more acute and … dramatic.

[1] Professor of Law and Director of the Department of European and Comparative Law at the Faculty of Law and Administration, University of Gdansk; 2015 - 2016 Fulbright Visiting Professor at the Berkeley Law School, University of California; 2017 Visiting Professor at the Radzyner Law School in the Interdisciplinary Centre Herzliya. In 2017 - 2018 appointed as Research Fellow at the Program in Law and Public Affairs (LAPA) at Princeton University where he will focus on the politics of resentment and unconstitutional capture and will study their effect on European project. He took his law degrees from the University of Wroclaw and Edinburgh; Served as the referendaire at the Court of the EU in Luxembourg and acted as the legal adviser to the Office of the Polish Constitutional Court; attorney and Member of the Polish Bar. He specialises in strategic litigation before supranational and constitutional courts.
 

[2] The content of the paper was presented on the workshop “Reforming the EU - Central European Perspectives” organized by the Hungarian Europe Society on 18th March 2017, Budapest. The workshop and the paper were both funded by the Friedrich Naumann Stiftung. 
 

[3] (Warszawa, 2010); translation from Polish is Author’s.
 

[4] This is the understanding of populism adopted by J.W. Müller in his insightful analysis What is populism? (University of Pennsylvania Press, 2016). 
 

[5] This part draws on J. Conelly, T. T. Koncewicz, Who are Today’s Polish Traitors? Of Politics of Paranoia and Resentment and Missed Lessons from the Past, available at http://verfassungsblog.de/who-are-todays-polish-traitors-of-politics-of-paranoia-and-resentment-and-missed-lessons-from-the-past/  
 

[6] Arguing in 2007 for increased voting rights in the EU for Poland, then - Prime Minister and leader of PiS, Jarosław Kaczyński stated: “We are only demanding one thing, that we get back what was taken from us”, and added that “[i]f Poland had not had to live through the years of 1939-45, Poland would today be looking at the demographics of a country of 66 million.” See, Poles in a war of words over voting, BBC News, 21 June 2007 http://news.bbc.co.uk/1/hi/world/europe/6227834.stm Writing in 2017 and thus with the benefit of hindsight, we have been all warned.
 

[7] Polish quotation comes from http://www.newsweek.pl/kultura/andrzej-wajda-nie-zyje-rezyser-andrzej-wajda-zmarl-w-niedziele-wieczorem,artykuly,398462,1.html 
 

[8] See also Charlemagne. The politics of memory, The Economist 9 April 2016.  
 

[9] https://www.ft.com/content/67532c78-e62d-11e5-a09b-1f8b0d268c39

https://www.ft.com/content/e05e0500-6f8b-11e2-b906-00144feab49a?ftcamp=published_links%2Frss%2Farts_books%2Ffeed%2F%2Fprodu
 

[10] For more detailed analysis see my chapter Of mis-memory, constitutional fidelity and demise of Polish overlapping consensus, in: U. Belavusau, A. Gliszczynska-Grabias (eds.), Law and Memory: Addressing Historical Injustice by Law (Cambridge University Press, 2017, forthcoming). 
 

[11] For more on the constitutional crisis in Poland and its European ramifications, sees T.T. Koncewicz, Of institutions, democracy, constitutional self-defence and the rule of law: The judgments of the Polish Constitutional Tribunal in cases K 34/15, K 35/15 and beyond, (2016) 53 Common Market Law Review 1753.  
 

[12] This homogeneity and the fear of “the Other” (as evidenced in, e.g., the resistance of Central and Eastern Europe countries to accept immigration quotas) stands in stark contrast to Eastern Europe’s past, marked by a diversity that was once unparalleled in the rest of Europe.
 

[13] T. Snyder, On Tyranny. Twenty lessons from the twentieth century, (The Bodley Head London, 2017), p. 22. 
 

[14] It is a paradox that democracy and the rule of law are on the list of accession requirements for candidate states, yet member states get off the hook as soon as they join “the club”. “Politics of resentment” throw then into sharp relief EU’s capability to execute the observance of these fundamental values with regard to its own member states... 
 

[15] See the special Volume no 18/2007 of the Journal of Democracy: Is East-Central Europe Backsliding?; and in particular the analysis by I. Krastev, The strange death of the liberal consensus, (2007) 18 Journal of Democracy no 4, p. 56.   
 

[16] For the concept see J. W. Müller, Rising to the challenge of constitutional capture, available at http://www.eurozine.com/articles/2014-03-21-muller-en.html 
 

[17] M. Bankuti, G. Halmai, K. L. Scheppele, Hungary’s Illiberal Turn: Disabling the Constitution, (2012) 23 The Journal of Democracy 138;  I. Pogany, The Crisis of Democracy in East Central Europe: The ‘New Constitutionalism’ in Europe, (2013) European Public Law 341.    
 

[18] L. Pech, K. L. Scheppele, Poland and the European Commission, Part I: A Dialogue of the Deaf? p. 2 available at http://verfassungsblog.de/poland-and-the-european-commission-part-i-a-dialogue-of-the-deaf/   
 

[19] C. Dupre, The Unconstitutional Constitution: A Timely Concept, in A. Von Bogdandy, P. Sonnevend, (eds.), Constitutional Crisis in the European Constitutional Area. Theory, Law and Politics in Hungary and Romania, (Oxford/Portland, Hart Publishing, 2015); K. L. Scheppele, Unconstitutional constituent power, available at https://www.sas.upenn.edu/dcc/sites/www.sas.upenn.edu.dcc/files/uploads/Scheppele_unconstitutional%20constituent%20power.pdfA. Barak, Unconstitutional constitutional amendments, (2011) 44 Israel Law Review 321; R. Albert, The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada, available at http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1984&context=lsfp; R. Albert, Four Unconstitutional Constitutions and their Democratic Foundationshttps://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2860442. For EU perspective see R. Passchier, M. Stremler, Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561209   
 

[20] It was eloquently argued by C. Closa, D. Kochenov and J.H.H. Weiler that two sets of situations must be distinguished. On the one hand, there are what they call “problems amounting to nothing else but careless use of the law or abuses of political power - something that can and will be corrected with time through the functioning of the relevant Member States’ own democracies”. On the other hand, “there are problems of such a profound and fundamental nature, that the Member States’s own legal and political systems are overwhelmingly unlikely to be in the position to right the wrongs concerned in the near - to long -term future”. It is the latter group that calls for serious reconsideration of the existing framework and enforcement mechanisms. When national democracies fail to secure the essence of the rule of law, Europe should step in and reestablish the respect for commonly shared principles (eg. rule of law). See C. Closa, D. Kochenov, J.H.H. Weiler, Reinforcing the rule of law oversight in the European Union, Robert Schuman Centre for Advanced Studies Working Paper 2014/25, at p. 4. See also D. Kochenov, L. Pech, Upholding the rule of law in the EU: On the Commission’s ‘Pre-article 7 Procedure’ as a timid step in the right direction, Robert Schuman Centre for Advanced Studies Working Paper 2015/24  
 

[21] L. Pech, K. L. Scheppele, supra note 17.   
 

[22] “Sham” (sometimes also called “facade”) constitutions fail to constrain or even describe the powers of the state. On the concept see D. S. Law, M. Versteeg, Sham Constitutions, (2013) 101 California Law Review 863.  
 

[23] On the EU Commission’s inability to learn from the Hungarian debacle and Polish government ability to learn from the Orban’s tactics see in depth L. Pech, K. L. Scheppele, Poland and the European Commission, Part II: Hearing the Siren Song of the rule of law, available at http://verfassungsblog.de/poland-and-the-european-commission-part-ii-hearing-the-siren-song-of-the-rule-of-law/ at pp. 4 - 8. 
 

[24] On this my analysis Constitutional Capture in Poland 2016 and Beyond: What is Next? http://verfassungsblog.de/constitutional-capture-in-poland-2016-and-beyond-what-is-next/ 
 

[25] For the linking of persistent and systemic non-compliance with the suspension of EU funding and, on the respective roles of the ECJ and the Commission, see in depth K. L. Scheppele, Enforcing the Basic Principles of EU Law Through Systemic Infringements in C. Closa, D. Kochenov, (eds.), The Rule of Law oversight in the European Union, (Cambridge University Press, 2016), pp. 127-131. See also J.-W. Müller, The Problem with Poland, available at <www.nybooks.com/daily/2016/02/11/kaczynski-eu-problem-with-poland/?print..., who puts it matter-of-factly: “One has to see what the PiS government will do with European money, but in any event the case for cutting EU funds does not have to be based on evidence of outright theft. The Union is founded on principles of mutual trust and, as Treaties put it ‘the duty of loyal cooperation’. Informal negotiations about the next big budget for the Union have already begun. Why pay people who undermine the Union to keep themselves in power? Why buy broccoli for those who say they don’t like it anyway?” (my emphasis).
 

[26] RECOMMENDATION of 21.12.2016 (C(2016) 8950 final) regarding the rule of law in Poland complementary to Commission Recommendation (EU) 2016/1374. 
 

[27] For strong and justified criticism of the Commission’s handling of the rule of law procedure in the Polish case see L. Pech, K. L. Scheppele, supra note 22. 
 

[28] I owe the reconstruction of V. Orbán’s tactic to K. L. Scheppele. For more detailed analysis see her Constitutional coups and judicial review: How transnational institutions can strengthen peak courts at times of crisis (with special reference to Hungary), 23 (2014) Transnational Law and Contemporary Problems 51 - 118, in particular at 87-103 (for the response from the Council of Europe) and at 103-114 (for the response from the EU).
 

[29] For more general analysis see B. Bugaric, T. Ginsburg, The Assault on Postcommunist Courts, (2016) 27 (3) The Journal of Democracy pp. 69-82 
 

[30] Agreements with hell and other objects of our faith, (1997) 65 Fordham Law Review 1703. 
 

[31] J. M. Balkin, R. B. Siegel, Introduction, in The Constitution in 2020, (2009),  p. 4. 
 

[32] D. Landau, Abusive constitutionalism, (2013) 47 University of California Davis Law Review 189, defining “abusive constitutionalism” as the he use of mechanisms of constitutional change in order to make a state significantly less democratic than it was before.
 

[33] See in general S. Levitzky, L.A. Way, Competitive authoritarianism. Hybrid regimes after the cold war, (2010); O. Varol, Stealth authoritarianism, (2015) 100 Iowa Law Review 1673. 
 

[34] The doctrine is clearly aware of the dangers as attested by the growing number of important voices on the subject. See J.-W. Müller, On the side of democracyhttp://www.eurozine.com/on-the-side-of-democracy/; J.-W. Müller, Should the EU Protect  Democracy and the Rule of Law Inside Member States? https://www.princeton.edu/~jmueller/ELJ-Democracy%20Protection-JWMueller-pdf.pdf; J.-W. Müller, Rising to the challenge of constitutional capture. Protecting the rule of law within EU member states, available at available at http://www.eurozine.com/rising-to-the-challenge-of-constitutional-capture/J.-W. MüllerThe failure of European intellectuals? available at http://www.eurozine.com/the-failure-of-european-intellectuals/J.-W. Müller, What, if anything, is wrong with a Copenhagen Commission?, (2013) Transatlantic Academy Working Paper, 24 July; Special edition of the Journal of Democracy October 2007, Volume 18, Number 4 Is East-Central Europe Backsliding?; Special Volume of the Journal of Democracy, January 2016, What’s Wrong with East-Central Europe? and contributions by J. Dawson, S. Hanley, I. Krastev, What’s Wrong with East-Central Europe? and Ch. Walker Lucan Way, The Authoritarian Threat, The Journal of Democracy, January 2016; A. Von Bogdandy, P. Sonnevend, (eds.), Constitutional Crisis in the European Constitutional Area. Theory, Law and Politics in Hungary and Romania, (Oxford/Portland, Hart Publishing, 2015)J. KornaiHungary’s U-Turn: Retreating from Democracy, The Journal of Democracy July 2015; Alina Mungiu-PippidiThe Transformative Power of Europe Revisited, The Journal of Democracy January 2014.  
 

[35] Voices of skepticism are duly noted here, yet such academic critique and parsing of pros and cons of the judicial review is the privilege left for normal times of constitutional routine. It has no place in systems where the very survival of constitutional order is on the line. For an exemplary overview see L. D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review, (2004); M. Tushnet, Taking the Constitution away from the Courts, (1999); J. Waldron, The Core of the Case Against Judicial Review, (2006) 115 Yale Law Journal 1346; R. H. Fallon, Jr., The Core of an uneasy Case for Judicial Review, (2008) 121 Harvard Law Review 1693.       
 

[36] See the argument of the former President of the Polish Constitutional Court, M. Safjan, Politics and Constitutional Courts. A Judge’s Personal Perspective, EUI Working Paper 2008/10. 
 

[37] The Federalist Papers (No. 51), selected and edited by R. P. Fairfield, (The Johns Hopkins University, 1961),  p. 160. 
 

[38] In my understanding “Marbury moment” stands for more than a seminal case decided by any particular jurisdiction, although such a decision might act (and often does) as a catalyst. For me “Marbury moment” signifies a strategic process of planning and executing whereby courts fully realize their mandate and judicial function to defend the constitution and its values. To this might be added a moment at which courts claim powers to control elected officials. This last element is taken from S. A. Koch, Marbury Moments, (2005) 54 Columbia Journal of Transnational Law 116, p. 120 with further references. In the context of my emergency judicial review „Marbury moment” would transcend one particular decision and involve sustained practice of ordinary courts upholding, in the absence of effective Constitutional Court, the Constitution by reviewing constitutionally suspect regulation(s) adopted by the majority. 
 

[39] See his classic treatise Courts. A Comparative and Political Analysis, (University of Chicago Press, 1981).  
 

[40] This apt metaphor comes from O. O. Varol, supra, note 32, p. 1677. 
 

[41] For a thought - provoking analysis G. de Búrca, Europe’s raison d’être, New York University School of Law Public Law and Legal Theory Research Paper Series Working Paper 9/13.   
 

[42] Editorial. Membership in times of crisis, (2015) 51 Common Market Law Review 1. 
 

[43] On ethos of Europe see A. Williams, The ethos of Europe. Values, Law and Justice in the EU, (2010).   
 

[44] I draw here on the influential work of J. Rawls, Theory of Justice, (1971);  (1987) 7 The idea of an overlapping consensus, Oxford Journal of Legal Studies 1; Political liberalism (1993). 
 

[45] For the application see Ch. F. Sabel, O. Gerstenberg, Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order, (2010) 16 European Law Journal 511.  
 

[46] Or what Sir D. Edward perspicuously calls “An appeal to first principles” (unpublished manuscript on file with the Author).  
 

[47] U. Beck, E. Grande, Das kosmopolitische Europa. Gesellschaft und Politik in der Zweiten Moderne, (2007) (my translation).   
 

[48] J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, (Cambridge University Press, 1995), p. 29.