–Tomasz Tadeusz Koncewicz, University of Gdańsk, 2017-18 LAPA Fellow, Princeton University, currently Visiting Professor, Radzyner Law School, IDC Herzliya
Tread softly because you tread on my dreams
–W.B. Yeats, The Cloths of Heaven
Recent weeks have seen the biggest mass protests in Poland since 1989. In major Polish cities thousands were out in the streets and made their voices heard. People were protesting against the relentless capture of their public institutions, most notably the courts.
The brutal assault on the Supreme Court and the judiciary sparked the popular revolt, forcing President Duda to veto the draft laws on the Supreme Court and the National Council of the Judiciary (on the legislative scheme to bring the judiciary to heel, see here). This public defiance was not spurned by the opposition parties that suffer from their own credibility issues.
What should we make of this popular mobilization after two years of relentless capture and accompanying passivity of the citizenry? These protests were apolitical and political at the same time, creating a synergy not seen in Poland (or even in this part of Europe) for years. Something constitutionally momentous may be happening: a constitutional moment in the defense of the Constitution and the integrity of the legal system. As such, it forces constitutionalists in Poland to move beyond mere textual exegesis and to focus more on the constitutional context. The former has always been the dominating feature of constitutional analysis, yet it is an inadequate tool to explain what has happened in Poland over the last weeks. It is the latter–context–that will will help us start connecting the dots to understand the forces behind the protests.
The context is defined here as constitutional fidelity to the values underlying the constitutional document. My argument here is that constitutional fidelity 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 constitutional capture and paranoia.
Constitutional fidelity is more than a duty and an obligation to observe the text. As Jack Balkin explains, constitutional fidelity:
[i]s 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.[1]
Being faithful to the document and the institutions it creates is more a state of mind than mere practice. As such constitutional fidelity has a lot in common with constitutionalism which is not only about the document, but rather about limited government and a culture of restraint.
Fidelity can refer to the original meaning of the constitutional document, to its fundamental core or to the text as such. It can also speak to the principles and concepts embedded in the Polish constitutional structure and tradition–principles that make up our constitutional identity.
Fidelity thus has the potential to illuminate who we once were, where we came from, where we are headed and finally also who we are today. Each constitutional document has its past, present and future and these three temporal dimensions are linked by underlying principles of values.
Principles and values that make up our constitutional identity must be interpreted so as to ensure both continuity and durability. What is needed is the compromise and equilibrium between necessary change that embraces the new and the stability that caters to 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 both conservative (preserving values) and reformative (reading these in the light of ever-changing circumstances). This understanding of fidelity underscores the aspirational function of our constitutional document. It aspires to reflect “us” in the best, but not the perfect, way. It aspires to capture this reflection, and yet it will never achieve this goal since “we” change and evolve along with the document. Most importantly, then, constitutionality fidelity provides a conceptual framework to understand the forces and emotions behind the mass protests that we have recently witnessed in Poland.
Fidelity as Pacting
The preamble to the Polish Constitution shows the commitments to which Polish nation aspires. The Constitution’s commitments have not been yet met. This neverending link between the past and the future is the basis of pacting, which must be undertaken by each generation. Each has its own distinctive role to play in spelling out what the constitutional pact mandates today.
It is in this sense that the constitutional fidelity is about generational reading of the document. It is not about uncritical iconoclasm. It is through pragmatic recognition that our constitutional allegiances are shaped, reshaped, reexamined as we move forward and as the world around the constitution changes and fluctuates.
The past, as Balkin and Siegel write, must be used in a constructive way: “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.”[2]. Each generation should build on the best of its past.
My Courts and My Constitution
All of this takes on special importance in our times of constitutional humiliation, with the Polish Constitution under systemic attack. That is why the defiance to our public institutions must be read in the light of more general recent trend of professing the allegiance to the Constitution by various quarters of Polish society. It not only affects the meaning and direction of the Polish Constitution, but also impacts its very survival. Our fidelity to the Constitution should be an expression of loyalty to the great moments of our history and the past that have been marked by plurality of voices and respect for the Other in the best Polish tradition of openness and tolerance.
The 1997 Constitution is only part of this tradition. The rule of law, democracy, freedoms and rights, a well-functioning system of judicial protection, a constitutional court with a strong record of human rights protection are all built on the tradition of limited government, separation of powers, the centrality of the individual and respect for the self -imposed rules that had been a staple of Polish constitutionalism.
As we move forward, the challenges are many, and ready answers few and far between.
We are entering the constitutional terra incognita as the citizenry is faced for the first time post-1989 with a tall order of bottom-up, rather than dominant top-down mobilisation.
Let us appreciate that this time around, when the fate of the entire Polish judiciary is on the line, the narrative has changed dramatically from the popular passivity that accompanied the demise of the Polish Constitutional Court to the recent protests in the country.
To understand this new popular engagement, we must read the moment through the prism of constitutional fidelity. As we continue to rediscover our fidelity, the present generation of Poles has a special responsibility to balance the past and the future against the present dangers to the very survival of our constitution.
Make no mistake. Polish democracy and the rule of law will not be saved by the European Commission enforcing European values against yet another rogue government or by lawyers, no matter how many, coming together. The rescue package must come from within as an expression of our constitutional fidelity. After all, “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.”[3]
With their vociferous protests, Poles have at least started doing something to themselves in order to remain faithful to their constitutional document. This is only the beginning, though. As important as this popular constitutionalism has been in recent weeks, a word of caution is in order. Bearing in mind the not-so-distant popular indifference to the dismantling of the Polish Constitutional Court in 2015 – 2016, the big question is whether “We Poles” will sustain the effort we have begun.
Suggested Citation: Tomasz Tadeusz Koncewicz, Constitutional Fidelity and the Polish Constitution, Int’l J. Const. L. Blog, Aug. 11, 2017, at: http://www.iconnectblog.com/2017/08/constitutional-fidelity-and-the-polish-constitution
[1] J. M. Balkin, Agreements with hell and other objects of our faith, (1997) 65 Fordham Law Review 1703.
[2] J. M. Balkin and R. B. Siegel, Introduction, in The Constitution in 2020, (2009), p. 4.
[3] J. M. Balkin, supra note 1.
Comments