—Marietta van der Tol, Assistant Research Professor and Landecker Lecturer, University of Cambridge
[Editor’s Note: ICONnect is pleased to feature a symposium by the five nominees for this year’s ICON-S Book Prize. This is the first entry in the symposium.]
Marietta van der Tol, Constitutional Intolerance: The Fashioning of the Other in Europe’s Constitutional Repertoires. Cambridge: Cambridge University Press, 2025.
The power of listening
As I walked around Atlanta airport, a middle-aged worker came up to me. He had overheard a casual conversation with a few pensioners from rural Arkansas. I had asked them what they thought my students should know about the elections in the United States. It was only a few days after the presidential elections and the atmosphere was, to say the very least, tense. As he approached me, he teared up and spoke under his breath ‘please tell your students that we’re not all like that – not all of us wanted this’.
As a scholar of constitutions and of constitutionalism, I spend a lot of time with texts: legislation, draft legislation, Parliamentary proceedings, policies, case-law, books, articles, news items, social media posts. A plethora of written sources can give real insight into processes, content, motivations, but it can also take up our research bandwidth at the expense of real insight into the societies that we offer professional commentaries on. It is for this reason that I spend a lot of time in the places that I write about, and where possible, try to learn the language of the people I meet.
This is certainly not without its challenges. When I started studying Hungary, I had no idea how difficult the language would be, but I tried and have still not given up. Very quickly did I experience how language can be a strategic gatekeeper to knowledge. Many well-promoted sources, usually made available in English, fell decidedly into the camp of the ruling Fidesz party: sometimes this was obvious from the apologetic tone, other times it was more difficult to discern. My training in historical methods was often helpful in situating literature as de-facto primary source, while it was no vaccine against wrong impressions.
My go-around the smokescreen of academic, political and legal propaganda was to spend time with well-respected scholars, visit political events, engage with professionals close to the party machinery, organise homestays, and talk a lot with taxi drivers. I was open about my researcher profile but also decided to spend as much time as possible listening and taking notes, rather than probing, questioning or worse, opining. The key was to try to surrender my own assumptions about what my interlocutors might be like, or what their opinions were likely to be.
One time, I was invited to a major political festival held in the heart of Romania. The long drive with two local scholars permitted hours of deep conversation about the regional character, challenges and sensitivities – much of which contained political commentary. We stopped at some churches and culturally significant sites for the Hungarian community in Transylvania, and I saw the way that difference is embodied in these rural spaces, where Fidesz was winning elections. The festival itself was like Fidesz propaganda on steroids, which was more difficult to hear for several days on end, but it also gave insight in the wider context of illiberalism, indispensably so.
Constitutional repertoires
However, I am no ethnographer, and while these experiences are critical to my research process, my legal writing is only secondarily informed by it. In 2025, I published the book Constitutional Intolerance: the fashioning of ‘the other’ in Europe’s constitutional repertoires. This book narrates the impact of right-wing movements on the development of constitutionalism – focusing on the position of ethnic, religious and sexual minorities. In all of this, I wanted to articulate how some of the right-wing discourse rests on discourse developed among ‘the left’: such as invoking the separation of church and state, modernity, and the position of women in the context of Islam. Conservative Christians might hear a threat in the same discourse when clustered around so-called ‘woke’ discussions about secularisation, individualisation and LGBT+ rights. As such, wanted the book to be more than just another publication criticising the left or the right.
For this reason, I chose to focus on structural or systemic dimensions of my argument: the ways in which constitutional repertoires are manipulated through various forms of constitutional ‘interpretation’ and ‘projection’. Whereas many of us would readily identify illiberalism in Hungary’s Fundamental Law, there are other expressions of illiberalism that look less dramatic, can be mostly procedural, and therefore, have a handy capacity for flying under the radar. In this context, I spoke about the changing interpretation of the concept of ‘public order’ in France and the Netherlands, which over a decade fundamentally changed in character from concrete security concerns to the projection of certain social norms. My argument is that constitutionalism needs to have a story of ‘the common’, which does not rely on changing majorities and minorities.
I decided to write detailed chapters on France and the Netherlands, looking at the span of years over which legislation on the full-face veil evolved. Relative to Hungary, these cases were niche, but I thought the conceptual tensions were just as rich. If we made the protection of all sorts of human rights dependent on how any ruling party wield social norms in lieu of public order, what then remains of legal certainty? While I think there is a fundamental honesty in recognising the issues with intolerance in these well-developed democracies, one cannot compare these countries like-for-like.
It is right to spell out how illiberal politics have disproportionately impacted both Polish and Hungarian societies, but again differently so. In this regard, my chapter on Hungary is perhaps the most elaborate. Here intolerance was not just a matter of constitutional interpretation but actively written into the constitution and projected onto the very notion of constitutional identity. This was of course made possible by the two-thirds majority that Fidesz held in the Hungarian Parliament, and which many of us were led to believe to likely be a permanent feature of Hungarian politics.
The chapter itself focuses on the fairly niche case of Gabor Iványi and the unrelenting attack of the Fidesz administration on the religious organisation that he leads, culminating into litigating the freedom of religion before the European Court of Human Rights and amending the constitution to mend the problems the Court identified. Over time, the impact on the church had been significant: the downgrading of legal status, the suspension of subsidies, false allegations of fraud, raiding of the office, and even putting the treasurer in administrative detention. All of it ended up being baseless, but the organisation was already on the brink of bankruptcy.
While the analysis of the case rests on ‘the written stuff’, I could not have situated this case without the broader context of widespread corruption, the complete defiance of constitutional protection that every Hungarian has a right to, or without the overt attempts to export ideas, policies and practices to other countries that are relatively secure in their democracy. Over the years, I realised the function of the culture war rhetoric was not simply to foster polarisation or cement power, but to distract from the more illicit activities of the Fidesz government.
A paradigm shift
This realisation prompted a change in positionality. Whereas I had valued listening to the different sides (and I still do!), I realised that Fidesz was not just one political side. It was also a machine that covered up all sorts of organised crime. As a scholar of constitutions and constitutionalism, I realised that listening to different opinions should not obscure my judgment about the larger implications of the illiberal project: the weakening the recourse that ordinary citizens against gross abuses of power and the magic disappearance of money from the public purse. For this reason, I included some of my observations in the book, but also used short citations at the start of each chapter to convey my worries. The chapter on Hungary has a meaty citation from John Locke, on the hypocrisy of claiming Christ when one’s behaviour is not in accordance with it.
When I visited Hungary in April this year, it was clear that the public was completely fed up with Fidesz. People were openly laughing at their government and the bizarre actions it had taken to try to cling to power. It was scandal after scandal in the months leading up to the election. About 100.000 young people attended a ‘break the system’ concert in Heroes’ Square, and when throngs of people turned out to vote in the early hours of Sunday 12 April, it seemed possible that Fidesz would lose. Now, elections, mandates and politicians do come and go, but Fidesz had built quite the imperium economically, politically, and constitutionally.
At his inauguration address, Péter Magyar spoke of a comprehensive review of the constitution. This is only on the table because his Tisza party managed to win a two-thirds majority. Though this will make aspects of re-democratisation easier than in Poland, he will have to contend with a sprawling of Fidesz loyalists across the country’s major (and minor) institutions. Rather than presenting it as a mere undoing of the damage, he presents it as a new chapter in Hungarian history, a new opportunity to define what the state is to the Hungarians. It is enthusiastically received by the crowds and perhaps in Central-European fashion, he is hailed like a saviour.
If he does indeed deliver this, Magyar could possibly take his place among the more significant statesmen in Hungarian history, and set an example of what post-populist politics could look like elsewhere. Interestingly, this alternative to right-wing politics looks pretty conservative, and possibly populist. Magyar called out elites and their globalist ambitions, and claims to defend the nation, to cooperate with churches, and to support families. At the same time, his commitment to the rule of law, democracy, and service transcend political colour. His appeal to equality, justice, liberty and reconciliation show that his concern is the Hungarian nation writ-large.
I mentioned earlier that I don’t care as much for the left-right divide. I think it is crucial to the work of scholars of constitutionalism to see beyond the politics of the day and yet pay attention to the processes and events that bring about possible paradigm shifts. What we are witnessing in Hungary is that sort of paradigm shift, one that unfolds in real time and will take time to translate into ‘the written stuff’ that our field tends to focus on. This is where the humanities and social sciences can be a real gift to our work and should most certainly not be regarded as the ‘lesser’ kind of methodology.
As I was about to set off to the UK, a friend gave me one of the few Tisza posters he found as an historical artefact for my office. While I was very grateful for this gift, I felt slightly awkward about carrying a poster like this around the airport. This time, one of the airport workers told me how this was not just an election, but regime change and asked if I realised how important this is for Hungarians. She was visibly envious of the poster. I had no idea whether she was progressive or conservative, and it did not matter.
Perhaps the main take-away is that the end of politics is not just more of the right or more of the left, but a firm commitment to a form of common life, democracy and constitutionalism that can contain the very tensions that arise from the differences that, to one extent or another, are and always will be between us, but which do not need to define us.
Suggested citation: Marietta van der Tol, Constitutional Intolerance: Going Beyond the ‘Written Stuff’, Int’l J. Const. L. Blog, Jun. 23, 2026, at: http://www.iconnectblog.com/constitutional-intolerance-going-beyond-the-written-stuff/