Institutional Inertia, Democratic Consolidation, and the Politics of Constitutional Renewal in Post-Communist Central Europe  ¹  

Abstract

An extraordinary amount of scholarly attention has been focused on the efforts to institutionalize democracy's third wave. Political scientists to date, however, have largely neglected the comparative study of how new constitutions are born. In an effort to bridge this gap in the literature on democratic transition and consolidation, this study investigates the relationship between communism's institutional legacy and early constitutional decisions in Poland, Hungary and the former Czechoslovakia's transitions to democracy. It argues that the trajectory of constitutional politics in the post-communist context was shaped by both the form and timing of the old order's demise. In all three countries, however, choice on matters of constitutional import was bounded by more than institutional inheritance and the transition context alone. The political beliefs that dissident democratizers initially relied upon to make sense of revolutionary circumstance were themselves transformed by the practice of transition politics; individuals who first viewed the adoption of new constitutions as a secondary concern over time reassigned this task top priority. These changing elite preferences are important for understanding the manner in which constitutional conflict was either resolved or contained in each country. Since preference reformation is only discernible through careful consideration of individual cases, this suggests that area-specific knowledge and rational choice paradigms of interest-based strategic interaction are potentially complementary rather than adversarial intellectual endeavors.

I. Introduction

An extraordinary amount of scholarly attention has been focused on the efforts to institutionalize democracy's third wave. ² These studies generally fall into one of two principal categories. ³ The first, structural explanations focusing on macro-level variables, have advanced our knowledge of the preconditions that facilitate successful democratic consolidation. ⁴ The second, process-oriented analyses preoccupied with micro-level variables, have increased our understanding of the interaction between government and opposition political strategies in shaping the trajectory of attempted transitions to democracy. ⁵ Social scientists, however, have largely "neglected" the comparative study of "the contexts in which constitutional formulas are adopted or retained." ⁶ This is an oversight, for one potential means of teasing out linkages between macro and micro-level explanations of transition outcomes is through the comparative examination and evaluation of elite strategies for remaking the constitutional order.

The domestic opponents of communist regimes all faced a common and immediate problem once it became clear that the existing order in their respective countries could no longer lurch on: What was to be done with the abundant legal inheritance from the totalitarian era, especially the fictional constitutions that allegedly laid out the foundational rules of political life in the people's paradise? Since the rulers of the one-party state had operated outside and above the law, it would seem to follow that their opponents should conduct themselves otherwise, and simply demand that the existing laws be obeyed. Yet how could this be deemed democratic action, when those same laws were the embodiment of the very system that the proponents of democracy sought to transform?

While the actual choices faced in each state were all circumscribed by the realm of the politically possible, aspiring democratizers in the post-communist context could follow three mutually exclusive paths to constitutional reconstruction. First, the custodians of the transition could restore pre-communist constitutions, where they existed. Second, post-communist elites had the option of pursuing a strategy of "radical continuity," whereby the communist constitution would be accepted as the law of the land only to be amended beyond recognition following its own amendment rules, in this way pursuing a "revolution by constitutional tinkering." ⁷ The path of radical continuity, in short, consists of grafting revolutionary amendments onto an undemocratic constitutional base. Third, proponents of change could renounce the constitution of the ancien régime  and concentrate their efforts on drafting a brand new charter, either adopting an interim basic law to govern politics until that task was completed or promulgating a new constitution concurrently with the retirement of the old.

The third option is the one that citizens of the West, especially Americans, typically associate with liberal revolution. It is a course that democratizers in South Africa , for example, have pursued with success to date (a new constitution being ratified in 1996, replacing the 1994 interim document). Germany's, Italy's, Portugal's, Greece's, and Spain's contemporary democracies were also established in this general fashion. ⁸ Yet the transition to democracy in Poland, Hungary, and the former Czechoslovakia did not follow this course. Post-communist elites in all three of these countries endorsed the constitutions of the outgoing order as a point of departure for democratization until new constitutions could be drafted and ratified. Each found the task of agreeing on a new constitutional framework to be more rather than less difficult as the initial revolutionary euphoria evaporated. Thus, more than eight years after the official collapse of communism in Europe, democratic Hungary continues to be governed by a heavily amended version of its former communist constitution, while Poland was ruled until May 1997 by what was first promulgated as an incomplete interim agreement, the so-called "Little Constitution." The federal government of Czechoslovakia was unsuccessful in its quest for a new constitution, although both successor states have since symbolically and legally renounced the constitutional framework bequeathed to them by the communist experiment, ratifying brand new constitutions in the latter half of 1992.

In an effort to bridge a gap in the literature on democratic transition and consolidation, this study investigates the relationship between communism's institutional legacy and early constitutional decisions in Poland, Hungary and the former Czechoslovakia's transitions to democracy. It argues that the trajectory of constitutional politics in the post-communist context was shaped by both the form and timing of the old order's demise, which in turn set the parameters for subsequent democratic development. In all three countries, however, choice on matters of constitutional import was bounded by more than institutional inheritance and the transition context alone. The political beliefs that dissident democratizers initially relied upon to make sense of revolutionary circumstance were themselves transformed by the practice of transition politics; individuals who first viewed the adoption of new constitutions as a secondary concern over time reassigned this task top priority. These changing elite preferences are important for understanding the manner in which constitutional conflict was either resolved or contained in each country.

The discussion that follows is divided into two principle sections. In the first, I compare the circumstances that led to the method of radical continuity being chosen in Poland, Hungary, and the former Czechoslovakia. I argue that Czechoslovakia was headed down the same constitutional path as Poland and Hungary, although for different reasons, until the Czech-Slovak conflict intervened. In the second section, I explain how retaining the communist constitution as a stop-gap measure in the Czecho-Slovak context exacerbated rather than ameliorated tensions between the federation's two members. The experience of constitutional deadlock at the federal level, however, actually facilitated constitution-drafting at the republic level, making it possible for the successor states to learn from the mistakes of their parent. I conclude by exploring the implications of early legal choices in these four countries for their subsequent democratic development, and reflecting on the significance of my findings for theory-building in the study of regime change. Throughout, I devote disproportionate attention to events in the former Czechoslovakia in an effort to explain how and why the Czechs and Slovaks managed to succeed in securing an early radical constitutional break with the past while their Polish and Hungarian neighbors did not, even though all three of these countries initially chose to accept communism's constitutional legacy as a point of departure for fundamental reform.

II. Constitution-Drafting Patterns In Poland, Hungary, And The Former Czechoslovakia

In Poland, Hungary and the former Czechoslovakia, the transition to democracy was negotiated through Round Table Talks between the outgoing communist order and the democratic opposition. In each country, the transfer of power transpired in complete legality; that is to say, through a negotiated settlement consistent with existing law, rather than radical renunciation of the ancien régime  and its legal apparatus. ⁹ The precise reasons why this particular path was chosen, however, were different in each country.

Poland

Until May of 1997, democratic Poland was governed by a patchwork collection of remnants of the heavily amended 1952 Stalinist constitution, with those unsystematic modifications supplemented by a constitutional law, the so-called "Little Constitution," which was ratified by the Sejm  in October 1992. ¹⁰ The Little Constitution attempted to clarify the legal relationship between executive and legislative power in post-communist Poland, but was mute on the organization of the judicial branch or the protection of civil rights. ¹¹

The Round Table Talks in the Spring of 1989 between the leaders of Solidarity and the communist regime resulted in a compromise agreement on the future political structure of the country and the rules that would govern the first partially free elections. Convinced of the permanence of their power, the Communists agreed to restore the upper chamber of the Polish Parliament, the Senate, which they had abolished after World War Two. All 100 seats in that body would be contested, but 65% of the seats in the lower chamber, the Sejm , were to be reserved for representatives of the regime and its allies. ¹² Both parties to these negotiations believed that the compromise gave the Communists effective control of the political system. The June 4, 1989 elections, however, proved otherwise. Solidarity candidates swept 99% of the seats in the Senate and all of the contested seats in the Sejm , often by embarrassingly overwhelming majorities. Solidarity's resounding victory gave the opposition the upper hand in shaping the country's constitutional direction, as they were the only political actors who could claim to speak for the Polish people. ¹³

After the semi-free elections, the new Solidarity-led government proposed a series of constitutional amendments designed to modify the Stalinist constitution to facilitate democratic governance. From the start, however, these amendments were regarded as stop-gap measures intended to smooth the transition to new constitutional forms. Restoring the so-called April Constitution of 1935 was not a viable option, because of its unavoidable association with the Pilsudski dictatorship.

In early 1990, the Sejm  appointed a special Constitutional Committee and assigned it the task of preparing a new constitution. The original plan was for the Constitutional Committee to submit its finished product to both houses of parliament for approval, followed by a national referendum to ratify the document as the law of the land. Although this plan was never formally renounced, the described sequence of events would never take place as envisioned. ¹⁴

Andrzey Rapaczinski, a Columbia University Law School Professor who served as an expert advisor to the Constitutional Committee of the Polish Parliament, cites four reasons why the plans for Polish constitutional renewal were initially derailed.

First, the Round Table Sejm  charged with drafting the new document was not the product of fully free elections; remember, 65% of the seats had been reserved for representatives of the outgoing order. Hence, the Sejm's  Constitutional Committee did not have full democratic legitimacy; in contrast, the Senate did. Perhaps not surprisingly, the Senate quickly convened a rival Constitutional Committee and began work on a draft of its own, even though the 1952 constitution that was ostensibly governing Poland in the interim period delegated the matter of constitutional change to the Sejm . ¹⁵

Second, the composition of the Sejm's  Constitutional Committee caused some concern. Oddly enough, Solidarity members on the Committee, who were the original force behind the new constitution project, had little interest in the substantive questions of institutional design. Consequently, despite Solidarity's domination of the Constitutional Committee as a whole, supporters of the undemocratic past controlled the sub-Committee on Institutions, which was charged with drafting the mechanics of government in the new document. ¹⁶

Third, the rift in Solidarity that divided Lech Walesa's Gdansk group and that of the Warsaw intellectuals further undermined the prospects for a new constitution. That the rival Warsaw group dominated Solidarity's leadership in the Sejm  led Walesa to denigrate the Sejm  committee as an organization unfit to orchestrate the transition to a new order. From its perspective, the Warsaw group saw its work on constitution-drafting as a vehicle for checking Walesa's power lust. ¹⁷

Finally, Walesa's easy victory in the December 1990 presidential elections over the Warsaw intellectuals' candidate for president, Tadeuz Mazowiecki, only served to delegitimize irreparably the work of the Sejm's  Constitutional Committee. ¹⁸ The Polish people had elected as their president one of the main critics of the Round Table Sejm's  efforts to formalize the new rules of the game. ¹⁹ While no one could have been able to foresee that the national consensus forged in the revolutionary events of 1989 would so quickly unravel, a window of opportunity for drafting and ratifying a brand new constitution had for all practical purposes closed for Poland by the end of 1990, constitutional politics from that point on growing all the more politicized. ²⁰

Potentially complicating matters still further, post-communist Poland's main supervisory and judicial review bodies were institutions that the communist regime had founded in the 1980s as concessions to the Solidarity movement. ²¹ The Constitutional Tribunal, Poland's Constitutional Court, established in 1982, was first "elected" in 1985. The State Tribunal, a body that rules on potential legal violations by public officials, was created in March 1982. As these organs were designed to operate in a completely different context, it is not surprising that both their structure and their jurisdiction turned out to be less than fully adequate for democratic conditions. To make things worse, each of these institutions was and is staffed by the Sejm . ²² Yet since the Sejm  was not a fully democratic body until the October 1991 parliamentary elections, these important structures continued to be dominated by representatives of the old order well after the revolutionary events of 1989. ²³ In this sense, Poland's early democratic development was at first monitored and reviewed by less than ardent supporters of liberal democracy. Efforts to complete the constitutional project were unsuccessful until reconstructed communist Alexander Kwasniewski's election as president in November 1995. ²⁴ Since 1993, Kwasniewski had served as Chair of the Parliament's Constitutional Committee, the body charged with drafting a new constitution. While former president Walesa would surely have vetoed any constitution generated by the Kwasniewski commission, prolonging the constitutional stalemate, Kwasniewski's election removed this impediment.

Arriving at a draft that might receive the approval of Parliament proved to be an arduous process. The proper relationship between church and state was the most contentious issue. Further, parties of the right wanted the new constitution to ban abortion. In this they were unsuccessful, but they did manage to secure constitutional guarantees that Poland would not legalize same-sex marriages. ²⁵ The introduction to the draft that ultimately emerged reflects the conflicts that were part of its creation:

With concern for the fate and future of our country, having in 1989 regained the opportunity for sovereign and democratic decisions upon its fate, we the Polish nation, all the citizens of the Republic, both those believing in God as the source of truth, justice, good, and beauty, as also those who do not share that faith and draw those universal values from other sources, equal in their rights and obligations in relation to the mutual good of Poland, grateful to our ancestors for their work, for their struggle for independence, bought with enormous sacrifices, for a culture rooted in the Christian legacy of the nation and in universal human values, drawing upon the best traditions of the First and the Second Republic, with a sense of responsibility before God or else before our own, human conscience, bring into existence the constitution of the Polish Republic. ²⁶

Once both chambers of the Polish parliament had endorsed a new constitution, it was then presented to the Polish people for final ratification via referendum. ²⁷ Solidarity Electoral Action (AWS), an anti-communist coalition of no less than 37 rightist parties, headed by the leader of the Solidarity Trade Union, Marian Krzaklewski, was the most vocal opponent of the document that was finally endorsed by the National Assembly . AWS urged Polish voters to reject the proposed constitution, arguing that it was a creation of former communists, and consequently was inappropriate for a Catholic nation. In addition, it argued that adopting the new constitution would result in the surrender of hard-won Polish sovereignty to international organizations, such as the European Union. ²⁸ In response, president Kwasniewski sent a copy of the draft constitution to every Polish family, maintaining that it was precisely the prospect of EU and NATO membership that made ratification of the utmost importance. Poland, after all, did not want to enter negotiations with these international bodies with a provisional set of laws. ²⁹

On May 25, 1997 Polish voters went to the polls. Fifty-three percent of those voting endorsed the new constitution, but only 42% of the electorate participated in the referendum. In a strange twist of fate, democratic Poland had at last made a clean break with its communist past, yet the document that might have symbolized and embodied that action had been the creation of former communists, not of Solidarity. Polish democracy, ironically, was sanctified by those who had once opposed its institution, rather than the courageous individuals who brought the old order crashing down. Small wonder, then, that the Polish people, despite Kwasniewski's mass mailing, seem to have concluded that the actual substance of their new basic law could hardly be important. If appearances do indeed correspond with reality, this lack of interest is perhaps the most unfortunate consequence of the political party-driven constitution-making process that Poland's seven year interim period produced.

Hungary

In contrast to the situation in Poland, where the communist regime was negotiating with Solidarity at  a Round Table, the Hungarian Communists were negotiating at  a Round Table with  a Round Table of opposition forces (hereafter designated by its Hungarian acronym EKA to minimize confusion). EKA was an umbrella organization that brought together the most important groupings in the opposition. ³⁰ The circumstances in which constitutional issues were addressed, moreover, were very different in Hungary than they were in Poland. In Hungary, the issue of reforming the 1949 constitution was first raised by the Communist Party [The Hungarian Socialist Worker's Party or HSZMP] well before its monopoly of power was seriously threatened. The ruling party began a process of legal reform in the 1980s that culminated in a draft constitution in 1988. As a result, EKA was in a difficult position vis-à-vis constitutional matters from the start of its negotiations with the communist regime. With a draft constitution in hand, the communist government had already devoted considerable time and energy to devising a legal strategy that would enable the regime to claim credit for democratic development, while preserving the Party's privileged position in the reformed political order.

This unique history was reflected in the dynamics of the negotiations on matters of constitutional import at the Round Table Talks. Since the regime's representatives presented themselves to the opposition as resident experts on legal matters, every time a specific problem was not considered to be politically important by EKA, they would simply defer to the judgment of the Ministry of Justice. In instances where EKA was less than fully compliant, the Party's negotiators would threaten the opposition with their power to rush new legislation through parliament, with or without their approval. In this way, the government drove the amending process, while simultaneously being able to claim that the legal products of their negotiations with the coalition of opposition forces had been endorsed by the opponents of communist legality. ³¹

The Round Table Talks produced a radically amended constitution - approximately 95% of the words were new - which sailed through the ancien régime -dominated Parliament without any discussion. These changes were packaged, despite their radical nature, as an amendment to the existing Stalinist-era constitution, rather than as a brand new document, primarily because the 1989 law on referendum stipulated that a new constitution had to be put to the Hungarian people in the form of a referendum, and there was neither time for nor interest in traveling this road. ³² The task of drafting a new constitution for post-communist Hungary was instead delegated to the first democratically elected parliament. Meanwhile, in an attempt to distance themselves from the errors of the past, the members of HSZMP, all unavoidably associated with the old order, voted by a large majority on 8 October 1989 to create a new party, the Hungarian Socialist Party [MSZP]. ³³ The amended constitution was then ceremoniously instituted on 23 October 1989, the 33rd anniversary of the 1956 revolution. ³⁴ The document itself explicitly states that it is meant to serve as the basic law of the land only until a new constitution can be enacted. ³⁵

Despite the name change, the MSZP was soundly defeated in the March and April 1990 elections. ³⁶ The main victors were two post-communist political groupings, the Hungarian Democratic Forum [MDF] and the Alliance of Free Democrats [SZDSZ]. Together, they received 46% of the popular vote, but with the 4% threshold for entry into parliament stipulated by the 1989 electoral law, the two opposition parties wound up gaining more than 2/3 of the seats in parliament. ³⁷ This had powerful implications for constitutional politics, since amending the constitution required but a 2/3 majority in Hungary's single chamber parliament. Thus, the freely elected Hungarian parliament continued on the same road to democracy through constitutional reform as had their less than democratic predecessor, rather than changing course and pursuing a radical break with the legality of the communist system.

The idea that a wholly new constitution would one day be promulgated in more traditional fashion persisted but was placed on the back burner, and the amendment process continued throughout 1990 until approximately 95% of the clauses had again been rewritten. ³⁸ In this sense, the true framers of Hungary's present constitution span the political spectrum, with the principal framers including both the parties to the Round Table Talks of 1989, especially the ruling communist party as well as the two parties empowered by the 1990 elections, the MDF and the SZDSZ. ³⁹

The newly elected Parliament's fateful decision to work with the constitutional status quo rather than overturning it conferred a degree of "backward legitimacy" on those portions of the evolving document that had been forged by less than democratic means. In accepting the constitution bequeathed to them by the ancien régime , the new Parliament legitimized that document, but at the same time missed the moment, difficult to recreate, when it might have been possible to make a radical break with the past by adopting an entirely new constitution. ⁴⁰ Since the evolving text that emerged through perpetual amending was a creation of both old and new elites, the line between Hungary's outgoing order and her democracy in the making was inevitably blurred. In the process, since parliament was the province of constitutional change, the content of Hungary's ever-changing constitution was rendered a potential tool in the hands of rival political parties, rather than providing a set of relatively permanent rules by which the democratic political game was to be played. Constitutional politics collapsed into ordinary politics.

The 1994 parliamentary elections, which marked the resurrection of reconstituted communists as the dominant political force, only rendered the story of constitutional renewal all the more byzantine. The once dominant right-leaning MDF, who as of February 1996 had a mere 4% approval rating among the Hungarian electorate, secured a mere 38 seats in parliament. The liberal SZDSZ was also dealt a significant blow, winning only 69 seats in the 386 seat parliament. In contrast, the MSZP, led by a former communist who once served as Hungary's foreign minister, Gyula Horn, won a clear majority [209 seats] in parliament. To allay international fears that the reform process had ground to a halt, the MSZP voluntarily governed in coalition with the SZMSZ, who were given 3 of 12 ministerial posts. ⁴¹

In the election campaign, a majority of the political parties had viewed the framing of a new constitution to be a top priority for Hungarian democracy. ⁴² The unlikely coalition that emerged recreated the 2/3 majority in parliament needed to pass a wholly new constitution, but the new coalition partners allied the fears of those they had just defeated by agreeing to create a constitution-drafting committee in the new parliament with substantial opposition representation. Further, that committee itself established rules to ensure that the new draft it produced was a product of consensus. ⁴³

After a year and a half of work, the committee produced a set of detailed guidelines for a final draft of a new Hungarian constitution, as well as an accompanying set of 93 amendments expressing reservations about the content of that draft. Both were submitted to the unicameral parliament for approval in May 1996. The amendments were brought to a vote first, and failed to pass by a mere 5 votes, largely due to unexpected foot-dragging on the part of members of the Hungarian Socialist Party. The guidelines themselves were never submitted to a vote, bringing the long-standing attempt to secure a new constitution to an at least temporary halt. ⁴⁴

There are prominent voices on the Hungarian political stage -- among them key members of the Hungarian Socialist Party as well as the president of the Constitutional Court, László Sólyom--who believe that the quest for a new basic law has become unnecessary. In their view, the existing constitution "works" when it is informed by precedent. ⁴⁵ Of course, this bestows an enormous amount of responsibility on the Constitutional Court to specify content where ambiguity prevails. Yet key opposition parties in parliament, as well as the SZMSZ have refused to abandon the quest. ⁴⁶ The simple fact remains that the existing constitution was forged in large part by what were then the opponents of liberal democracy. The constitutional synthesis of 1989-90, moreover, was never ratified by referendum, as the "Law on Referenda" stipulates that it must, if it is to be anything other than an interim constitution. ⁴⁷ These circumstances coupled with the all too predictable political opportunism combine to make it likely that Hungary's parliament will continue to double as a constituent assembly for the foreseeable future, even if "the discussion of basic rights now goes on in front of empty benches in Parliament." ⁴⁸ Czechoslovakia

The governing coalition that emerged from the Czecho-Slovak Round Table differed from its Polish and Hungarian counterparts in one critical respect: when the dust had cleared, the opposition had effective control of both domestic and foreign policy. While the interim Government of National Understanding formed by Marián âalfa on December 10, 1989 looked like a power-sharing arrangement on paper, in practice, it was not. Communist premier Ladislav Adamec had attempted to stack the first interim government, but overplayed his hand and was forced to resign, which effectively handed de facto power to the dissidents. ⁴⁹ With respect to matters of constitutional import, therefore, the makers of the Velvet Revolution had unrivaled potential  power to remake the institutions of the communist regime.

Even though the Czechoslovak communist regime was of the hard-line variety when compared with its reforming Warsaw Pact allies (the Czechoslovak Communist Party's initial reaction, to glasnost in the Soviet Union, for example, was to stop selling Pravda  in Prague), its minions had belatedly set out to work on a new constitution that might incorporate the Gorbachev agenda. The Communist Party member who was to eventually lead the Government of National Understanding, Marián âalfa, had served the old regime since 1988 in the position of Federal Minister for legislation. In that capacity, he had been head of the committee in charge of drafting a new constitution, which had been scheduled to go into force in 1990. ⁵⁰ By âalfa's own account, the Party's new draft mentioned neither the leading role of the Communist Party nor Marxism-Leninism. Consequently, Civic Forum's request early on in the round table talks for the removal of the Party's leading role from the constitution was immediately acceptable to the government in principle, so long as the changes were implemented according to existing legal procedures. ⁵¹

Although it was potentially part of its arsenal, the Czechoslovak government did not deploy constitutional reform as a strategic weapon for preserving the Party's power in its negotiations with the opposition over the future of the country. Nor did they adopt the Hungarian strategy of attempting to outflank their opponents by posing as the real agent of democratization. The marked difference between the character of the Polish, Hungarian and Czechoslovak Round Table Talks is the extent to which constitutional renewal was not a prominent topic for discussion in Prague. This is a decision that merits explanation, given that the dissidents around Václav Havel had worked on constitution drafting prior to November 1989, and actually had a draft of a new federal constitution in hand as of December 5, 1989. ⁵²

Indeed, on several occasions, the opposition seemed to treat the existing constitution with greater reverence than did its actual creators; for example, it was future Finance Minister Václav Klaus, not a member of the government negotiating team, who urged president Gustav Husák to appoint the members of the interim government before resigning, so as to adhere to the letter of the law. ⁵³ Although in December 1989 the Party's representatives proposed holding immediate direct elections to the Presidency, which would have enabled the opposition to appeal over the heads of the Federal Assembly that had been "elected" in 1986 directly to the Czech and Slovak people, Civic Forum insisted that Czechoslovakia's new caretaker president be appointed by the Parliament, as specified in the old regime's constitution. ⁵⁴

The conciliatory approach of Civic Forum negotiators on constitutional issues in part explains why the outgoing order in Czechoslovakia never had to maneuver to co-opt the process of constitutional change; largely, they were not forced to do so. Both opposition and government were in surprising tacit agreement that the existing point of departure for the transfer of power would be the communist constitution, albeit for different reasons. ⁵⁵ Given that their demands for constitutional amendments were all accepted with little resistance, and that the balance of power was in their favor, why did the makers of the Velvet Revolution from the outset embrace a conservative approach to the necessary transformation of the country's basic law?

In framing an answer to this question, there are at least three factors that are of critical importance. First, the hard-line nature of the Czechoslovak communist regime certainly must be taken into account. It was difficult, at the time, to imagine that the apparatus would accept substantive change without a fight. While the fear level at the Polish and Hungarian Round Table Talks was also palpable, given that both sets of negotiations, unlike their Czecho-Slovak equivalent, took place before the fall of the Berlin Wall, this must be weighed against the mitigating factor that the cost of a crackdown was higher for reform communists than it was for unreconstructed party members of the Czech and Slovak variety. law. ^{Second, in many respects, Civic Forum was understandably wholly unprepared for the breathtaking pace of possible change. As Timothy Garton Ash's oft-cited phrase aptly illustrates, it took ten years to make the revolution in Poland, 10 months in Hungary, and 10 days in Czechoslovakia. 56} Czechs and Slovaks did not have the luxury of self-consciously reflecting on the course that the revolution was taking while they were negotiating; there simply was not enough time in the day. Viewed in this context, it is perhaps unsurprising that when in round two of the negotiations communist premier Adamec unexpectedly asked the opposition to propose candidates for ministerial positions, Civic Forum first refused to do so, only presenting the regime with a list of names a full week later. Small wonder, then, that Adamec complained that Havel and his compatriots wanted power without responsibility. ⁵⁷

Finally, and perhaps most importantly, Havel himself, Civic Forum's indisputable leader, does not seem to have believed that a new constitution belonged at the very top of the democracy movement's list of priorities. In his dissident writings and early presidential speeches, Havel repeatedly stressed that laws or systems, in and of themselves, can really guarantee nothing of value at all. Good laws alone can never create the quality of life on which human dignity relies for democracy is more than a collection of formal rules. A system formed with truth rather than lies as its point of departure, according to Havel, cannot be mandated from on high. ⁵⁸ With these long-held beliefs surely shaping Havel's initial approach to politics in practice, the old dissident strategy of demanding that the laws be upheld, "an act of living within the truth that threatens the whole mendacious structure at its point of maximum mendacity," carried the day. ⁵⁹

Civic Forum's insistence that the transfer of power be consistent with the letter of existing law had strategic benefits. Since the old constitution gave the president extraordinary powers, as Havel himself has put it, Czech and Slovak democrats were able to use against them "what they had invented against us;" abiding by the letter of the law granted democratizers unusual potential power to implement reforms their opponents would never have sanctioned. ⁶⁰ Taken as a whole, however, Havel's political thought and strategy may also be seen as a reflection of the damage done to the very spirit of constitutionalism by the communist manipulation of language and legality to legitimate totalitarian power.

III. The Czech-Slovak Conflict And Constitutional Revolution

Three parliaments (the Federal Assembly and the Czech and Slovak National Assemblies, respectively) were elected in the first free elections on 8-9 June 1990. Each body was elected for two years, half the normal term, with a mandate to adopt a new constitution. ⁶¹ Instead of taking decisive and immediate action to institutionalize the revolution in the form of a new federal constitution, the newly elected Federal Assembly wound up continuing to accept the legitimacy of the communist constitution as an interim document, one that would be amended to be suitable until a replacement could be negotiated.

While the Czecho-Slovak Federal Assembly was successful in passing a series of amendments to the federal constitution in 1990-91, its efforts to draft a new constitution, ironically, were undermined by voting rules that had been originally devised to generate the appearance of democratic procedure in the one party state. The 1968 Law on the Federation, an amendment to the 1960 constitution that transformed Czechoslovakia from a unitary state to a federal one, provided for a Federal Assembly with two chambers. Representatives were elected to the upper chamber (the Chamber of the People) by the entire population on a proportional basis. In contrast, the lower chamber (the Chamber of the Nations) was comprised of 75 representatives elected in the Czech Lands and 75 representatives elected in Slovakia. In voting on any bill, both houses were governed by the anti-majority principle (zákaz majorizace ), which translates literally as the prohibition of majoritarian rule. ⁶² Ostensibly designed to protect the rights of the Slovak minority, it stipulated that the ratification of any extraordinary legislation -- constitutional amendments, declarations of war, and the election of the president -- required a 3/5 majority (super majority) of both Czechs and Slovaks in the lower chamber. ⁶³ What this meant, in practice, was that a mere 31 Slovak deputies in the Chamber of Nations could block any proposed constitutional amendment, even if the bill had the unanimous support of all the other deputies in both chambers. ⁶⁴ There was, in 1990-92, no democratic government anywhere else in the world "in which comparable minorities of legislative bodies [had] as much blocking power." ⁶⁵

To complicate matters still further, Czechoslovakia's communist constitution was a curiosity even among other federal systems of the Soviet variety. It proclaimed a federal state that presupposed the existence of republic level constitutions, yet the charade had stopped short of actually promulgating these documents for the constituent states. Thus, Czechoslovakia's democratic forces inherited republican parliaments -- the Czech and Slovak National Councils -- whose precise mandate had never been formally codified. Upholding the communist constitution, consequently, required the immediate drafting of republican constitutions, yet this aim had to be pursued at the same time that the Federal Assembly was laboring to retire the old constitution. Put another way, demanding that the laws be upheld meant in practice that no less than three new constitutions had to be worked on simultaneously.

Who was to tackle the task of refounding the federation initially seemed relatively straightforward. The Federal Assembly would work on drafting a new Federal constitution, yet it was to coordinate its endeavors closely with the efforts of deputies in the Czech and Slovak National Councils, who were charged with the simultaneous creation of the Czech and Slovak Republics' first constitutions. ⁶⁶ That the Slovaks immediately after the revolution began work on their own constitution, having a first draft ready in April 1990, could be read as evidence of a budding Slovak quest for independence, but it might also be seen as their effort to uphold the basic law of the land. ⁶⁷ National governments were also quite understandably "more afraid of preserving unsuitable structures" than the Government of National Understanding, since they were more intimately acquainted with the dysfunctionality of existing federal arrangements. ⁶⁸

The notion that the federation derived its legitimacy from the republics was already technically enshrined in law, as Article 1 of the 1968 law on the federation explicitly stated such. ⁶⁹ That premise was further institutionalized, however, in a power-sharing agreement between federal and republican institutions, which after lengthy negotiations was passed in the form of a constitutional amendment by the Federal Assembly in December 1990. The power-sharing agreement devolved most economic powers to the republics, with the federation retaining control of foreign policy and financial strategy. It also tacitly implied that the ratification of a new federal constitution for Czechoslovakia would of necessity require the approval of both the Czech and Slovak National Councils.

Despite his initial disinterest in immediately replacing the communist constitution, with the June 1990 elections behind him, president Havel placed the adoption of a new federal constitution at the top of his list of priorities. For the majority of Slovak politicians in early 1991, however, this now amounted to putting the cart before the horse. If the Czech-Slovak relationship was to be placed on a new footing, and the common goal was to build a federation "from the bottom up," as Czech and Slovak leaders had agreed in 1990, then a state treaty between the two republics, consistent with international law, must first be forged. Only after this treaty had been established and Czech-Slovak equality was therefore officially inscribed in law could the task of adopting a new federal constitution be tackled. ⁷⁰

While Czechs expressed exasperation at the Slovak notion that citizens of the same country could forge something akin to an international agreement, at another level, Slovak demands followed logically from the spirit of the earlier power-sharing constitutional amendment. That agreement stipulated that while the republics had the right to delegate authority to the federal government, the federation could not devolve powers to the republics without their consent. Whenever Slovak nationalist politicians felt that this basic principle had been compromised, they threatened to declare the supremacy of Slovak laws over federal ones, a move that their Czech counterparts almost uniformly interpreted as tantamount to treason. Discussions of constitutional matters, therefore, foundered on the question of the desired state treaty's meaning and significance, increasingly taking the form of a dialogue of the deaf. For most Czech politicians, in 1991, the locus of refounding was a new federal constitution, for Slovaks, it was a state treaty. The federation's president was forced to assume the role of mediator between two ethnically defined factions. ⁷¹

With the prospects for attaining a new constitution before the June 1992 parliamentary election all but nil, president Havel attempted to break the constitutional deadlock in early 1992 by proposing several constitutional amendments for reform of both the anti-majority principle and the Federal Assembly structure. ⁷² All of them were blocked by the Slovak nationalist opposition. Though a good portion of these Slovak deputies seemed to vote against the proposals simply because they were president Havel's, their voting behavior can also be explained by simple self-interest: Why should a minority with extraordinary power voluntarily vote it away, particularly when that power might be used as a bargaining chip in unrelated negotiations? ⁷³ This dynamic reached its logical point of culmination in June 1992, when the Slovak nationalist minority blocked the reelection of Havel as president, symbolizing the insurmountable impasse that had been reached. In a very real sense, then, the prospects for Czecho-Slovak democracy were undermined by the initial adoption of legal procedures that were never designed to govern a liberal democracy.

After the June 1992 elections, which brought to power in the Czech Republic and Slovakia two political parties -- the Civic Democratic Party (ODS) and the Movement for a Democratic Slovakia (HZDS) -- that shared very little common ground, the task of federal constitution-drafting was formally abandoned, and efforts to recast the political order were reconcentrated at the republic level. ⁷⁴ Czech and Slovak premiers Václav Klaus and Vladimír Meãiar were successful in forming a caretaker federal government that would eventually supervise its own retirement. The decision to create two independent states on January 1, 1993 was taken at the sixth meeting between HZDS and ODS on August 26, 1992. ⁷⁵ Less than a week later, on September 1, the Slovak National Council made the split official when it approved Slovakia's first democratic constitution, to go into effect October 1. That document was written in such a way that it could theoretically function as both a charter for an entity that was part of a larger federal structure or as the basic law for a sovereign state, but its opening lines "We, the Slovak nation" and its definition of a citizen as a citizen of Slovakia signaled the official end of the Czechoslovak era. ⁷⁶ The document was to be presented to the Slovak people for ratification in the form of a referendum, though this never took place. ⁷⁷

With the formal date for the division of the country set, and the Slovak constitution already drafted and ratified, the Czech National Council faced an urgent task. It needed to draft and ratify a new constitution by the end of the year to avoid becoming the world's first democratic state without a body of basic laws to underpin its political order. With respect to constitutional concerns, the Czechs were far less prepared for independence than were the Slovaks. The constitution drafting process was driven by political parties, who developed competing notions of what best served the republic's interest. ⁷⁸ On the actual day the constitution was ratified, December 16, 1992, no fewer than 90 amendments to the evolving text were proposed, with twelve changes actually accepted. ⁷⁹ Nevertheless, the Czech constitution was ultimately ratified by an overwhelming majority (172 out of 200 deputies). Interestingly, the entire divorce process took place in ostensibly legal fashion, with the Federal Assembly narrowly passing a constitutional amendment in late November 1992 abolishing the Federal Republic as of January 1, 1993. ⁸⁰

The method of radical continuity, therefore, had the largest unintended consequences in the former Czechoslovakia. Abiding by the communist legal rules of the game, even against the backdrop of an ongoing series of significant amendments to the old constitution, underscored what divided rather than united citizens of the common state. Attempting to draft and agree on ratification procedures for the basic charter for three new political orders -- Czech, Slovak, and Czechoslovak -- with the zákaz majorizace  in full force was an invitation to constitutional deadlock even had all three legislative bodies been comprised of angels. The case of the former Czechoslovakia, however, when viewed in comparative perspective, provides a curious example of ethnic differences promoting the resuscitation of constitutionalism. Constitutional deadlock at the federal level served as a catalyst for constitutional revolution at the republic level. In this sense, both Czechs and Slovaks were granted a chance to learn from their past mistakes, an option which was unavailable to their Polish and Hungarian counterparts.

IV. Conclusion

Bruce Ackerman has argued that the immediate aftermath of revolution provides liberal democrats with a unique opportunity, what he calls "the constitutional moment," where circumstances are optimal for laying the legal foundations for a democratic order and mobilizing the requisite broad popular support for the constitutional initiative. Timing in tackling major constitutional controversies is critical, for the opposition to authoritarian rule will only remain united for a finite amount of time after it has become clear that a new order is in the making. If the constitutional moment passes in vain, therefore, it is very difficult to recreate it. ⁸¹

The cases considered in this paper support Ackerman's theoretical claim. In Poland, Hungary, and the former Czechoslovakia, the decision to follow the letter of communist constitutions never designed to function in conditions of genuine liberty facilitated the bracketing of the more difficult constitutional questions for resolution at a later date. While postponing these hard tasks allowed democratizing elites to focus on other pressing problems, it also meant that fundamental constitutional questions would have to be confronted after the salient cleavages dividing post-communist societies had fully crystallized into rival political groupings. As a result, Hungary has yet to move into the realm of ordinary politics, where the constitution successfully provides the framework for political action, rather than being a tool in the hands of competing political parties. Poland has successfully made this transition, but the politicized drafting and ratification process produced by the prolonged interim period has stripped Poland's new constitution of the authority it might otherwise have had. Czechoslovakia's dissolution was in part a consequence of accepting an irrational legal apparatus that enshrined communist tactics of divide and rule, yet which the leaders of the Velvet Revolution volunteered to inherit. Ironically, the experience of interwar democracy notwithstanding, thanks in large part to communism's legal legacy, Czechoslovakia in reality had less of a usable past, constitutionally speaking, than did its Polish and Hungarian neighbors. ⁸²

Yet an examination of constitutional politics eight years out, however, also suggests that a refinement of Ackerman's framework is in order. While the constitutional moment for a nation may pass in vain, the constitutional window of opportunity, so to speak, can be reopened. The trouble here is that those likely to be doing the reopening need not necessarily be the forces that catalyzed democratization in the first place. Mass cynicism about the law and its architects is a characteristic feature of authoritarian regimes, but it is an unhealthy development for countries that seek to build the rule of law. Some of this cynicism was inevitably generated by nearly 50 years of communist abuse of the legal system, but it is also a consequence of a constitution drafting process that has collapsed into ordinary politics. Put another way, building on Ackerman's concept, a missed constitutional moment need not put a new constitution beyond reach, but it will result in constitutional deliberations driven by political parties, rather than by the opponents of authoritarianism. While this leaves political actors with "no choice but to accept the drawbacks of a highly politicized, and that means parliamentarized, process," where "everyday politics is part of an ongoing constitutional crisis," this reality also results in a host of unintended consequences, many of them at odds with the establishment of the rule of law. ⁸³

Viewed in this light, Czechoslovakia's successor states were quite fortunate; Ackerman's constitutional moment may have passed for Czechoslovakia, but this had the effect of recreating opportunities for securing a clean legal break with the past in each of the member republics. In closing the regime question, new constitutions provided a firmer foundation for consolidating democracy; it is more difficult for old elites to retain or regain their positions under the cover of the rule of law when the rules that they created have been pronounced illegitimate. By redefining the state, therefore, constitutional democracy was given a second chance in the Czech and Slovak Republics. ⁸⁴

The initial reluctance of democratizers in post-communist Central Europe to scuttle communism's constitutional framework nicely illustrates the relevance of the burgeoning literature on "new institutionalism." ⁸⁵ While the new institutionalism obviously represents a theoretical rubrique comprised of quite disparate elements, all of these share several central assumptions: (1) that social organizations and institutions arise as much through unintended consequences as through purposive human design; (2) that institutions are self-replicating structures and thereby have independent power to shape political and social consequences, and (3) that institutions tend to resist change. ⁸⁶ One consequence of these characteristics is that institutional development typically progresses in punctuated rather than evolutionary fashion. The story of constitutional engineering in Poland, Hungary, and the former Czechoslovakia is certainly one characterized by a multitude of unintended consequences, not the least of which in the latter instance being the demise of the common state. Further, the method of radical continuity is a strategy that by definition encourages institutional self-replication at the same time that it endeavors to actualize meaningful change. Finally, once the constitutional moment had passed in each of these countries, the existing institutional arrangements proved inordinately difficult to replace.

Since deliberation and bargaining among political elites is a critical factor in the determination of constitutional outcomes, the process of institutional crafting would at first glance seem to be an excellent candidate for rational choice modeling. ⁸⁷ This study, however, highlights a variant of strategic interaction that defies formalization, for the simple reason that the preferences of both government and one-time opposition in all three cases changed over time. The dissident rational actor in the post-communist context viewed the menu of alternatives before him in quite different terms than Western analysts may have initially assumed, and those beliefs were themselves transformed as the previously powerless grew accustomed to exercising real political power. Under these admittedly unusual circumstances, the very definition of what constitutes a rational decision is inevitably rendered a matter for debate rather than a priori  assumption. Put another way, game theoretic analysis can shed light on institutional choice when the preferences of the principal agents are for all practical purposes fixed; when they are remade by the transition process itself, one is forced to seek insight using other methods.

Here I do not mean to suggest that rational choice approaches are unable to tell us something valuable about why particular institutions are selected in the first place, but instead that elucidating fundamental political change demands supplementary "soak and poke" consideration of individual cases. Since preference reformation is a critical variable that formal modeling of necessity abstracts away, this suggests that area-specific knowledge and rational choice paradigms of interest-based strategic interaction are potentially complementary rather than adversarial intellectual endeavors. Fruitful collaboration might begin with the question of whether regime change requires a different set of theoretical tools than explaining political behavior when the basic rules of the game are not under fundamental challenge.

Note 1: The author is grateful for the financial support of the National Council for Soviet and East European Research (contract 810-30), and the International Relations and Exchanges Board (IREX), as well as for thoughtful comments on earlier drafts of this essay from Benjamin Block, Jeffrey Cason, Damjan de Krnjevic-Miskovic, Murray Dry, Michael Kraus, Ronald Liebowitz, and colloquium participants at the Wissenschaftszentrum Berlin, Charles University, Prague, and the Workshop on East European Politics, Harvard University. Back.

Note 2: Samuel Huntington's 1991 book popularized the term "third wave." See Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century  (Norman: University of Oklahoma Press, 1991). Back.

Note 3: Dankwart Rustow was the first to suggest that one might study democratization as a phenomenon distinct from democracy itself; causes of and preconditions for democracy were not necessarily one and the same. See Lisa Anderson's introduction to the special issue of Comparative Politics  on Rustow's legacy, Comparative Politics , vol. 29, no. 3, April 1997. p. 254. Back.

Note 4: Notable examples include Seymour Martin Lipset, "Some Social Requisites of Democracy: Economic Development and Political Legitimacy," American Political Science Review , vol. LIII, No. 1, March 1959, pp. 69-105, and more recently, Alfred Stepan and Cindy Skach, "Constitutional Frameworks and Democratic Consolidation: Parliamentarianism versus Presidentialism," World Politics , vol. 46, October 1993, pp. 1-22. Back.

Note 5: The literature here is voluminous, but the flagship of this approach is the four volume series by Guillermo O'Donnell, Philippe C. Schmitter, and Lawrence Whitehead, eds., Transitions from Authoritarian Rule  (Baltimore: Johns Hopkins University Press, 1986). See, also, Guiseppe Di Palma, To Craft Democracies: An Essay on Democratic Transitions  (Berkeley: University of California, 1990) and Juan Linz and Yossi Shain, eds., Between States: Interim Governments and Democratic Transitions  (New York: Cambridge University Press, 1995). Back.

Note 6: Juan Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe  (Johns Hopkins University Press, 1996), p. 81. Jon Elster has also noted this neglect. See Jon Elster, "Ways of Constitution-Making," in Axel Hadenius, ed., Democracy's Victory and Crisis  (Cambridge: Cambridge University Press, 1997), p. 123. Back.

Note 7: The former phrase is Andrew Arato's, the latter, Stephen Holmes and Cass Sunstein's. See, respectively, Andrew Arato, "Constitution and Continuity in the East European Transitions," Journal of Constitutional Law in Eastern and Central Europe , vol. 1, no. 1, p. 110 (footnote 25), and Stephen Holmes and Cass Sunstein, "The Politics of Constitutional Revision in Eastern Europe," in Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment  (Princeton: Princeton University Press, 1995), p. 286. Back.

Note 8: In the German case, of course, what was first promulgated as an interim constitution to govern only until a divided Germany could be reunited remain in force after reunification. Back.

Note 9: Jon Elster, "Constitution-Making in Eastern Europe: Rebuilding the Boat in an Open Sea," Public Administration , vol. 72, Spring/Summer 1993, p. 190. Back.

Note 10: Jakub Karpinski, "The Constitutional Mosaic," Transitions , vol. 1, no. 14, 11 August 1995, pp. 4-7. Back.

Note 11: On the content of the Little Constitution, see Louisa Vinton, "Poland's 'Little Constitution' Clarifies Walesa's Powers," RFE/RL Research Report , vol. 1, no. 35, pp. 19-26. Back.

Note 12: The representative of the communist regime responsible for suggesting this innovation at the Round Table Talks was Poland's current president, Alexander Kwasniewski. See Wiktor Osiatynski, "The Round Table Negotiations in Poland," in Jon Elster, ed., The Round Table Talks  (Chicago: University of Chicago Press, 1996), pp. 53-54. Back.

Note 13: Andrzey Rapaczinski, "Constitutional Politics in Poland: A Report on the Constitutional Committee of the Polish Parliament," The University of Chicago Law Review , vol. 58, Spring 1991, pp. 598-601; Jon Elster, "Constitution-Making in Eastern Europe: Rebuilding the Boat in an Open Sea," Public Administration , vol. 72, Spring/Summer 1993, pp. 203-204; See, also, Timothy Garton Ash, The Magic Lantern  (New York: Random House, 1990), pp. 25-39. Back.

Note 14: Andrzey Rapaczinski, op. cit., pp. 601-602. Back.

Note 15: Ibid., p. 602. Back.

Note 16: Ibid., pp. 602-603. Back.

Note 17: Ibid., pp. 604-606. Back.

Note 18: A dispute over when to force General Jaruzelski out of office led to Solidarity fielding two candidates for president in 1990. Walesa favored pushing him out immediately, while many of his former associates, including Tadeuz Mazowiecki, thought that Polish interests were best served by temporarily keeping him in power to maintain unity. See Krzysztof Jasiewicz, "'My Name is President': Lech Walesa and the Future of Presidentialism in Poland," paper presented at the 1994 Annual Convention of the American Association for the Advancement of Slavic Studies, Philadelphia, PA, November 17-20, 1994, p. 3. Back.

Note 19: Andrzey Rapaczinski, op. cit., pp. 606-607. Back.

Note 20: "Bronislaw Geremek on Constitution-Making in Poland," East European Constitutional Review , vol. 4, no. 1, Winter 1995, pp. 42-43. Back.

Note 21: For a thorough investigation of the birth of judicial review in Poland, see Mark F. Brzezinski, "The Emergence of Judicial Review in Eastern Europe: The Case of Poland," The American Journal of Comparative Law , vol. 41, no. 2, Spring 1993, pp. 153-200. Back.

Note 22: Karpinski, op. cit., pp. 6-7. Back.

Note 23: On the Polish Constitutional Tribunal, see Mark F. Brzezinski, "Constitutionalism Within Limits, East European Constitutional Review , vol. 2, no. 2, Spring 1993, pp. 38-43. Back.

Note 24: Kwasniewski had campaigned as a member of the post-communist Democratic Left Alliance [SLD], but after winning the election turned in his party card to become "President of All the Poles." Back.

Note 25: "Hurry Up," The Economist , January 18, 1997, p. 52. Back.

Note 26: Text of report by Polish radio, 22nd March, 1997, BBC Summary of World Broadcasts (1997, March 24). Available: NEXIS Library: Europe File: All Europe. Back.

Note 27: The vote was 461 deputies (and senators) in favor of the new draft constitution, 31 against, with 5 abstaining. Ibid. Back.

Note 28: "An AWSome Future?", The Economist , May 31, 1997, pp. 49-50. Back.

Note 29: President interviewed on new constitution, Concordat, vetting law, Polish radio 1, 24 April 1997, BBC Summary of World Broadcasts (1997, April 26). Available: NEXIS Library: Europe File: All Europe. Back.

Note 30: Timothy Garton Ash, op. cit., p. 56. Back.

Note 31: András Sajó, "Round Tables in Hungary," in Jon Elster, The Roundtable Talks and the Breakdown of Communism  (Chicago: University of Chicago, 1996), pp. 76-77. Back.

Note 32: Ibid., pp. 88-89 and footnote 35. Back.

Note 33: Patrick H. O'Neil, "Revolution from Within: Institutional Analysis, Transitions from Authoritarianism, and the Case of Hungary," World Politics , vol. 48, no., July 1996, p. 598. Back.

Note 34: Peter Paczoly, "The New Hungarian Constitutional State: Challenges and Perspectives," in A. E. Dick Howard, ed., Constitution Making in Eastern Europe  (Baltimore: Johns Hopkins University Press, 1993), p. 24. Back.

Note 35: István Kukorelli, "Constitutional Changes in Hungary," Notes et Documents , janvier-aou...t 1992, p. 41. Back.

Note 36: László Bruszt and David Stark, "Remaking the Political Field in Hungary: From the Politics of Confrontation to the Politics of Competition," in Ivo Banac, ed., Eastern Europe in Revolution  (Ithaca: Cornell University Press, 1992), p. 51. Back.

Note 37: The threshold was raised from 4% to 5% in 1993. Andrew Arato, "Elections, Coalitions and Constitutionalism in Hungary," East European Constitutional Review , vol. 3, nos. 3/4, Summer/Fall 1994, p. 27. Back.

Note 38: András Sajó, "The Arrogance of Power," East European Reporter , vol. 5, May/June 1992. Back.

Note 39: Andrew Arato, "Elections, Coalitions and Constitutionalism in Hungary," op. cit., pp. 27-28. Back.

Note 40: Peter Paczoly, op. cit., p. 31. Back.

Note 41: Business Intelligence Report World of Information (on Hungary), Janet Matthews Information Services, Quest Economics Database, (1996, October). Available: Nexis Library: NEWS File: ALLNWS. Back.

Note 42: Andrew Arato, "Elections, Coalitions and Constitutionalism in Hungary," op. cit., p. 28. Back.

Note 43: Andrew Arato, "The Constitution-Making Endgame in Hungary," East European Constitutional Review , vol. 5, no. 4, Fall 1996, pp. 31-32. Back.

Note 44: Ibid., pp. 32-33. Back.

Note 45: For example, see "Interview with László Sólyom," conducted by Andras Mink, East European Constitutional Review , vol. 6, no. 1, Winter 1997, p. 73. Back.

Note 46: Constitution Watch: Hungary, East European Constitutional Review , vol. 6, no. 1, Winter 1997, p. 15. Back.

Note 47: Andrew Arato, "The Constitution-Making Endgame in Hungary," op. cit., p. 36. Back.

Note 48: See "Interview with László Sólyom," conducted by Andras Mink, East European Constitutional Review , vol. 6, no. 1, Winter 1997, p. 73. For up-to-date information on Hungary's constitutional politics, consult the search engine of the OMRI web server. Bulashova, Natasha and Cole, Greg. Friends and Partners: Search RFE/RL Daily Digest. Online. Internet. Friends and Partners, 1996. Available http://www.friends-partners.org/friends/news/rferl/search.htmlopt-tables- mac-english-. Back.

Note 49: Michael Kraus, "Settling Accounts: Post-Communist Czechoslovakia," in Neil J. Kritz, ed., Transitional Justice: How Emerging Democracies Reckon With Former Regimes. Volume 3: Country Studies  (Washington, DC: United States Institute of Peace Press, 1995), pp. 542-544. Back.

Note 50: Milo% âalda, "The Roundtable Talks in Czechoslovakia," in Jon Elster, ed., op. cit., p. 148. Back.

Note 51: Vladimír Hanzel,  Zrychlen[breve] Tep Dûjin  (Prague: OK Centrum 1991), pp. 62ff. This text provides edited transcripts for nine meetings between the government and opposition from 26 November to 9 December 1989. Back.

Note 52: See "Obãanské Forum pfiedkládá ãeskoslovenské vefiejnosti a ústavním orgánÛm republiky první návrh nové ústavy," 5 December 1989. Document in author's possession. Back.

Note 53: Vladimír Hanzel, op. cit., pp. 323-324. Back.

Note 54: "The Position of the Coordinating Center of Civic Forum, 14 December 1989," and "Václav Havel's speech, 16 December 1982", both documents from the Archives of the Center for the Study of Constitutionalism in Eastern Europe, University of Chicago Law School. Back.

Note 55: âalda, op. cit., p. 48. Back.

Note 56: Timothy Garton Ash, op. cit., p. 78. Back.

Note 57: Hanzel, op. cit., pp. 70-72; pp. 158 ff. Back.

Note 58: See, for example, Václav Havel, "The Power of the Powerless" (1978) and "Politics and Conscience" (1984) in Václav Havel, Living in Truth  (London: Faber and Faber, 1989), especially pp. 95-100 and 153-57, respectively. See, also, president Havel's speech to the first freely elected Federal Assembly, 29 June 1990 in Václav Havel, Projevy: leden - ãerven 1990 , op. cit., pp. 151-183. Back.

Note 59: Václav Havel, "The Power of the Powerless," in Václav Havel, Living in Truth  (London: Faber and Faber, 1989), p. 98. Back.

Note 60: See Havel's speech to the first freely elected Federal Assembly, 29 June 1990 in Václav Havel, Projevy: leden - ãerven 1990  (Prague: Vy%ehrad, 1990), p. 179. Back.

Note 61: Katarina Mathernova, "Czecho?Slovakia: Constitutional Disappointments," in A. E. Dick Howard, ed., Constitution Making in Eastern Europe  (Washington: Woodrow Wilson Center Press, 1993), p. 63. Back.

Note 62: See "Ústavní zákon o ãeskoslovenské federaci, z 27. fiíjna 1968, c. 143 Sb.," especially articles 41 and 42. Act published in Jiri Grospic, âeskoslovenská Federace  (Prague: Orbis, 1972), pp. 139-263. Back.

Note 63: Katarina Mathernova, op. cit., pp. 64-65. Back.

Note 64: Vojtûch Cepl, "Constitutional Reform in the Czech Republic," University of San  Francisco Law Review , vol. 28, Fall 1993, p. 30. Back.

Note 65: Lloyd Cutler and Herman Schwartz, "Constitutional Reform in Czechoslovakia: E Duobus Unum?," The University of Chicago Law Review , Vol. 58, Spring 1991, p.549. Back.

Note 66: As envisioned by president Havel's speech to the first freely elected Federal Assembly, 29 June 1990 in Václav Havel, Projevy: leden - ãerven 1990 , op. cit., pp. 155-157. Back.

Note 67: "Návrh Ústavy Slovenskej Republiky (1. pracovná verzia)," Komisia Slovenskej národnej rady pre prípravu Ústavy Slovenskej republiky pod vedením Prof. JUDr. Karola Planka, predsedu Najvy%%ieho súdu Slovenskej republiky, Bratislava, April 1990. Archives of the Center for the Study of Constitutionalism in Eastern Europe. Back.

Note 68: President Havel's speech to the first freely elected Federal Assembly, 29 June 1990 in Václav Havel, Projevy: leden - ãerven 1990  (Prague: Vy%ehrad, 1990), p. 162. Back.

Note 69: "Ústavní zákon o ãeskoslovenské federaci, z 27. fiíjna 1968, ã. 143 Sb.," ãl. 1. Back.

Note 70: David Franklin, Interview with Pavel Rychetsk[breve], May 1991. Rychetsk[breve] provided written answers to questions that Franklin had submitted. Archives of the Center for the Study of Constitutionalism in Eastern Europe. Back.

Note 71: Ibid. See, also, the interview with Václav Havel, October 17, 1991, BBC Summary of World Broadcasts (1991, October 19). Available: NEXIS Library: Europe File: All Europe, and the transcript of the November 1991 negotiations at Havel's summer home, published as a series in Slovenské Listy , 1994, "Poloãas rozpadu: Pfiepis Stenografického záznamu ze setkání nejvy%%ích ústavních ãinitelÛ u prezidenta Václava Havla na Hrádeãku dne 3. listopadu 1991." Back.

Note 72: Cutler and Schwartz, op. cit., pp. 549-551. Back.

Note 73: Katerina Mathernova, op. cit., pp. 73-75 Back.

Note 74: "Constitution Watch: Czechoslovakia," East European Constitutional Review , vol. 1, no. 2, Summer 1992, p. 3. Back.

Note 75: "Chronology of Discussions of Division of Czechoslovakia," CTK National News Wire (1992, November 27). Available: NEXIS Library: Europe File: All Europe. Back.

Note 76: Ústava Slovenskej Republiky  (Bratislava: NVK International, 1992), Preamble and Article 52. Article 156 lists the sections that did not come into force on the day of the Constitution's actual promulgation; the activation of these bracketed passages rendered the document a charter for a sovereign state. Back.

Note 77: "Constitution Watch: Slovakia," East European Constitutional Review , vol. 1, no. 3, Fall 1992, p. 10. Back.

Note 78: See, for example, "Vládní návrh: Ústavy âeské Republiky," 4 November 1992, "Návrh ODA: Ústava âeské Republiky," 1992 (Daniel Kroupa Draft), and "Návrh KDS," 18 August 1992. See also, Václav Havel, "Nûkolik poznámek na téma ãeské ústavy," 7 August 1992. All party drafts and Havel's memorandum from the Archives of the Center for the Study of Constitutionalism in Eastern Europe. Back.

Note 79: "Czech Republic Adopts Constitution," United Press International (1992, December 16), Available: NEXIS Library: Europe File: All Europe. One of the amendments accepted on the floor was no less than the inclusion of a bill of rights. Back.

Note 80: "Constitution Watch: Czech Republic," East European Constitutional Review , vol. 2, no. 1, Winter 1993, pp. 4-5. Back.

Note 81: Bruce Ackerman, The Future of Liberal Revolution  (New Haven: Yale University Press, 1992), especially pp. 46-50. Back.

Note 82: Restoring the interwar constitution of 1920 was never an option that was seriously entertained, perhaps because it was based on the notion of Czechoslovakism (its opening lines, for example, read "We the Czechoslovak people"), which in 1989 was for some Slovaks a euphemism for Czech chauvinism. See "Sbírka zákonÛ a nafiízení státu ãeskoslovenského," 6. bfiezna 1920, Archives of the Center for the Study of Constitutionalism in Eastern Europe. Back.

Note 83: Quoted passages are from Stephen Holmes and Cass Sunstein, "The Politics of Constitutional Revision in Eastern Europe," in Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment  (Princeton: Princeton University Press, 1995), p. 288. Back.

Note 84: That second chance has to date been squandered in Slovakia, due to Prime Minister Vladimír Meãiar's autocratic rule, but there is no reason that the opportunity might not one day be seized and the present situation turned around by Meãiar's opponents. If Romania can do it, why not Slovakia? Back.

Note 85: For a superb analysis of the new institutionalism's multiple faces, and their points of intersection and divergence, see Peter A. Hall and Rosemary C. R. Taylor, "Political Science and the Four New Institutionalisms," paper prepared for presentation to the Annual Meeting of the American Political Science Association, New York, September 1994. Back.

Note 86: Patrick H. O'Neil, op. cit., pp. 580-582. Back.

Note 87: A lucid treatment of rational choice approaches to the problem of explaining institutional change can be found in Kenneth Shepsle, "Studying Institutions: Some Lessons from the Rational Choice Approach," Journal of Theoretical Politics , vol. 1, no. 2 (1989), especially pp. 137-141. Back.