In many constitutional systems around the world, the powers of the executive branch are vast, ever-expanding, and elusive. This chapter draws on a number of examples, from “established” and “fragile” democratic contexts to develop a typology of the different functions that courts can play in checking executive power. It concludes that courts can be surprisingly successful in limiting the growth of even powerful executives. It finds that, as a strategy, courts are more likely to be successful when they focus on empowering other institutions that can serve as a counterweight to powerful presidents, rather than seeking to shoulder the entire burden of limiting executive power themselves. Through case studies the chapter explores the circumstances under which courts have sought to make the constitution matter by placing limits on executive power.
In Chapter 10 (‘The illusion of a constitution in Europe: the Hungarian Constitutional Court after the Fifth Amendment of the Fundamental Law’), Uitz offers a critical account of the position of the Hungarian Constitutional Court as an instantiation of the perspective of a post-communist Central Eastern European jurisdiction. Whilst the Hungarian Constitutional Court used to be ‘among the most internationally respected courts for the quality of its jurisprudence [especially concerning fundamental rights] and for its contribution to transition to democracy’ and entrusted with a ‘formidable constitutional review forum’, the court is currently ‘best known as the victim of perpetual constitutional amendments’. The author’s argument revolves around the crucial issue of the vulnerability of the Constitutional Court which, due to jurisprudential and political factors, has been entangled in an increasingly uncomfortable position, stuck between a not-so-prone-to-constitutional-dialogue government and the imperatives stemming from Hungary’s European and international obligations. Uitz discusses to what extent dialogue among constitutional actors has become increasingly difficult as attested by the numerous constitutional amendments which have overruled the court in order to prevent its interference in matters of political significance for the government.