Part I: The Interwar Period (1919-1939): The Crisis of Liberal Constitutionalism
1.1 Introduction: A New Constitutional Order and Its Immediate Discontents
The conclusion of the First World War was hailed as a monumental triumph for liberal democracy. The victorious powers—Britain, France, and the United States—embodied a new global order, their success seemingly vindicating the principles of self-determination and popular governance.1 This optimism fueled a wave of constitution-making, as new republics emerged from the ashes of old monarchies across Europe. Newly formed states such as Germany, Poland, Finland, Estonia, and Czechoslovakia adopted modern, democratic constitutions, often incorporating progressive elements like universal suffrage and extensive bills of rights.1 The Weimar Constitution of 1919, for instance, was a remarkably forward-thinking document, establishing a federal, semi-presidential republic with a strong bill of rights and direct elections for the president.4
This initial period of constitutional exuberance was, however, tragically short-lived. The post-war era was defined by profound economic and social upheaval that quickly dissipated the initial optimism.6 The Great Depression, in particular, created widespread public disillusionment and fundamentally challenged the belief that capitalist democracy could provide for the well-being of its citizens.7 A sense of vulnerability spread across the political landscape, as the liberal and social democratic parties that had defended the new parliamentary order found themselves struggling for legitimacy.6 A widespread conviction developed that European parliamentary liberalism belonged to the pre-1914 past, and its intellectual defenders were accused of supporting an outdated model.6 This ideological vacuum was quickly filled by radical alternatives from both the revolutionary left and the radical right, which promised security and stability in place of the perceived chaos of parliamentary democracy. These included Italian fascism, which was the first to demonstrate a willingness to use revolutionary means to establish an authoritarian state.6 The crisis was thus not merely one of constitutional design, but of the political and social context in which these documents were meant to function. The sudden imposition of a new political model without addressing the deep economic distress and societal fractures exacerbated by the war and the subsequent Great Depression proved to be a critical flaw.
1.2 The Weimar Republic: Emergency Powers as a Fatal Flaw
The Weimar Constitution of 1919 was, in many respects, a progressive document that established a federal republic with a parliament elected by universal suffrage and a strong bill of rights that guaranteed fundamental freedoms, including freedom of speech and habeas corpus.4 However, a key element intended to address the political instability of the era became its most significant weakness: Article 48.8 This article allowed the President to declare a state of emergency and take measures to restore public security and order, even suspending fundamental civil liberties.8 The framers’ intent was to provide a mechanism for swift executive action in times of crisis, bypassing what could be a slow legislative process.
The political and legal abuse of this power ultimately paved the way for the Republic’s collapse. President Friedrich Ebert used Article 48 dozens of times in the early 1920s to deal with economic dangers and political unrest, but he would typically relinquish his emergency powers once the immediate crisis had passed.8 The systematic erosion of the constitution began under his successor, President Paul von Hindenburg, a conservative who distrusted democracy and frequently used Article 48 to rule by presidential decree, sidestepping the Reichstag entirely.8 This habit of ruling without the legislature’s consent severely weakened the democratic system and fostered a loss of public confidence in the parliamentary process.9
This normalization of executive decree-making created a perilous precedent that Adolf Hitler expertly exploited. The final, fatal moment came after the Reichstag Fire of 1933, when Hitler, newly appointed as Chancellor by Hindenburg, leveraged the public’s and the political class’s acceptance of rule by decree. He induced Hindenburg to sign the Reichstag Fire Decree, a direct use of Article 48 that suspended fundamental civil liberties, a power explicitly permitted by the article itself.8 This was swiftly followed by the Enabling Act, which effectively eliminated the Reichstag’s legislative function and granted Hitler unlimited dictatorial powers, dismantling the constitutional order from within.8 The tragic downfall of the Weimar Republic illustrates how a constitutional provision, initially designed with a seemingly legitimate purpose for crisis management, can be incrementally co-opted and subverted to dismantle the very system it was meant to protect. The repeated and increasingly political use of Article 48 by non-Nazi leaders normalized rule by decree, paving a legal and psychological path for Hitler’s total usurpation of power.
1.3 Common Law Jurisdictions: Adaptation and Resistance
While the Weimar Republic’s constitutional crisis resulted in a catastrophic breakdown, common law jurisdictions like the United States, the United Kingdom, and Canada faced similar pressures but responded in fundamentally different ways, demonstrating the varying resilience of their constitutional frameworks.
The American “Constitutional Revolution” of the New Deal
The Great Depression placed immense pressure on American constitutional law, inspiring a period of “extraordinary legislative ferment” as the federal government sought to provide relief and economic security for its citizens.10 This expansion of federal power challenged the established jurisprudence of the U.S. Supreme Court, which had a history of aggressively exercising judicial review to limit both Congress and the states.11 The New Deal era is thus a story of a jurisprudential revolution rather than a constitutional collapse. The crisis was a dynamic tension between a conservative judiciary and a politically ascendant, reform-minded executive and legislature.
The Supreme Court initially resisted the New Deal, striking down key pieces of legislation. In A.L.A. Schechter Poultry Corp. v. United States, the court unanimously held that the National Industrial Recovery Act was an unconstitutional delegation of legislative power to the President, arguing that the Act lacked sufficient guiding standards.12 The court also found that the law’s regulation of intrastate commerce had only an “indirect” effect on interstate commerce, drawing a firm line that limited federal power.12 Similarly, in
United States v. Butler, the court found the Agricultural Adjustment Act unconstitutional, ruling it violated the Tenth Amendment by attempting to regulate agriculture, a local activity reserved to the states.13
This period of judicial resistance culminated in a significant jurisprudential shift. Following President Roosevelt’s public criticism and the threat of his “court-packing” plan, the Court began to uphold New Deal legislation, famously in cases like West Coast Hotel Co. v. Parrish and N.L.R.B. v. Jones & Laughlin Steel Corporation.12 This marked a “sudden and complete” reversal of the court’s stance.11 The judiciary’s new posture was one of deference to the political branches on economic matters. The American experience demonstrates that the effective meaning of a constitution can be profoundly altered by judicial interpretation, particularly when influenced by political and social pressure. The court’s shift from an activist, property-rights-protecting role to a more passive one on economic matters shows how a new constitutional regime can be launched without formal amendment.10
The British Model: Parliamentary Sovereignty and the Emergency Powers Act 1920
The British constitution, being uncodified and founded on the principle of parliamentary sovereignty, responded to the interwar period’s crises in a distinct manner.14 The British system’s flexibility meant that it did not face a direct constitutional confrontation of the kind seen in the U.S. Instead, the response was a series of statutory and social changes, including the widening of the franchise and the expansion of social welfare programs.3
The primary legal challenge to the state’s authority came from labor unrest. In response, Parliament passed the Emergency Powers Act 1920.16 This Act granted the Sovereign the power to declare a state of emergency and issue regulations to secure the “essentials of life to the community”.16 This power, while broad, was constrained by significant parliamentary oversight. A state of emergency was limited to one month, and Parliament had to be recalled within five days to approve the regulations.16 The Act was first used during a coal strike in 1921 and was extensively used during the General Strike of 1926.16 The UK’s response demonstrates the resilience of an uncodified system. The crisis was managed politically through legislation, a temporary delegation of power from the supreme legal authority (Parliament) to the executive. This stands in stark contrast to the Weimar case, where the executive’s power was written into the constitution itself, and the American case, where the courts initially acted as an impediment to legislative solutions.
Canada’s Struggle with Federalism
Canada’s experience offers a third comparative model. Similar to the U.S., Canada faced its own Great Depression-era challenges, leading to a demand for a more activist federal government.18 Prime Minister R.B. Bennett’s government, inspired by Roosevelt’s New Deal, introduced a series of “New Deal” laws in 1935.20 However, these legislative attempts were met with constitutional resistance.
A key piece of legislation, the Natural Products Marketing Act, was challenged by the provinces as an infringement on their powers.20 The Supreme Court of Canada and, on appeal, the Judicial Committee of the Privy Council (Canada’s highest court at the time) found the Act to be
ultra vires, or beyond the power of the federal government.20 This decision, along with the repudiation of several other labor statutes, was a decisive rejection of the Canadian federal government’s attempt to adopt a broad, U.S.-style New Deal.20 The Canadian experience stands in stark contrast to the American one, as the Canadian judiciary, unlike its U.S. counterpart, did not shift its jurisprudence to allow for the federal expansion of power. This reveals the rigidity of a constitution with a more formally-entrenched division of powers, which served as a significant institutional barrier to the federal government’s ability to respond to a national crisis.
Part II: The Post-Communist Period (1989-present): Building and Defending Constitutionalism
2.1 The “Third Wave” of Constitution-Making: Promises and Inherited Challenges
The collapse of the Soviet Union in 1991 marked a “third wave” of constitution-making, as former communist states sought to establish democratic governance.22 New constitutions were adopted, often via referendum, to replace the old communist-era documents that were based on “democratic centralism” rather than the rule of law.2 These new documents were a profound rejection of the past, formally enshrining fundamental liberal principles: the rule of law, separation of powers, and robust bills of rights intended as a “meaningful basis for the whole legal system”.2
The transition, however, was far from a clean slate. The new states inherited the remnants of the Soviet legal system and, more importantly, a legacy of “unwritten” extra-legal practices.23 Under the communist system, the written law, while it existed, was a “superstructure” subordinate to the interests of the party.23 This created a “legal dualism” where the formal legal system could be bent or trumped by political expediency.23 These informal, “neopatrimonial” practices continued to challenge the new constitutional order and the rule of law.22 The transition thus demonstrates that a formal constitutional text is insufficient to establish a constitutional democracy. The real challenge was overcoming the “unwritten constitution” of political justice and informal practices inherited from the communist era.23 This legacy is why the “rule of law” has struggled to take root in many of these states, even with a modern constitution on the books.24 The primary constitutional challenge was therefore not a failure of legal design, as in Weimar, but a struggle to replace an entrenched anti-constitutional political culture with a new one.
2.2 The Rise and Role of Constitutional Courts as Democratic Watchdogs
A defining feature of the post-communist transition was the widespread establishment of constitutional courts with powers of judicial review, a fundamental break from the past where such institutions were either non-existent or politically neutered.2 These courts were intended to be a constituent element of democracy, with broad mandates to limit state authority by reviewing the constitutionality of new legislation.25 The establishment of these courts was a critical and largely unprecedented step, as they were not merely adjudicators but active participants in “forging post-communist constitutionalism”.25
The Czech Constitutional Court provides a powerful example of this new role. In the Walderode restitution case, the court intervened to protect an individual’s right to judicial protection, forcing the reopening of a dispute over properties confiscated after World War II.29 This decision went beyond a specific case; it demonstrated the judiciary’s capacity to address complex historical injustices and reinforce the principle that no one, not even the state, is above the law.29 This foundational, institution-building role is distinct from the American court’s role as an umpire between branches. It demonstrates the judiciary’s capacity to provide “credible forums for constitutional debate” and to strengthen “accountability and the protection of human rights”.31
2.3 Navigating Transitional Justice: The Constitutional Minefield of Lustration Laws
A central issue of transitional justice in Eastern Europe was what to do with former communist officials and secret police collaborators. Lustration laws were adopted to purge former collaborators from the state apparatus and restore public trust.32 These laws were seen as a necessary part of “decommunization,” intended to prevent the “return of communist rule”.33
These laws, however, ran headfirst into fundamental constitutional principles. Critics argued that they violated due process, the presumption of innocence, and the principle of non-retroactivity, as they often penalized individuals for actions that were not criminal at the time they were committed.32 The Polish Constitutional Tribunal demonstrated its independence by declaring the first lustration bill of 1992 unconstitutional.32 This decision exposed a profound tension inherent in transitional justice: the clash between a collective, political goal (purging the state of former collaborators) and core liberal constitutional principles (due process and non-retroactivity).32 The Polish Constitutional Tribunal’s decision is a powerful example of a new constitutional court fulfilling its purpose as a check on a majoritarian impulse, even when that impulse is politically popular. By striking down the law, the court reinforced the idea that the new state would be bound by the rule of law, even when doing so was difficult or politically inconvenient.
2.4 Modern Challenges: The Threat of Constitutional Backsliding and Judicial Capture
After a period of consolidation, constitutional democracy in some post-communist states now faces a new, internal threat: “constitutional backsliding”.34 Unlike the interwar crisis, which was a “failure of constituent power” in the face of external ideological assault, this new crisis is a deliberate and calculated internal erosion of constitutional checks and balances by elected governments.34
The Polish Constitutional Tribunal, once a beacon of independence, has been compromised since 2015 through politically motivated judicial appointments.35 The government passed “remedial bills” to force its nominees onto the court, effectively turning it into a “puppet court”.35 This co-opted judiciary has since issued controversial rulings, such as the 2020 decision that restricted abortion and the 2021 ruling asserting the primacy of Polish law over EU law, fundamentally challenging the state’s relationship with the European legal order.35
Hungary’s constitutional crisis has been a model of “authoritarian liberalism” achieved through a supermajority in parliament.36 The government has used its two-thirds majority to amend the constitution multiple times.27 A key amendment, the “Fourth Amendment,” nullified two decades of rights-protecting case law from the Hungarian Constitutional Court and removed its power to evaluate future constitutional amendments.27 This represents a direct legislative assault on the independence of the judiciary and the principle of judicial review.
The constitutional crises in Poland and Hungary represent a modern and perhaps more insidious threat than the interwar period’s. The interwar crisis was a dramatic breakdown often exacerbated by violence and external pressures. The current crises are a deliberate and calculated internal erosion of constitutional checks and balances, achieved through legal manipulation and the co-optation of democratic institutions themselves.27 This highlights the fact that a constitution is only as strong as the political will to uphold it, and that a formal document is no guarantee against authoritarian creep if its foundational principles are not respected.
Part III: Conclusion and Comparative Insights
The constitutional challenges of the interwar and post-communist periods, while separated by more than half a century, reveal enduring lessons about the fragility of constitutional democracy. The interwar crisis was an external assault on new, fragile constitutional designs. In the U.S. and UK, existing systems adapted through either jurisprudential shifts or parliamentary delegation, whereas in Germany and Canada, the new or rigid constitutional structures failed to provide a viable path forward. The Weimar case demonstrates how a structural flaw can be leveraged to dismantle a democracy, while the Canadian experience shows how a rigid constitutional framework can impede a government’s ability to respond to a national crisis.
The post-communist crisis, by contrast, is a struggle to protect newly established constitutional orders from internal erosion. The legal systems have largely been formalized, but the “unwritten constitution” of informal practices and a lack of institutional loyalty continue to pose a threat. The successes, like the Czech Republic’s court, highlight the importance of an independent judiciary, while the backsliding in Poland and Hungary demonstrates how a democratically elected government can dismantle a constitution from within by manipulating its institutions.
The threat to constitutionalism has evolved from an external, ideological assault that leveraged structural weaknesses to an internal, calculated erosion of institutional checks and balances. The interwar crises were about the failure of a new constitutional structure to withstand shock. The post-communist crises are about the failure of a new constitutional culture to take root and resist manipulation. The modern crises, while different in nature, reinforce the core lesson of the interwar period: a constitution is not just a document. Its survival depends on the political will of a nation’s leaders and the vigilance of its institutions. The enduring lesson is that constitutional fragility is a constant state, not a temporary condition. The crises of both periods underscore the vital role of independent judicial institutions as a bulwark against both ideological and political overreach. Ultimately, the story of both eras is a testament to the fact that while a constitution can be a blueprint for a liberal democracy, it requires ongoing defense against a variety of threats, both internal and external, that can render its promises hollow.
