Introduction: the interpretive challenge to total constitutionalism
The European Union (EU) is confronting a set of developments that challenge the cohesion of its constitutional order, as its underlying culture is increasingly perceived as divisive and partisan. The erosion of the rule of law,Footnote 1 the spread of euroscepticism,Footnote 2 and changing geopolitical dynamicsFootnote 3 pose challenges to the success of the integration project.
Constitutional scholarship has extensively explored these challenges, frequently connecting them with the intrinsic limits of European constitutionalism, whether stemming from differences in legal cultures or from contingent political considerations. The legal culture underpinning integration is frequently cited as an explanation for both the successes and crises of the European project.Footnote 4 Yet, this culture has never developed uniformly across Europe, and its uneven reception has, in turn, continuously shaped the trajectories of integration.
Against this background, European integration has been sustained by a legal culture grounded in the idea of the existence of a supranational framework of principles that transcends national boundaries and is enforced through judicial mechanisms. Such an approach did not materialise in isolation from wider cultural trends and transformations. On the contrary, it was shaped by a progressive interpretive ethos that echoed the teleological turn characteristic of post-World War II international organisations, that is, a tendency in judicial reasoning to assign significant weight to the purposes and objectives of such institutions.Footnote 5
As Mauro Cappelletti stated, this logic consists of a ‘repudiation of Montesquieu’:Footnote 6 an understanding of the entire legal edifice of national and supranational institutions in Europe that would reinterpret, in modern terms, the category of ‘natural law’, rather than adhering to a positivistic legal culture, which would have prioritised the identification of a formalised hierarchy of legal sources. This perspective allows for an evolutionary understanding of law that treats it not as an isolated system of norms but as a dynamic process intertwined with political morality.Footnote 7 Cosmopolitan theories have also significantly contributed to such a culture. On the one hand, such theories have provided justification for the existence of universal moral values, which should be incorporated into legal reasoning to produce a legal order sustained by rules and principles.Footnote 8 On the other hand, they have defended a dialogical framework in which supranational and national institutions principally communicate through the judiciary.Footnote 9 In this framework, a forward-looking legal culture sits atop an infrastructure that blends national and supranational institutions and empowers the judiciary to secure and strengthen the connections between such institutions and legal orders.Footnote 10
Against this backdrop, the need for the constitutional legitimation of a legal system quickly persuaded EU judges to adopt a constitutional language and discourse that, especially in recent years, relied more or less explicitly on a total constitutionalism frame.Footnote 11 In particular, broad interpretation of rights, impositions of affirmative duties on the governments and the creation of horizontal effects became hallmarks of a constitutional discourse within the EU.
This article takes issue with such developments by exploring the role of constitutional interpretation in shaping and challenging an ideal of European total constitutionalism. It argues that the EU, through its integration logic, doctrinal evolution, and especially its jurisprudence, exhibits some of the features associated with total constitutionalism, understood as a normative and institutional framework in which constitutional norms penetrate and organise the entire legal and political order. In particular, the Dworkinian orientation of the Court of Justice of the European Union (hereinafter: the Court of Justice) and many national constitutional courts – favouring principle-based reasoning and moral coherence – has been central in building a supranational legal order grounded in constitutional supremacy.
However, this integrative logic has not gone unchallenged. Resistance has manifested in different forms over the past years. In May 2025, on the initiative of Denmark and Italy, nine EU Member states issued an open letter expressing concerns about the way the European Court of Human Rights interprets the European Convention on Human Rights, in particular arguing that the Court has extended the ‘scope of the Convention too far as compared with the original intentions behind the Convention, thus shifting the balance between the interests which should be protected’.Footnote 12 The letter refers, inter alia, to Court’s case law on migrants’ rights, presented as an example of judicial decisions that constrain the margin for political action and affect the capacity of political leaders to protect democracies ‘against the challenges facing us in the world today’.Footnote 13 The open letter concludes by stating that the leaders of the nine member states wish to use their mandate to initiate a conversation on the interpretation of the European Convention on Human Rights. Few months later, in December 2025, similar concerns were echoed more broadly, with 27 states reiterating the need for the interpretation of the Convention to remain attentive to national political contingencies.Footnote 14
This intervention contributes to the politicisation of legal interpretation by drawing a direct connection between interpretative approaches and the capacity of political leaders to take decisions deemed essential for the stability and integrity of democratic life.Footnote 15 This political move is then an attempt to reframe questions of judicial (and constitutional) interpretation as questions about self-government and executive responsibility. A more radical and problematic articulation of this logic is visible in Hungary and Poland, where textualism and legal formalism have been increasingly weaponised by constitutional courts against the European integration project. While these interpretative methodologies have a long-standing history in both countries, their contemporary invocation is often strategically linked to broader themes of judicial moderation and democratic accountability. In that sense, these interpretive approaches are neither merely doctrinal nor simply part of a deeply rooted constitutional culture; they are profoundly political, drawing explicitly or implicitly on debates surrounding judicial restraint, defence of state sovereignty, and even originalism. In this scenario, constitutional interpretation becomes a tool for reasserting national sovereignty, often under the guise of defending the constitution against ‘foreign’ judicial or supranational influence.
In these reactive narratives, the constitution is supreme because it protects the autonomy and primacy of the (nation) state, not because it expresses a set of higher-order principles that constrain power and support a shared European legal order, thereby reinforcing the authority of constitutional adjudication across legal systems.
This article questions whether total constitutionalism, as it has developed in the EU, can adequately respond to the interpretive backlash currently taking shape in several member states. In Hungary and Poland, courts have increasingly relied on textualism and formalism to contest the authority of supranational law, reassert national sovereignty, and resist integration, often invoking the very language of constitutional supremacy. These developments suggest that the integrative logic of total constitutionalism is not immune to reappropriation by illiberal regimes. This conclusion does not seek to attribute responsibility for such interpretative backlashes to total constitutionalism itself. Rather, it underscores the importance of developing, across Europe, a constitutional discourse that does not easily lend itself to reappropriation by political actors working to expand their room for manoeuvring in response to contingent circumstances at the expense of constitutional principles.
Rather than offering a wholesale critique of total constitutional constitutionalism, the article takes a more modest approach. It aims to highlight the interpretive vulnerabilities of total constitutionalism when confronted with political actors who reject the normative assumptions underpinning European integration. In doing so, it calls for a recalibration of constitutional discourse, one that focuses on clarifying the contours of constitutional supremacy as a means to reaffirm the political and societal foundations of constitutional orders.
Before developing the argument, an important clarification is in order. This article does not claim that textualism and legalistic approaches have re-emerged in the jurisprudence of European constitutional courts after having disappeared at some point in time. Courts employ a variety of interpretative methodologies, and it is often hard to identify either consistent patterns in their use or abrupt changes.Footnote 16 Textualism itself is an ambiguous concept, open to different understanding and modes of operation, so that any claim that a court is consistently textualist would be very difficult to sustain. Rather, the article engages with European constitutional discourse to examine how interpretative techniques are mobilised as argumentative tools to advance claims of judicial moderation and to express democratic preoccupations about the role of courts in contemporary polities.
In this sense, this article contributes to two strands of scholarship. The first concerns constitutional argumentation, and particularly the development of a distinct constitutional language within the EU.Footnote 17 The second relates to the patterns and dynamics of constitutional backsliding across Europe. Underlying both strands is the broader question of the relationship between law and politics – a question that lies partly beyond the scope of this article, but which will be briefly addressed in the conclusion.
This article proceeds in four parts. The first section traces the normative and institutional logic of total constitutionalism as it has been articulated within the EU legal order, with a focus on its interpretive foundations in post-war constitutional theory and Dworkinian legal philosophy. The second section examines the recent textualist and formalist backlash in Central and Eastern Europe, situating these developments within broader political and intellectual trends. The third section considers the implications of this backlash for our understanding of constitutional supremacy, arguing that total constitutionalism remains vulnerable to appropriation by illiberal regimes. The fourth section reflects on the conceptual and normative adjustments required to disentangle constitutional supremacy from its identification with state sovereignty. Finally, the article ends with some concluding reflections.
Total constitutionalism and the process of European integration: a normative alignment?
This section explores how post-WWII European constitutional culture, shaped by a total constitutionalism framework centered on fundamental rights, especially human dignity, enabled the EU’s legal system to evolve into a constitutional structure driven by evolving judicial interpretation.
Following Mathias Kumm’s influential account, a total constitution is a constitutional order in which constitutional law, and particularly constitutional rights, penetrates and governs all areas of law and politics, including private law.Footnote 18 This model can be understood as consisting of five elements: (1) every political and legal conflict is potentially a constitutional issue, guided and constrained by constitutional rights; (2) all branches of government, legislature, executive, and judiciary, are charged with implementing the constitution, with their actions subject to constitutional review; (3) the Constitutional Court acts as a guardian of constitutional justice, overseeing that all acts (whether public or private) conform to constitutional principles; (4) Private law is constitutionalised through mechanisms like ‘indirect horizontal effect’ (mittelbare Drittwirkung), i.e. constitutional rights shape how private parties relate to one another; (5) the constitution subordinates politics to law.Footnote 19
Arguably, this model does not map directly onto the EU for two main reasons. First, the ‘constitution’ presupposed by this model – a coherent set of rules embodying a unified system of values – does not strictly exist in the EU context. Second, EU constitutional instruments, namely the Treaties and the Charter of Fundamental Rights,Footnote 20 operate within the boundaries of the principle of conferral. While it is true that the direct effect of an EU Treaty provision is determined by the spirit, general scheme, and wording of the Treaties themselves, as interpreted by the Court of Justice,Footnote 21 and not by domestic constitutions, the application of such provisions is still contingent upon the existence of a conferred EU competence. By contrast, national constitutions typically apply to the entire legal system without such constraints or conditions.
Nevertheless, this structural feature of EU law has not historically prevented it from exerting pervasive influence at the level of Member States, shaping the interpretation and application of a broad range of national legal norms. This phenomenon extends even to private law, which has been substantially reshaped by EU norms. As Hans Micklitz has observed, ‘to slightly twist the language of Mattias Kumm, “total constitutionalism” in the EU is already in action, at least in form of the claim of “intellectual hegemony” of constitutional law over private law.’Footnote 22
The building blocks of the European legal order – the supremacy of EU law, the autonomy of the EU legal system and the protection of fundamental rights – have progressively contributed to constructing a European ‘constitutional space’ whose logic transcends that of an international agreement confined by strictly enumerated, functional competences.Footnote 23 As Dieter Grimm has argued, elevating the EU Treaties to the status of constitutional norms has significantly constrained the space for democratic decision-making by transforming politically contestable choices into constitutionally binding commitments where compromise and political accommodation could otherwise have been possible.Footnote 24 In this sense, while the EU lacks a unified constitution in the classical sense, its legal evolution has produced a functionally constitutional order that reflects some core features of Kumm’s total constitutionalism. In particular, it reflects two core elements: first, that every legal issue is potentially of constitutional relevance; and second, that the highest court in the legal system is entrusted with safeguarding constitutional compliance.
Against this backdrop, this section explores how European constitutional culture has increasingly relied on a total constitutionalism framework to support this type of integration project.
The post-World War II intellectual renewal of constitutionalism did not reject legal positivism but instead infused it with moral meaning, primarily by elevating human dignity as a foundational value. In other words, this renewal reflected a deepened interest in the moral dimension of law, one that did not abandon the positivist tradition but rather subjected it to a critique rooted in Europe’s historical experience.Footnote 25
To clarify this point it is important to highlight that this renewal: (a) did not occur in a vacuum; and (b) did not affect all European countries in the same way. Rather, it contributed to the creation of a European culture that is neither uniform nor perfectly representative of the entirety of European constitutional cultures.
Undoubtedly, this renewal drew upon pre-existing traditions that were deftly adapted to the new cultural and political climate at the European level. In more detail, the principle of human dignity came to occupy a foundational role akin to Kelsen’s Grundnorm, that is, a meta-juridical basis for both interconnected legal orders and the incremental evolution of legal interpretation.Footnote 26 The existence of such a foundational value justified interpretive approaches aimed at maximising the protection of fundamental rights, based on the assumption that the specific source of their legal foundation – whether in the Treaties, the European Convention on Human Rights, the national constitutions or, later, in the Charter of Fundamental Rights of the EU – was largely irrelevant.Footnote 27 The presumed existence of a Grundnorm centred on human dignity across European domestic systems supported interpretive efforts that treated national constitutions and EU treaties as parts of a comprehensive legal framework directed toward a shared normative goal.
This reinterpretation of the Grundnorm diverges from Kelsen’s original conception, which referred to a presupposed norm without specific content. For Kelsen, the Grundnorm simply conferred lawmaking authority upon a political community and commanded compliance with the legal order,Footnote 28 without itself bearing any moral or substantive content.Footnote 29 The post-war European legal tradition, however, adapted Kelsen’s concept to serve a constitutionalist project grounded in moral and political values, especially the imperative to protect human dignity. While this may not align with Kelsen’s purist theory, it reflects how constitutional interpretation evolved in practice to meet the normative demands of integration.
A different trajectory emerges in Eastern Europe. In this region, cultural transformations unfolded in a different way for reasons closely linked to its constitutional history. Formalistic and positivistic approaches to law characterised Eastern European countries before 1989, as they were embedded in the tradition of socialist rule, where law functioned primarily as an instrument of political control.Footnote 30 After 1989, the process of constitutionalisation of legal orders did not and could not occur overnight. Instead, elements of the socialist legal tradition persisted in several respects.
First, law continued to be perceived primarily as an instrument, rather than as an autonomous domain with its own internal logic and modes of operation. In this respect, some scholars have argued that the implementation of EU law paradoxically strengthened the tendency to instrumentalise the law insofar as law was often interpreted as a tool for achieving integration.Footnote 31 Second, the development of a constitutional discourse was shaped by a legalistic conception of constitutional supremacy, one that did not fully displace the idea of the supreme authority of parliaments and that limited the extent to which constitutions operate as constraints to ordinary legality.Footnote 32 Third, the persistence of the belief that legal problems admit a single correct answer has encouraged lawyers to favour formalistic approaches, thereby narrowing the space for more open-ended interpretative reasoning.Footnote 33
At the same time, this account should not obscure the fact that, after 1989, Eastern European countries developed constitutional discourses grounded in an ‘internal demand to curb the authoritarian rulers’Footnote 34 and drawing on a pre-existing constitutional discourse initiated, at least in some countries, by a lively academic community.
These differences then do not prevent the emergence of a shared constitutional language within the European discourse, even if its articulation and institutional reflexes remain uneven and historically situated.
In this broader European context, placing human dignity at the centre of the legal structure resonated deeply with an important strand of European constitutional history, while being broadly compatible with other trajectories across legal cultures.Footnote 35 This intellectual move was both consistent with the founding ideals of the European integration project and revolutionary in its implications. While aligned with Europe’s aspiration for peace, it also introduced a transformative approach to legal interpretation and legal synthesis: since the protection of human dignity was construed as a shared concern across European legal systems, questions concerning fundamental rights would always be answerable within the dignity-centred European constitutional framework.Footnote 36 This held true regardless of whether the relevant legal sources were the EU Treaties, the Charter of Fundamental Rights, secondary EU law, or general principles distilled by the Court of Justice from the constitutional traditions common to the member states.Footnote 37 In matters of fundamental rights, these legal sources became virtually indistinguishable.
Domestic judicial practice in many EU member states largely internalised this approach to constitutional law and constitutional interpretation centred on the protection of rights. As the Italian Constitutional Court declared, all the different supranational and national legal formulas granting rights needed to be understood as complementing each other for the purpose of constitutional interpretation.Footnote 38 Therefore, when domestic courts interpret rights enshrined in national constitutions, they must always consider how the Court of Justice and the European Court of Human Rights construe such rights. Within the framework of European integration and of the rights-centred discourse, courts identify the correct interpretation that must be given to a constitutional provision through a moral analysis that considers which interpretation best fits the purpose of enhancing the protection of fundamental rights in a given case.
The emphasis on the role of rights in the building and life of European constitutionalism has also had institutional consequences for the relationship between EU and national institutions. The original tenets of continental European constitutionalism embraced the idea that constitutional supremacy affects not only the hierarchical rank of legal norms but – as a total constitutional frame would suggest – also the institutional architecture of the state.Footnote 39 The judicially driven nature of European integration, coupled with the supremacy of EU law, elevated the role of domestic constitutional guardians. Furthermore, the successful development of the doctrine of the horizontal effects of constitutional rights reinforced the view – widespread in European constitutional scholarship – that domestic constitutions and EU law are capable of resolving any legal or political conflict and of regulating all socially significant behaviour.Footnote 40 In this cultural and legal setting, constitutions are perceived as depoliticising rights, with the protection of rights emerging as the ultimate objective of constitutionalised legal systems.Footnote 41 Within this framework, judges who interpret legal texts in a way that identifies underlying principles and rights serve not only to enhance rights protection but also to reinforce the normativity of their constitutions.Footnote 42
Ronald Dworkin’s interpretive methodology, especially his concept of ‘law as integrity’,Footnote 43 has later provided further support to the character of EU constitutionalism. Viewing legal interpretation not simply as rule application but as a principled and moral endeavour aimed at building coherence across the legal system,Footnote 44 Dworkin’s approach has found a receptive audience in the jurisprudence of the Court of Justice. His theory reflects a commitment to interpreting legal texts in light of the best moral justification for a political community’s practices. In his influential 1993 work, Joxerramon Bengoetxea characterised the Court of Justice as ‘Dworkinian’, due to its commitment to constructing a ‘community of principle’ in support of the European integration agenda.Footnote 45 In this way, the Court developed a coherent body of case law that articulated the political morality of the EU as a political community – an approach Dworkin would have described as an instance of legal integrity built through consistent interpretation.
Moreover, the Court of Justice has also employed systematic reasoning and teleological interpretation to support principles such as supremacy and direct effect, aligning with Dworkin’s claim that judges should interpret the law as expressing a consistent set of moral and legal principles. In this sense, Dworkinian methods have contributed to the emergence of a ‘total’ constitutional structure in the EU, in which law operates as a morally charged, integrated system striving for coherence across multiple legal and political levels. This is not to say that Dworkin’s theory prescribes a total constitutionalism approach or that total constitutionalism is inherently Dworkinian. Rather, Dworkin offers a framework that helps clarifying how total constitutionalism develops its premises, insofar as its aspiration to position courts as actors that weave together principles derived from political morality into the building blocks of a legal system finds in Dworkin’s concept of integrity a useful analytical resource.
To clarify this aspect, it is essential to turn back to Bengoetxea, who identified a trend that has enjoyed sustained popularity within the Court of Justice. Over the past 15 years, Dworkinian themes have explicitly entered the Court’s internal legal debates, particularly to support broader or non-textualist interpretations of legal materials. A search of the Court of Justice case law database using the term ‘Dworkin’ reveals that between 2005 and 2023, Advocates General cited Dworkin ten times. No such citations appear before 2005, and (as expected) none are found in the Court’s own rulings, even when it adopts the Advocate General’s conclusions. Although this sample is limited relative to the Court’s overall output, it is nevertheless notable that Dworkin is cited far more frequently than either Kelsen or Hart.Footnote 46 This data may not suffice to establish a consistent Advocate General commitment to evolutionary interpretation, but it does highlight a more significant point: Dworkin is invoked to support key arguments in constructing the European legal edifice. Advocates General cite Dworkin to argue that principles of political morality should guide legal interpretation, as certain principles – such as human dignity – are intrinsic to the normative commitments of democratic states. In his Opinion in Coleman, Advocate General Poiares Maduro wrote: ‘As Ronald Dworkin has recently reminded us, even when we disagree deeply about issues of political morality, the structure of political institutions and the functioning of our democratic states we nevertheless continue to share a commitment to [human dignity].’Footnote 47
In more recent years, Advocate General Bobek, in Belgium v Commission, has encouraged the Court of Justice to embrace a ‘somewhat more Dworkinian’Footnote 48 approach to recognise ‘the fact that there are norms generating significant legal effects that find themselves beyond the binary logic of binding/non-binding legal rules’.Footnote 49 In doing so, the Advocate General critiqued Hart’s ‘narrow’ view of legal systems as composed only of rules. He defended instead the justiciability of soft law instruments, arguing that non-binding sources, such as recommendations, produce legal effects through interpretation or by influencing institutional balance and public expectations. This ‘mild’ binding force often manifests through the principles embedded in such instruments. According to Bobek, these principles generate rules ‘in light of [their] logic, context, purpose and partially also language’.Footnote 50
Bengoetxea’s interpretation has, however, been challenged by scholars, who have pointed out that Court of Justice judges adopt varied interpretive approaches and often demonstrate positivist leanings.Footnote 51 In fact, the Court has not abandoned textualist methods, particularly in the interpretation of secondary EU legislation. It is thus important to clarify that Dworkin is not cited to promote a unified or universal theory of legal interpretation that would apply to all cases. Rather, his theories are invoked as the most appropriate conceptual lens through which to understand the European project: as a judicial and evolving effort to determine the content of the governing principles that shape the Union’s political morality.
The EU constitutional framework, then, has largely been built through a legal language aligned with several of the central tenets of total constitutionalism: namely, the view that the expansive interpretation of fundamental rights and principles can lead to the constitutionalisation of virtually all legal and political disputes, ultimately reinforcing the authority of constitutional adjudication over the dynamics of political contestation.
This trajectory reveals the progressive judicialisation of constitutional meaning, a phenomenon extensively explored by scholarship. From a normative standpoint, it raises concerns: the more courts are expected to act as creators of constitutional meaning, the greater the risk that the political and social foundations of the EU edifice remain obscured. Asserting the full normative force of the Constitution is one thing; expecting this force to unfold on its own, without the need to refer back to a foundational principle, is quite another. The tension between judicial constitutionalism and democratic foundations escalated in the era of rampant populism in Europe.
The textualist approach: reaction and resistance in Central and Eastern Europe
In a vibrant Introduction to a volume examining ten years of post-Enlargement judicial practice, Michal Bobek explains that Central and Eastern European judges were used, by training and experience, to formalism and textualism. As András Jakab suggests, such approaches were consistent with socialist rule, which was preoccupied with limiting judicial creativity through patrolling interpretation doctrines.Footnote 52 Judges were then used to prioritising meticulous legal analysis over a broader, context-bound reading of legal materials, as this approach likely shielded them from any meaningful engagement with the moral commitments of the political regime.Footnote 53 At the same time, in several countries within the Soviet bloc – such as Poland and Czechoslovakia – the model of ‘façade constitutionalism’Footnote 54 did not simply persist unchallenged; rather it became the object of internal contestation and debate.Footnote 55 This discontent can be traced back to the convergence of two factors: first, the persistence of a constitutional culture pre-dating the establishment of Soviet rule, which provided the intellectual background and the vocabulary through which the limits of the existing system could be articulated;Footnote 56 second, the vitality of constitutional scholarship, which increasingly challenged the orthodox view that Soviet rule was inherently incompatible with judicial review or constitutional adjudication.Footnote 57
These developments translated into institutional innovation. The 1982 constitutional amendment to the Polish Constitution – introducing a form of constitutional review of legislation and making Poland the first country in the Soviet bloc to do so – should not be read as a marginal case.Footnote 58 Rather it is a sign of constitutional culture which evolved from within autochthonous intellectual stimuli. Crucially, the distinct legalistic mode of reasoning played a central role in this transformation. Conceiving constitutional law as a genuine branch of law, requiring the same intellectual rigour as other legal fields – led scholars to deduce the foundation of constitutional adjudication logically from the principle of constitutional supremacy.Footnote 59 The post-1990 constitutional transitions brought about a further change, later reinforced by the process of EU enlargement. This evolution contributed to the partial demise of formalism and textualism, a trend that, according to Bobek, was largely driven by the end of judiciary’s preoccupation to preserve its institutional role by not taking part in decisions with political implications.Footnote 60 Crucially, in the post-communist era, as observed by Alan Uzelac, the political influence of legal professionals – particularly judges – has increased, as judicial decisions have become part of broader political dynamics.Footnote 61
One of the most telling examples of this cultural transformation is the first President of the Hungarian Constitutional Court, László Sólyom. Sólyom maintained that the Court’s task was to establish a coherent constitutional system in which the constitutional text was complemented by constitutional decisions, forming an ‘invisible constitution’ that provided a reliable standard of constitutionality beyond the written text.Footnote 62 It is important to note, however, that the formalist and legalistic styles of constitutional interpretation did not disappear entirely. Rather, they were no longer understood as mechanisms for protecting parliamentary sovereignty, but instead as intellectual approaches aimed at ensuring the legal-technical rigour of constitutional decisions.
Years later, the implementation of EU law required precisely interpretative approaches inclined towards readings of the law that would be functional to the integration of the new member state into the EU political and constitutional project.Footnote 63 Such a requirement proved to be a formidable challenge, one for which neither political nor judicial actors were necessarily prepared.Footnote 64 The preference for textualism and for legalistic approaches – separating legal analysis from engagement with broader questions of political morality – did not disappear overnight. Rather, it continued to shape the jurisprudence of constitutional courts, such as the Polish Constitutional Court, when confronted with hard cases such as abortion rights.Footnote 65 At the same time, while arguments rooted in moral and social considerations never really took a strong hold in Central and Eastern European culture, several judges welcomed integration as a novel path that would have freed them from strictly legalistic readings of the law, which soon started to be understood as a lack of engagement with the real problems of law application.
When populist and anti-European parties reached the power in Poland and in Hungary, the textualist and formalist legal culture resurfaced and reinforced itself for reasons that have nothing to do with a revival of the socialist heritage but instead with serving different purposes, including strategically justifying the supremacy of domestic law. Courts have increasingly rejected teleological and value-based reasoning in favour of a narrow, literal reading of constitutional provisions, often couched in a rhetoric of national sovereignty and democratic self-determination.
There is no shortage of examples. Article R, section 3 of the Hungarian Fundamental Law prescribes a variety of interpretative methods and even explicitly requires that constitutional provisions are interpreted in accordance with their purpose.Footnote 66 However, constitutional practice suggests that pure textualism (or plain meaning) is the preferred method, as testified by the fact that judges’ argumentation always starts from a narrow reading of constitutional provisions.Footnote 67 The reference to the purpose, contained in Article R, needs to be read in conjunction with section 4, which requires every organ of the state to protect Hungarian ‘constitutional identity and Christian culture’. The identification of the purpose of constitutional provisions is then decisively restricted by the obligation to frame said purpose into the broader constitutional identity and religious culture. Therefore, even when using interpretative approaches that are not strictly textualist, judges are required to adhere to the set of values chosen to represent the ‘populist aim’ imbued in the Fundamental Law of 2011. The Court has then referred to the concept of constitutional identity as ‘self- identity’ and to the need to protect the ‘achievement of the historical constitution’,Footnote 68 the constitution in effect from the state foundation by St Stephen, the first king of Hungary.Footnote 69 Since the Fundamental Law is presented as being placed in ideal continuity with the historical constitution, the trajectory of constitutional interpretation described in Article R starts and ends with the preservation of the political agenda of the ruling party.Footnote 70
In Poland the link between the political project of the Law and Justice party and the battle of constitutional interpretation techniques has been openly part of the debate. In 2017, Lech Morawski, contested judge at the Polish Constitutional Tribunal, explained the Polish constitutional crisis in terms of a political conflict involving also the role of constitutional justice.Footnote 71 According to Morawski, the Law and Justice party defends the doctrine of judicial restraint along three lines: ‘1. the law should be as strict and precise as possible. 2. The Constitutional Tribunal may not create or change the law; it only decides on the constitutionality of statutes and international treaties (Kelsen’s concept of a constitutional court as a negative legislator). 3. Judges should not engage in political activity.’Footnote 72 Those ideas are believed to possess democratic credentials not enjoyed by the opposing views, supported by the then political opposition. In fact, constitutional judges should limit themselves to ascertaining the constitutionality, strictly construed, of statutes because they do not possess final authority in the interpretation of the Constitution. In this context, the government and its parliament are the expression of the people and therefore the ultimate owners of the constitution’s meaning. The Polish Constitutional Tribunal – whose composition was constitutionally questionable – entirely applied this logic when it declared unconstitutional Articles 1(1), 2, 4(3) and 19(1) TEU.Footnote 73 In its much debated K 3/21 ruling, the Court reasoned that the principle of supremacy of EU law cannot trump the application of the domestic constitution because its jurisprudential origin determines its limited force compared to principle directly included in the text of the Treaties.Footnote 74 For the same reason, the principle of supremacy cannot be attached to general principles of EU law that do not have an explicit legal basis in the wording of Treaties. In contrast, the primacy of EU law can only be maintained, when applied to competences conferred upon the EU, when it refers to ordinary statutes because the Polish Constitution expressly provides it.
The political targets are, on the one hand, the living constitutionalism doctrine and on the other the idea that constitutionalism enables judges to create laws serving moral values presumptively incorporated into constitutions, an assumption that underpins the plausibility of the total constitution model.Footnote 75
Some scholars have attributed a certain degree of responsibility in this methodological emphasis to the influential role of the German Constitutional Court.Footnote 76 The democratic critique somewhat resonates with the line of rulings of the German Constitutional Court that go from Lissabon to the European Central Bank’s Public Sector Purchase Programme judgment.Footnote 77 The German Constitutional Court repeatedly used democratic argument to challenge expansive interpretation, especially when it would grant the EU competences not expressly attributed by the Treaties. In Lissabon, it maintained that when, in the process of European integration, primary law is expansively interpreted by institutions, it creates ‘constitutionally important tension’ with the principle of conferral and with the individual member state’s constitutional responsibility for integration.Footnote 78 More recently, the German Constitutional Court argued that the Basic Law ‘protects citizens from a loss in substance of their sovereign power … resulting from the rights of the Bundestag being considerably curtailed’ by the Court of Justice’s ‘untenable’ interpretation of EU institutions’ competences.Footnote 79 The German Constitutional Court, then, has established a clear connection between methods of interpretation and the democratic legitimation of the Court of Justice’s decisions.Footnote 80
Polish and Hungarian judges might have indeed escalated arguments circulating in Europe, but the theoretical roots of their ideology are consistent with both their positivist tradition and the influence of German legal culture.
The positivist approach of the Constitutional Tribunal is evident, inter alia, in the use of the type of conventionalist argument familiar to some strands of legal positivism.Footnote 81 To test the validity of the interpretation of EU primacy suggested by the Court of Justice, Polish Constitutional Tribunal maintained that the EU judiciary, the political institutions and the member states cannot be said to consistently agree on an overreaching interpretation of the principle of primacy of EU law.Footnote 82 Therefore, the absence of an actual acceptance of such interpretation signals that the primacy of EU is not what the Court of Justice asserts it to be.
Despite (mis-)citing Kelsen,Footnote 83 Morawski reiterated arguments that largely echo with the US debate on constitutional interpretation. He claimed, for example, that the Law and Justice party was continuing the tradition of republicanism, which emphasises patriotism and values rooted in the history of a particular ‘people’, including the importance of religion and traditional family models.Footnote 84 Interestingly, American originalism – with its preference for textualism and judicial restraint – has been presented as a method of interpretation that is consistent with the tenets of republican constitutionalism.Footnote 85 The reason for this identification is the consistency between strict adherence to the original meaning and the goal of preserving the highest exercise in popular sovereignty that the Constitution is believe to embody. The Polish Constitutional Tribunal showcases an approach sensitive to the original set of values of the people when it traces back the origin of the principle of supremacy in the intention of the member states to remain the ultimate lawmakers of the EU constitutional order.Footnote 86
Similarly, the Hungarian reference to the historical constitution resonates with the restoration of the original set of values that motivates and justifies originalist jurisprudence contestation of evolutionary interpretation.Footnote 87 The universe of originalist doctrines of interpretation in its various articulations is indeed characterised by the belief that the 1787 Constitution established the unity of the American people once and for all and fidelity to that original and true sovereign requires interpreters to strictly adhere to the text. For originalists, the purpose of constitutional interpretation is to bring the constitution in line with what are represented as the original values of the founding fathers. In both the Hungarian and the Polish case, however, the purpose of constitutional interpretation appears to be to bring the constitution into line with the politically dominant view of what are supposed to be the founding values of the state.
The conceptual alignment between Polish and Hungarian textualism and American originalism may be entirely unintended, yet it reinforces the idea that constitutional interpretation in Europe is increasingly becoming a terrain of political contestation and ideological confrontations.
The capture of the two courts suggest that the formalism has served a dual function:Footnote 88 on one hand, it offered a façade of judicial neutrality and restraint; on the other, it provided political cover for illiberal agendas, by shielding controversial decisions, especially those undermining judicial independence or EU legal obligations, behind a claim of fidelity to the text.
There is something distinctive about this strategic use of constitutional interpretation: textualism is weaponised not to limit judicial power in favour of a principled restoration of the primacy of politics over law, but rather to specifically legitimise the consolidation of power by the ruling party of the moment. The approach allows these courts to sidestep the interpretive responsibilities of constitutional adjudication, such as engaging with normative coherence or the merits of supranational commitments, and instead to promote a view of the constitution as an expression of the absolute contingency of the political process. In this way, constitutions become instruments of state-centred sovereignty rather than documents regulating the functioning of a political community that is in dialogue with the supranational sphere, let alone binding expressions of shared constitutional principles, particularly those grounded in EU law. Despite their controversial political aims, the revival of positivism and textualism should be taken into consideration as it may offer an opportunity to rethink the discussion on European constitutionalism.
The vulnerability of European constitutional discourse
What, then, does the illiberal backlash in Hungary and Poland teach us about the vulnerabilities of European constitutional discourse? A first essential lesson is that arguments familiar to constitutional discourse – such as constitutional identity, supremacy, or textual interpretation – can be weaponised through the technical language of interpretation, creating reluctant alliances between intellectual traditions that would otherwise share little in common. A blend of legal positivism, a socialist tradition of self-restraint, German public law theory and, possibly, the influence of American debates on constitutional interpretation, is invoked to advance claims that raise concerns about the credibility of constitutional discourse. A closer reading uncovers a problematic dimension of these claims: the systematic conflation of state sovereignty with constitutional supremacy, which opens the door to the erosion of authentic democratic constitutionalism.
In both Hungary and Poland, legal-political resistance to the European constitutional order has relied on a strategic reinterpretation of constitutional supremacy, often framed through the language of constitutional identity. This approach draws heavily on the German Staatsrecht tradition, in that the constitution is seen as an expression of an already existing sovereign state, rather than a framework that, among other things, delegates and constrains sovereign authority.Footnote 89 This is especially apparent in Hungary’s Fundamental Law, Article R(4), which states that ‘the protection of the constitutional identity and the Christian culture of Hungary shall be an obligation of every organ of the State’. Here, constitutional identity, shielded by the supremacy of the Constitution, is presented as a pre-political, immutable value, to be defended by the courts against both domestic and supranational pressures. It is framed as prior to and superior to any democratic process or legal evolution.
This view mirrors sovereignty-based theories in which the state precedes the constitution, and the constitution merely formalises the identity and power of the state. State sovereignty is understood as state power to dispose of internal and external affairs under a regime of total independence based on the assumption that political institutions have a constitutional obligation to uphold and exercise that power in the interest of the very existence of the state.Footnote 90 It does not bear the legal meaning of the right of a government, in the terms derived by its constitution, to be obeyed.Footnote 91 The collapses of the distinction between state, its constitution and its society neutralises the space for democratic compromise. In practice, this has enabled Hungary and Poland to shield controversial legislative and executive decisions – domestically, by politicising constitutional courts and aligning constitutional interpretation with the political will of the ruling majority; and internationally, by undermining the normative authority of EU constitutional law. A positivist reading of constitutional supremacy, stripped of its liberal-democratic content, has served to legitimate the dominance of state law and policy over both rights and supranational commitments. Against this backdrop, domestic constitutions are simply the instrument for letting space for ordinary politics because narrow (and ideologically) guided readings of the constitution will eventually let legislation pass judicial scrutiny.
However, textualist and positive approaches should not be dismissed as tools exclusive to sovereign-centric models of constitutionalism. They are also articulated in broader European legal and academic debates, advanced by scholars and judges who do not seek to conflate supremacy and sovereigntyFootnote 92 but rather to reassert the contextual and contingent nature of constitutions. These arguments rest on the view that constitutions – understood as expressions of political will and products of contingent historical and cultural circumstances – cannot be divorced from their political foundations.Footnote 93 Within this perspective, a constitution is foundational not because it embodies transcendent or universal values, but because it constitutes political unity by transferring sovereignty to a legal system established through the authority of a constitution.
This perspective, which surfaces in certain discussions of constitutional identity, challenges the idea that a supranational constitutional discourse – such as that of the EU – can achieve the kind of integrative function that national constitutions may provide.Footnote 94 Failing to generate this integration, the European constitutional project becomes vulnerable to nationalist politics, as evidenced in Hungary and Poland.
Yet this line of critique also underscores a deeper conception of constitutional contingency. Contingency here refers not merely to historical specificity, but to the fact that different political and legal trajectories can emerge from similar constitutional frameworks, depending on context, interpretation, and institutional configuration.Footnote 95 Thus, constitutions reflect a model of societal organisation rooted in historical processes, safeguarded by interpretive discipline. Constitutional democracy, in turn, depends on ensuring that judicial interpretation remains substantively tethered to the constitution qua a legal document that represent an historically situated political will.Footnote 96
Under this framework, constitutional supremacy is understood not as a synonym for state sovereignty, but as the application of constitutional rules that regulate political power within democratic bounds. Supremacy is recognised as a means of constraining politics, not enabling the exercise of unchecked sovereign will. This has two important implications. First, it demands that supremacy be understood as juridical effectiveness of the constitution that needs to be applied in its entirety. Second, it requires a distinctive approach in interpretation: judges should resist interpreting constitutions through the distillation of principles when the overreaching goal is to achieve integration solely through those very principles.
These critiques should not be seen as existential threats to EU constitutionalism. Rather, the genuine form of the textualist or strict-constructionist challenge can offer a productive occasion to rethink European constitutional discourse. Above all, it cautions against allowing arguments about constitutional legitimacy, identity, and integration to become culturally co-opted, forming unexpected alliances, where concerns about democratic legitimacy, American originalism, and illiberal judicial politics converge under the rhetorical banner of constitutional supremacy.
Understanding constitutional supremacy
The basic tenets of total constitutionalism are ill-equipped to prevent the conflation of state sovereignty with constitutional supremacy. This conflation has enabled states undergoing illiberal transformations to continue employing the language of constitutionalism, even in the absence of a meaningful constitutional practice.
This statement might sound counterintuitive, since total constitutionalism is a project sympathetic to the process of supranational integration. Kumm’s argument that a ‘total constitution’ functions, pretty much as Forsthof suggested, as a juridical genomeFootnote 97 – a legal architecture through which all public and private legal relations are interpreted – resonates with the EU’s mode of integration through law. In fact, this view supports the constitutionalisation of private law via EU directives and the use of fundamental rights as structuring devices across national systems.
Under the total constitution framework, courts are tasked with ensuring a constant – and in some accounts, complete – alignment between the political regime, societal organisation, and broadly defined constitutional imperatives. This is made possible, it is argued, through sophisticated techniques of interpretation and reasoning. The goal is for the constitution to fully realise ideals such as justice, legality, and legitimacy across all dimensions of public life.
On such assumptions, that the constitution become ‘all-powerful’ – meaning that it expands its reach to resolve every legal and political conflict, and to regulate any legally relevant social conduct – might look like a desirable outcome. It is not only co-extensive with the political regime but also with social life itself. In this account, constitutional supremacy is never confined to the hierarchical ordering of legal norms or to the regulation of the political sphere; it comes to embody the paradigmatic nature of the constitution itself. The constitution becomes the model of a just society that political actors are simply obliged to deliver. By demanding that courts build a constitutional edifice where every aspect of legal, social, and political life is covered by principles discerned from the constitutional text, this model implies that constitutions are preserved neither through political negotiation nor social integration, but exclusively through judicial enforcement.Footnote 98 Ordinary legislation is viewed not as the result of autonomous political deliberation, but as the application of constitutional imperatives.Footnote 99 In this context, the risk is that parliamentary intervention is reduced to executing constitutional mandates, narrowing the space for autonomous political judgement. This logic supports the view that strict enforcement of constitutional principles is necessary to avoid societal lawlessness or political capriciousness, yet it also reveals how all-powerful constitutions may become structurally anti-political and, in this sense, anti-pluralistic.
All those risks have been addressed in the literature. What this article adds is that constitutional supremacy, under a total constitutionalism framework, risks becoming strategic for those who sustain an anti-integration agenda.
To clarify this point, it is relevant to start by stating three premises. First, total constitutionalism, despite its intentions, sits uneasily with forms of normativity originating beyond the constitutional state if they are not unified with the domestic constitution through judicial composition of the relevant legal sources. Second, such composition of legal sources happens both at the domestic and at the supranational level, opening room for conflicts, as the debate on constitutional identity has already explored. Third, it eliminates the dialectic between the legal-constitutional, political, and social spheres, a dialectic that is essential to pluralist constitutional orders of the kind purported as an ideal by the EU framework.
When the constitution – or its reading – is tied to ideological, anti-pluralist (and in that sense anti-political) premises (as in Hungary) or instrumentalised to protect ruling elites (as in Poland) this type of risk becomes evident. In such contexts, the coextensivity between the constitution and socio-political reality is legitimised ex post through interpretation: constitutional supremacy is invoked to legitimise a particular political order, which is then presented as constitutionally inevitable. This might help explain how the language of the German Constitutional Court, originally grounded in a very different constitutional tradition, can be misappropriated by captured courts in illiberal regimes.
Applying the language of total constitutionalism across a transnational order is of no use in resisting those trends. The experience of illiberal states teaches us that, paradoxically, total constitutionalist logic does not put an end to the sovereignty of the state – understood as its ability to impose its will or potentia – but rather it magnifies the ability of state sovereignty to strategically use the constitution as a means to exercise absolute authority, uncommitted to a substantive meaning of democratic constitutionalism. In other words, it is the intrinsic logic of total constitutionalism that transforms constitutional normativity into all-powerfulness and, in the hands of illiberal actors, into a conceptual device that enables the state to assert political control while denying the need for a dialectic between law and politics to the entire benefit of the latter. Denying such dialectic implies the denial of any meaningful concept of constitutional law.
Seen in this light, debates over constitutional interpretation are not merely about doctrinal preferences: they reveal deep-seated confrontation over the relationship between the sovereignty of the state and the supremacy of the constitution that has marked the early days of European public law. In that sense, those debates offer an opportunity to critically reassess the language and assumptions of total constitutionalism. For the EU, this entails moving beyond a model that places disproportionate emphasis on the authority and interpretive capacities of its Court. It equally implies avoiding interpretating the supremacy of EU law in terms of a fight for the ultimate sovereignty between the EU and its member states, the political and the judicial institutions at either level. Instead, EU constitutional discourse could benefit from understanding constitutional practice as an effort to distinguish between the supremacy of the constitutional text and the harmonic and yet dynamic interplay between the political and the legal dimension, acknowledging that there are instances where legal answers cannot be found in constitutional materials.Footnote 100 This interplay can happen proficiently, I submit, only if constitutional language moves away from those readings of constitutional supremacy that tend to its conflation with the sovereignty of the state, ultimately undermining the development of a (transnational) constitutional culture. Total constitutionalism only apparently avoids such a trap by subordinating politics to constitutional law. On closer examination, it makes the trap more attractive and even easier to reach.
Critiques of total constitutionalism often couch their argument as a general call to investigate the democratic credentials of the Union itself – including the democratic legitimacy, institutional design, and political responsiveness of its governing structures – or to reassert the importance of political institutions (and especially parliaments) over courts.Footnote 101 This article instead focuses on sharpening our understanding of constitutional supremacy to avoid framing European constitutionalism as a confrontational terrain between judicial and political institutions.
Conclusions
This article has examined the evolution and perils of total constitutionalism as a model for understanding the European constitutional order. While the project of total constitutionalism conceptually aspires to legal and normative coherence across diverse legal systems, it is also vulnerable to instrumentalisation. The experience of Hungary and Poland illustrates that interpretive techniques, especially textualism and formalism, can be used to hollow out constitutionalism itself, reducing it to a rhetorical device in the service of the pure force of politics.
A central argument of this article has been that the conflation of constitutional supremacy with state sovereignty has become a recurring interpretative strategy in these regimes. By presenting the primacy of national constitutions as expressions of an immutable state identity, illiberal actors have managed to reject the normative claims of supranational constitutionalism without explicitly denying the language of constitutional law. This development raises questions about whether total constitutionalism, at least in some of its formulations, possesses sufficiently clear conceptual tools to distinguish between constitutional supremacy as a constraint on power and constitutional supremacy as a vehicle of sovereign assertion.
Moving forward, these dynamics may invite further reflection on the vocabulary with which European constitutional integration is described, particularly with regard to the relationship between supremacy, sovereignty and integration. They also suggest the importance of approaching interpretation not only as a technical juridical exercise, but as a practice shaped by broader political and institutional conditions. From this perspective, recent developments in the Union appear to highlight the limits of understandings of constitutionalism that fail to distinguish the normativity of the constitution from claims of constitutional totality. They also point to the difficulty of juridically constructing constitutionalism in a political vacuum, as though integration could be achieved through a zero-sum contest between judicial and political authority. In this sense, clarifying and refining the Union’s constitutional vocabulary may help create space for articulating constitutional claims without capitulating to distortions.
Acknowledgements
I am deeply grateful to all the colleagues and scholars who helped improve this work through their comments, criticisms, and encouragement, and in particular to the participants in the conference ‘Global Constitutionalism and Its Limits’, held at the University of Nantes on 22 March 2024. I am also grateful to the editors and the anonymous reviewers of EuConst for their thoughtful comments and insightful suggestions. Needless to say, any remaining errors are entirely my own. I declare that I used AI-assisted language tools solely for linguistic revision and stylistic editing of the manuscript. No AI tools were used to generate substantive content, arguments, or research.
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