Constitutional Identity on Trial: Hungary and the Future of the European Union

Over the past decade, Hungary’s constitutional transformation has pushed the European Union into an unprecedented crisis. What began as political divergence has become a direct conflict between Hungary’s self-declared national identity and the EU’s constitutional foundations. At the centre of this conflict stands Hungary’s 2011 Fundamental Law- an ambitious project of political identity-building that redefines who belongs to the nations, how the state is structured, and what Hungary’s place in Europe should be. Increasingly, this project conflicts with the principles embedded in Article 2 of the Treaty on European Union; human dignity, freedom, democracy, equality, pluralism, minority protection, and the rule of law.

Rewriting Hungary From the Inside Out

Hungary’s fundamental law was drafted rapidly, passed with a government supermajority, and adopted without broad political consensus. Its opening chapter, “The National Avowal”, signals the constitution’s identity-building purpose. Unlike a traditional preamble, it is framed as a collective confession of faith, rooting Hungarian identity in Christian and ethnic heritage. This framing echoes older nationalist narratives that merged religion and nationhood, and it guides interpretation of the entire text. The Avowal declares that Hungary bears responsibility for “Hungarians living abroad”, transforming ethnic kinship into a constitutional category. By extending citizenship and voting rights to Hungarian minorities in neighbouring states, the government projects national identity beyond the state’s borders. For the EU- built on respect for territorial integrity and non-interference, this raises serious legal and political concerns. Christianity is also elevated as a constitutional value. The preamble highlights Hungary’s role in “preserving Christian culture” and gestures toward the idea of a “Christian Europe”. Christianity becomes a marker of national belonging rather than religious identity, clashing with the EU’s secular constitutional order, which requires equal protection for all beliefs. The preamble further distinguishes between “Hungarians” and “national minorities living in Hungary”, symbolically re-centring the nation as an ethnic rather than civic community. The removal of the term “republic” from the state’s name reinforces this shift. These choices place Hungary on a collision course with Article 2 TEU, which establishes pluralism, non-discrimination, and minority protection as foundational obligations- not cultural preferences.

Democratic Decay

What makes the Hungarian situation uniquely challenging for the EU is the method of transformation. There was no authoritarian takeover, no suspension of parliament or abrupt institutional breakdown. Instead, Hungary’s democratic framework was gradually reshaped through legal and electoral mechanisms. A democratically elected supermajority rewrote the rules governing media, the judiciary, checks and balances, and ultimately the constitution itself. This is constitutional capture: using democratic procedures to dismantle liberal democracy from within. Much of this process is formally legal at the domestic level. Constitutional amendments passed by a supermajority satisfy national constitutional requirements. But domestic legality does not guarantee compliance with EU law. A prominent example is the forced retirement of judges. By lowering the retirement age from 70 to 62, the government removed approximately one-third of senior judges, restructuring the judiciary under the guise of modernisation.

The Court of Justice in Commission v. Hungary ruled this violated EU rules on age discrimination and undermined judicial independence- a reminder that national constitutional change cannot violate EU obligations. This judicial reshaping is accompanied by a broader observable pattern: political control over courts, disciplinary regimes targeting judges, repression of civil society, attacks on media freedom, harassment of critics, targeting of minorities (including LGBTQ+ communities and asylum seekers), selective law enforcement, and the use of emergency powers, especially during COVID-19, to expand executive authority. These are not speculative claims but well-documented practices confirmed by numerous international observers. For the EU, the structural problem is clear. The Union was designed to prevent authoritarian ruptures. It was not designed for a member state that transforms itself into an illiberal democracy while retaining electoral legitimacy. EU law assumes that elections occur in a context of pluralism, fair media, and independent institutions. It does not account for democratic mandates being used to erode democracy itself. Illiberalism achieved through elections therefore challenges the EU more deeply than overt authoritarian behaviour. The result is a member state that remains formally within the European constitutional order, while steadily moving away from the values that define it.

Can the EU Intervene?

Critics argue it does not, citing the EU’s own democratic deficits and its nature as a non-state entity. Some scholars in Central and Eastern Europe frame EU intervention as neo-colonialism; Western Europe imposing its liberal worldview on societies with different historical experiences and ideologies. However two key facts challenge these claims. First, Hungary voluntarily accepted EU values as binding. The Copenhagen criteria required stable democratic institutions, minority protection, and rule-of-law compliance. Hungary agreed to these obligations as the price of accession. Second, national identity cannot be invoked to justify violations of EU law. The Court of Justice has made this explicit: while the Union must respect national identity, it cannot allow identity claims to undermine the EU’s constitutional principles.

Conclusion

Recent jurisprudence has transformed Article 2 TEU from a symbolic statement into enforceable constitutional law. This is a seismic shift that fundamentally reshapes the EU’s capacity to defend its core values. For the first time, the Union possesses both the legal authority and concrete mechanisms to address democratic backsliding within its own borders. The decision sends a clear message to Hungary: national identity is not a shield for illiberal governance. Hungary’s leadership claims to be constructing an “illiberal democracy”, yet this model is irreconcilable with the EU’s legal and political architecture. The EU is built on a shared foundation of liberal democracy, mutual trust, free movement, judicial cooperation, and collective governance.  a union of liberal democracies. When a member state abandons these principles, it threatens not only its own constitutional order but the functioning of the Union as a whole. This raises a defining question for the future of Europe: can a union of liberal democracies coexist with an illiberal member state? The EU’s evolving legal doctrine- particularly the enforcement of Article 2 TEU, suggests that the answer is becoming increasingly clear: no.