In the noise of endless debates on the nature, names, and causes of the current misfortunes of democracy, relatively little effort remains for imagining how to restore lost democracy in the happy scenario where people hit the electoral jackpot and can restore constitutional democracy. By the way, restoration is a misleading word. Democracies are not pieces of antique furniture to be returned to their original condition. Years of institutional capture, social change, redistribution, and political trauma leave marks. The post-illiberal order will not resemble the pre-usurpation order. Nor should it. Restoration worthy of the name means repair, redesign, and institutional and cultural learning.

Among the circumstances of populist abuse, those who oppose this turn of events often speculate only about how to win an election in an increasingly oppressive populist-Bonapartist regime. One of the common mistakes is to identify these illiberal plebiscitarian leader democracies with autocracy. Autocracy is the Czarist regime inherited from Peter the Great of Russia. The autocracy talk overstates the problem and obscures possible exits. Elections survive, although they may increasingly resemble football matches in which one team appoints the referee and moves the goalpost, nearly at will. Yet uncertainty remains in populist regimes. Contemporary examples (Brazil, Ecuador, Hungary) suggest that unfair electoral competition may still remove governments, at least when the stars align.

To allow the miracle of voting out the usurper to happen, one needs hope. During the long winter of populist rule, a realistic vision of better things to come after elections is needed to mobilize change. Otherwise, the belief that the regime will rule forever, even after its temporary retreat, will prevail.  But in Hungary, both before the 2022 and 2026 parliamentary elections, friends of appeasement claimed that even if the opposition happened to win the election, little could be done afterwards, because of the remaining captured institutions and other constitutional shackles, like loyalist functionaries acting as veto players. The old regime loses office but continues governing through fortified veto players. It was argued that meaningful democratic restoration is impossible within legality. Meaningful change requires departure from legality, which means constitutional rupture. Constitutional rupture means instability and civil war.

This is constitutional pessimism disguised as constitutional virtue. It is paralyzing. People rarely mobilize for change if success promises only disappointment administered more competently.

People need hope to stand up against the threatening regime, but hope is a scarce good in the ever-closing skies of populist rule where irremovability radiates from above. This is why constitutional imagination matters.

Political mobilization requires more than anger against the present. It requires a believable picture of life after victory. It requires reasonable arguments that existing institutions can be changed without revolution and disorder, within the four reassuring corners of the rule of law.  Otherwise, hope becomes irrational, resignation becomes prudent, and citizens will continue to believe that even successful opposition merely rearranges personnel while leaving structures untouched.

What is needed is a realistic utopia of justice rendered. As far as the state and government are concerned, this means a realistic constitutional utopia.

This idea owes something to Karl Mannheim. This is not an attempt to redesign humanity. It seeks to show that constitutional self-government under disadvantageous contemporary conditions can be achieved without prohibitive cost. A limited ambition, but with the appearance of probability.

The German philosopher Ernst Bloch argued that imagining the future is itself a form of self-determination in view of the possible. Constitutional imagination performs precisely this function. It transforms democracy from nostalgia into a credible project.

Perhaps the utopia will be insufficient to determine a future, but it will determine what kind of democrat one wishes to be and will become.

Of course, constitutional imagination alone is insufficient. Electorates care more about justice, dignity, and economic prospects than constitutional architecture. But without imagination, there is no blueprint for transition in the service of democratic reconstitution.

One obstacle to constitutional imagination in continental Europe remains a legal culture excessively attached to statutory positivism: the belief that whatever has been enacted according to proper procedure acquires a near-sacred legitimacy. “Statutory positivism,” i.e., the unconditional power of properly promulgated laws casts a long shadow, especially in post-communist countries. “Statutory positivism” is the German attitude that enabled the German legal profession to serve Nazism. All the mischief (pilfering state assets, closing media, distorting the fairness of elections, etc.) was written into law by the populist regime. This is how ruling by cheating became normalized and lawful beyond doubt. (Many Polish judges (and earlier some judges in Venezuela) have resisted the temptation of servile legality; much less so in Hungary.)

The practical effect of this confusion of the rule of law with legality is familiar. Capture public media? Properly enacted, therefore legal. Distort electoral competition? Legal. Entrench loyal officeholders? Legal. Redistribute public assets through fraudulent legislative engineering? Legal.

The constitutional lawyer then appears to explain, with scholarly seriousness, that legality leaves no alternative.

Yet the rule of law is not administrative obedience. It is principles, reason, fairness, and decency – endorsed by tradition and living in professional habits.

To resist the shackles of the legalistic pettiness, there are plenty of opportunities offered by the rule of law. This is constitutional imagination in action. After all, the purpose of the rule of law, notwithstanding its ordinary status quo protective function (“legal security”) is not preserving every enacted arrangement regardless of function. As Martin Krygier observed, the point of the rule of law is the tempering of power. That principle leaves more room for democratic recovery than legal fatalism admits.

The rule of law as we know it does not rule out innovative application of its fundamental principles.  Where laws serve unconstitutional purposes like the unconstitutional concentration and perpetuation of political power or legalizing the stealing of state assets, or pardoning enemies of democracy – in other words, where statutory lawlessness prevails, the review of the purpose will enable the judge to declare the act null and void. This militant vigilantism is not unheard of in existing, traditional rule-of-law-conforming legal interpretation, for example, when it comes to fundamental constitutional rights (for the U.S., see, among others, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah).  

Constitutional systems already possess techniques for resisting legal forms used for unconstitutional purposes: purpose review, anti-fraud principles, proportionality, democratic self-protection. Legal imagination is not legal nihilism and transformation is a realistic utopia.

Suppose transition succeeds. But what happens next? What happens the day after, when the euphoria of taking the Bastille evaporates? Is the next day going to be a disappointing day of business as usual? This disappointing possibility is not out of the question. The Bastille has been taken. The chants fade, that is, the interviews and press releases of the victors are not breaking news anymore. The victorious party discovers that constitutions, institutions and bureaucracies inconveniently remain.

A newly elected majority may suddenly acquire enormous power and, as in the case of Hungary, even constituent capacity. Yesterday’s opposition becomes today’s constitutional sovereign. Courts may be redesigned. Long-term officeholders removed. Entrenched institutions reorganized. The inherited constitution turns into a parchment barrier. Technically, the majority in the Hungarian Parliament could do today whatever it wants, or whatever its leader with charismatic presence would like. In Hungary the 2026 election resulted in a constituent (2/3) majority with 53 percent of the votes. Because of a shortcoming in constitutional design that exists in Hungary since 1989, this majority, representing the minority of the population, can amend the constitution. Overnight. OK, in about eight working days.

Temptation enters quietly but with speed.

The danger is not necessarily bad intentions. The danger is omnipotence syndrome. The temptation is to continue with plebiscitary leader democracy, in the Gaullist tradition as the best case scenario. This is especially serious in systems with weak constitutional brakes: no federalism, no bicameralism, with flexible constitutional amendment rules. Concentrated executive power resulting in the elective dictatorship of the executive, political cultures not famous for self-restraint, and without much constitutional sensitivity and with little sympathy for, and understanding of, legal formalism aggravate the problem.

The central question therefore becomes: how does one escape inherited constraints without normalizing arbitrariness, how to overcome the lack of reason-based democratic dialogue?

Post-illiberal transition should be conceived as self-limiting from day one.

Practical problems remain: What happens if the rearguard guardians of the illiberal and antidemocratic constitution do not resign?  The Constitution will be amended overnight, and these functionaries will be dismissed. Or some of the concerned officials will continue to serve, humbly legitimizing all the measures of the new government. Opportunism knows no limits.

Both scenarios remain problematic.

First, according to binding EU law, some of the concerned positions are considered irremovable without cause and proving cause is highly problematic or at least difficult. Institutional reorganization is not always a sufficient justification either. Dismissal for the lack of high morals (though easy to prove) does not work: to remove a high dignitary who acted in the service of the indecent purposes of the regime by observing the law is also problematic legally, even if morally justified. The case of improperly appointed judges is a different matter, and according to European transnational courts, such persons can be deemed a non-judge, but in Hungary and many other populist regimes the appointments are in line with the doctored law. In a militant, properly broad understanding of the rule of law in a transition situation, undoing unconstitutional institutions and laws, one can argue that these laws served constitutionally improper goals and are, for that reason, void and, therefore, the appointments are void too. However, it is hard to accept within the frame of traditional rule of law thinking that a judge can be dismissed for dereliction of duties simply for following the existing law even if their conduct has contributed to the consolidation of an oppressive and public asset pilfering regime. After all, populist regimes, before falling into autocratic despotism, do not apply manifestly inhuman methods and judges are not the instruments of state terror.

Second, and more importantly, the constitutional checks and balances, the control of constitutionality are indispensable functions for a constitutional democracy, especially in countries like Hungary or Poland, with an omnipotent Prime Minister in control of the state in the Westminster tradition of elective dictatorship.  There is no federalism, bicameralism, stringent rules of constitutional amendment; the constitutional culture is weak, and the new public majority calls for retribution, probably with minimal legal formalism. It is unlikely that the inherited loyalists will reinterpret the inherited law in a liberal constitutionalist sense, although it is not particularly difficult to breathe into the inherited constitution of illiberal regimes (or even into the Russian Constitution) a completely different spirit. Simply getting rid of or neutralizing corrupted constitutional safeguards only creates a vacuum, an opportunity for power toward self-aggrandizement. With or without the inherited institutions of constitutional protection the problem persists.  How to create effective constitutional safeguards against transition zeal and delusions (or reality) of omnipotence? Where to find credible constitutional supervision? How not to resist the temptation of appointing, once again, loyalists? The opposition (the former compromised regime leftover) does not offer legitimate tempering influence, and single party domination may become a fact of life. One can only hope that the intensive lessons of suffering caused by the past abuse will teach self-constraint.

Third, the example of easily changed constitution and easy institutional change in the name of justice may normalize and perpetuate continuous radical reconstitution, especially if the same legal tricks and workarounds are used that were the staple of illiberal democracies. The temptation is strong to counter old workarounds with similar workarounds to undo the consequences of the first workaround. This happened in Poland when the Tusk government restructured the public television because the broadcaster continued to produce the propaganda of the previous regime. While public opinion may appreciate Measure for Measure solutions, this cannot be elevated to tradition.

The dilemma of post-totalitarianism transition was how to build a boat on open sea. Reformers faced a problem of circularity:

• An effective state is needed to create markets.

• Markets to generate resources for the state.

• This needs reform but to carry out reform legitimacy is needed.

• But legitimacy itself depends on reforms with socially acceptable outcomes.

The post-illiberal constitutional transition needed for democracy-unleashing (no democracy-building, please!) looks simpler. It must be imagined as a self-limiting process, self-limiting from day one. Contrary to post-dictatorial, post-communist transitions it can rely on a realistic utopia. The state is “only” to be liberated of capture; the economy from cronies. If the liberation is successful, the economy can generate resources for the state and for the public. If so, the performance of the economy together with the undoing of injustice will generate legitimacy. Moreover, the post-illiberal transition can rely on previous experiences (or at least flirtations) with democracy, and even in the distorted economy, business skills and resources have survived to make the economy sustainable.  The restorative transition can also rely on existing rule of law principles and habits. The task is not to build democracy from ruins but to release existing democratic capacities from capture. But this is not enough, and the transition needs unorthodox guarantees of constitutionalism. Unusual measures serving the transition need specific measures of control. For example, where the constitutional court cannot be replaced, the Parliament should rely on its own credible shadow monitoring institution by creating an independent review body that monitors all drafts. Likewise, formal or institutional guarantees of transparency in government and public control of the government shall be enabled from day one. The duration of the extraordinary transition period shall be set (and should be the shortest possible) with clear goals, etc. Transition must be self-limiting before it becomes self-congratulatory.

Constitutional transition can be a realistic utopia.

Constitutional and democratic rebuilding, if it succeeds, should leave behind institutions and a culture of reason and decency that its supporters and enemies would inherit.

There may be a wider lesson here. The circumstances differ, particularly in countries with stronger constitutional resistance, such as the United States, but the Orbán playbook had direct influence, and the 2026 undoing of the populist regime in Hungary remains inspirational. Or, perhaps, the only lesson to be learned will be that once again, where absolute power is a possibility, (nearly) absolute corruption is hardly avoidable. Without activating constitutional imagination, such corruption is likely to continue all over the world. Without constitutional imagination, democratic decline becomes self-fulfilling. And where democratic imagination disappears, arbitrary, self-perpetuating power acquires the habit of permanence.