As founding documents of a political entity, modern constitutions articulate a new beginning. In Arendtian terminology, their language pertains to the realm of natality – constitutions reshape and, ideally, broaden the possibilities of political action. However, there is also frequently a negative dimension to constitutional norms, which mark a break with the past and promise that it shall not return. While arguably every modern democratic constitution carries such a negative dimension, even if perhaps only implicitly, in some cases, it is an essential feature of the new political identity. In other words, the new beginning is inextricably tied to the promise of never again.

This chapter examines three instances of such reckoning, through the language of democratic constitutionalism, with an autocratic past in post-World War II Western Europe: The Constitution of the Italian Republic of 1948, the Basic Law for the Federal Republic of Germany of 1949, and the Constitution of the Portuguese Republic of 1976. In the first, analytical part, I will elaborate on the different modalities, retrospective and/or prospective, through which the promise of an enduring break with the past can be established. In the second, critically oriented part, I contend that such a promise is symbolic and performative rather than normative. The point of a constitutional promise, as Arendt has taught us, is not to legislate uncertainty away, but rather to create ‘islands of predictability’ that guarantee human plurality and make political action possible. When democratic constitutions repudiate an autocratic past, they affirm their political identity as spaces of freedom. And yet, this important affirmation must not be misconstrued as an invitation to judicial activism by constitutional courts. Constitutional judges will not – they cannot – save us from the return of fascism.