Abstract
AbstractPopulist constitutionalism is an increasingly discussed topic, but so far the analysis of the interrelation between populism and constitutionalism lacks a more systematic and comparative approach, able to bring out significant variety. Most of the recent literature on the phenomenon focuses on (right-wing) populism as a threat to constitutional democracy. This Article sets out to contribute to a more comparative and comprehensive discussion of the relation between varieties of populism—situated on a continuum from left- to right-wing, but also from national to transnational—with varieties of constitutional projects. The objective of this Article is threefold. First, I argue that it is problematic to consider legal constitutionalism as exhausting the possibilities of constitutionalism. Second, if populism is reduced to right-wing projects and as an unequivocal threat to liberal democracy, it becomes difficult to distinguish between dissimilar manifestations of populist projects, in particular regarding constituent politics. Third, while hardly any attention has been paid to constitutionalism and populist claims on the transnational level, in the European context, transnational forms of populism and constituent politics manifest themselves frequently, articulating an incisive critique on the European constitutional and political status quo, and contributing to a re-imagination and democratization of the European constitutional reality.
Highlights
Populist constitutionalism is an increasingly discussed topic, but so far the analysis of the interrelation between populism and constitutionalism lacks a more systematic and comparative approach, able to bring out significant variety
If populism is reduced to right-wing projects and as an unequivocal threat to liberal democracy, it becomes difficult to distinguish between dissimilar manifestations of populist projects, in particular regarding constituent politics
While hardly any attention has been paid to constitutionalism and populist claims on the transnational level, in the European context, transnational forms of populism and constituent politics manifest themselves frequently, articulating an incisive critique on the European constitutional and political status quo, and contributing to a re-imagination and democratization of the European constitutional reality
Summary
A crucial starting point of current manifestations of populism and constituent politics needs to be the post-1945 emergence of a distinctive constitutional imagination. The post-war paradigm of. Radical, populist positions on super-majoritarian dominance, Stumpf warns that “[i]f we sacrifice rule of law values and constitutional stability on the alter of political interests, the whole society will have to pay a great price for it.” And more recently, Stumpf has argued that: Constitutional courts in situations of democratic crisis should exercise their competences to their limits to protect the constitutional foundations of the state such as the separation of the branches of government, in particular, the independence of the judiciary, and all those political rights and democratic institutions (freedom of speech, freedom of information, fair electoral system, etc.) which enable the political system to self-correct in a democratic way (e.g. at the following elections). Judicial activism that violates the competences of other branches of government can serve as a means of direct (and willful) encroachment upon the democratic process.
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