Populist Constitutionalism Research Articles

When Populism Meets the Constitutional Dimension: A Formal Framework for Facilitating Comparative Constitutional Studies

Abstract In this article, a systematic framework has been developed that identifies the key conceivable formal relationships that form the interface between populism and the constitution. It is concluded that while populist constitutionalism is a dead-end category because populism itself does not respect limitations on power, constitutional populism is possible. The various manifestations of constitutional populism are then broken down according to whether populism is capable of effectively influencing the content of a constitution. In the case of genuinely populist content, the various degrees of this influence are illustrated, all the way up to the almost impossible realization of a populist constitution. After a comparative application of these findings to Hungary and Bolivia and their constitutional reforms, the layers and scales at which populism can affect the state are explained using a three-dimensional representation. The article concludes by cautioning against the risks of the common practice among scholars of adjectivizing the noun ‘constitutionalism’, as in the case of ‘populist constitutionalism’, without defining the point at which the adjective corrupts the noun.

Populist Jurisprudence? Examining Selected Case Law of the Polish Constitutional Court After 2016

Since the parliamentary elections in 2015 and the subsequent change in the personal composition of the Polish Constitutional Court, this institution is in crisis. The Court, once one of the main guardians of the rule of law and a model for the constitutional judiciary in the region of Central and Eastern Europe, is criticized. Judges are accused of lack of proper appointment and party subordination. Court activities are perceived as part of illiberal democracy and populist constitutionalism, that is, introducing majority rule by “switching off” the checks and balances mechanisms by democratically elected parties and groups. However, what is often overlooked in this type of analysis is the more internal perspective of jurisprudence and legal reasoning. What kind of decisions does the “populist” constitutional court issue? How does it justify its decisions? The paper will discuss three cases of the Polish Constitutional Court. The first case is from 2017 and concerns the right of assembly in connection with the introduction of a special category of “cyclical assemblies”. The second, of 2019, is the so-called “printer case”, which concerned the possibility of refusing to provide a service for reasons of conscience (a refusal to print a poster because of opposition to “LGBT promotion”). The third case is the controversial ruling narrowing access to abortion from 2020. The aim of the analysis is to answer the question of whether the current jurisprudence of the Court is the breaking or continuation of the previously dominant liberal constitutionalism. I will be particularly interested in whether these decisions introduce any changes at the level of possible rights holders (legal subjects), the introduction of a new or changed scope of existing rights, and new ways of resolving conflicts between rights.

Populist Constitutionalism and the Judicial Overhaul in Israel

AbstractIn the last year Israel has been going through its most severe constitutional crisis in its history. The newly elected right-wing government has initiated a judicial overhaul that would limit the authority of the judiciary and grant the executive almost absolute powers. In response, the country has witnessed unprecedented civil protestations and opposition from nearly all segments of civil society, academia and economic sectors. In this article we argue that the judicial overhaul must be analysed as a populist constitutional project. We also explain that compared with other systems, Israeli democracy is especially vulnerable to populism, because of its unique institutional design factors coupled with social factors. Only with understanding these factors can one grasp the risks that the judicial overhaul poses to Israeli democracy.

What does populism mean for democracy? Populist practice, democracy and constitutionalism

ABSTRACT Over the last 30 years, scholarship has produced countless books, essays, and articles on populism by investigating it from various perspectives and angles. This article seeks to contribute to this ongoing debate by offering a political-philosophical reconstruction of populism to define such a phenomenon from a multilateral perspective. The essay will proceed as follows: The first section will investigate populism from a purely political-philosophical position, while the second will discuss the constitutional effects of such a phenomenon, to define it mainly as a form of anti-liberal and anti-judicial redefinition of democracy. Moreover, the first section will expose the dichotomy between the so-called left- and right-forms of the populist model and the populist threat to democracy, where the second will address populist constitutionalism and its antithetic relation to liberal constitutionalism. 1 1 This article is the result of a period of research spent at the CAS-SEE UNIRI – Center for Advanced Studies of the University of Rijeka, Croatia. I wish to thank the Institute and its members for the opportunity to develop this research. Part of this research has been presented at the doctoral seminar of the Doctoral School of History and Philosophical-Social Sciences, University of Rome Tor Vergata. I wish to thank my colleagues Alessandro Ferrara, Matteo Bianchin, Tonino Griffero, Claudia Gina Hassan as well as the doctoral students of our programme, for comments and suggestions.

The Supreme Court in Modi’s India

Twenty-first-century elected right-wing regimes share many similarities apart from being led by “authoritarian populists” who centralize power in themselves and represent ethnic or religious majorities at the expense of other citizens. Since higher judiciaries are key to ensuring executive accountability and the separation of powers in a liberal democratic constitutional setup, they are on the front lines of authoritarian attempts at institutional capture. Unlike earlier dictatorships that suspended existing constitutional protections or imposed martial law, current authoritarian regimes maintain a semblance of legality and constitutionalism while in practice attempting to remake the judiciary in their own image. This phenomenon has been variously termed “autocratic legalism,” “abusive constitutionalism,” and “populist constitutionalism.”In this article, I look at how the Indian Supreme Court (SC) has responded to executive incursions under the Narendra Modi regime since 2014. Even today, the court continues to deliver important democracy-enhancing judgments, breaking away from India’s colonial inheritance in matters like criminalizing same-sex relationships and adultery. However, the last decade is strongly marked by two features: first, an unwillingness to hear major constitutional issues that might challenge the regime; and second, judgments that serve as an advertorial for the regime, reinforcing an antiminority ideological orientation, justifying the government’s actions, and promoting Modi’s personality cult. By outsourcing several political decisions to a seemingly disinterested and neutral judiciary, the Modi government has been far more successful than it would have been if it had imposed those decisions purely by legislative majority. In turn, by addressing a variety of political issues as purely legal matters and not addressing them as constitutional questions, the courts have collaborated in the delegitimization of dissent and reinforced the claims of the Modi regime.

The myth of populist constitutionalism in Hungary and Poland: Populist or authoritarian constitutionalism?

Abstract The article seeks to answer the question whether the analytical framework of “populist constitutionalism” adequately describes and explains the constitutional changes that the Hungarian and Polish populist governments have implemented, respectively, since 2010 and 2015. After presenting the similarities and differences between the Hungarian and Polish constitutional developments, the article discusses the conceptual attempts of populist constitutionalism, identifying the primary and secondary characteristics that the literature attributes to this phenomenon. The main point of the article is that these criteria only partially characterize the recent constitutional changes in these two countries, and that the features that do really prevail are more indicative of an unmarked authoritarian transition than of a new, specific version of constitutionalism. It describes the different reasons for the misapplication of constitutional populism to these two countries. Finally, it explains how counterproductive the misconception of populist constitutionalism is for understanding the recent constitutional development in Hungary and Poland.

민주공화국에서의 시민교육 — 포퓰리즘에 대한 헌법이론적 측면에서의 검토를 중심으로 —

Among several important constitutional principles, populist constitutionalism emphasizes the principle of popular sovereignty or popular sovereignty. The principle of popular sovereignty is not only an important ideology of democracy, but also an important ideology of populism. The principle of popular sovereignty in harmony with representative democracy accepts the principle of rule of law as an essential component, whereas the principle of absolute popular sovereignty pursued by populism seems to be incompatible with the principle of rule of law. This is where the incompatibility between populism and liberal constitutionalism begins. Although populism's critique of liberal constitutionalism provides a very important insight into structural problems in liberal democracy, populist constitutionalism ultimately leads to the completion of an authoritarian or dictatorial ruling system to maintain their permanent maintenance of political dominance. It poses a serious threat to democracy in that it seeks to justify it through constitutional amendment or constitutional enactment. As the legal-practical approach of populism, the instrumentalist approach holds that the legal values pursued by populism are determined according to how effectively they are useful as a tool for environmental domination that well explains and predicts current social phenomena. This instrumentalist approach can be seen to contain elements of an opportunistic and seditious nature within it. Paradoxically, using the instrumentalist approach of the populists to overthrow the liberal-democratic constitutional system and to realize their political programs, the most used tool is also the constitution. Populists criticize the liberal understanding of constitutionalism and the rule of law. Their critique is the constitutional control mechanism for political phenomena based on liberal constitutionalism. What they criticize is the control of politics through the rule of law, that is, the establishment of limits for political domains through the law, that is, the pursuit of depoliticization through the law. Populists prefer the theoretical approach for critique of liberal constitutionalism and the arguments formed through it, and they share and spread their opinions on it through various media as well as various media. Despite these populists' criticisms of liberal constitutionalism and the rule of law, the starting point of the constitutional evaluation of populism must be evaluated from the perspective of democracy and the rule of law from the point of view of the liberal constitutionalism they criticize. A democratic constitutional state attempts to find a constitutional theory formed within the framework of a constitutional system in the rule of law, as a clue to solving problems related to various domestic and international political phenomena such as populism. The principle of the rule of law, which has justice, legal stability, and proportionality as its ideological components, is a dynamic constitutional concept that can be continuously developed. Therefore, in relation to the continuous development of the principle of the rule of law and the guarantee of the possibility of formation, the constitutional order is newly formed and developed dynamically in the form of populism in the conceptual framework of the modern rule of law, which has been confirmed through the practice of law and the theory of law. What legal control standards can be established and suggested over the political realities that exist? Otherwise, a democratic constitutional state must be able to develop and develop a new constitutional interpretation that seeks an appropriate and balanced point that can accommodate constitutional-developmental constitutional policies based on populism to some extent within the scope of the constitutional order.

The impact of populism on constitutional interpretation in the EU Member States

ABSTRACT The birth and spread of the term ‘populist constitutionalism’ shows that one of the distinctive features of modern populism is that it has specific constitutional ambitions insofar as it seeks to achieve its political goals through constitutional means. The constitutional ambitions of populist politicians, which are considered by many scholars as a feature of modern populism, often make it inevitable for courts to respond, in the course of constitutional review, to challenges to traditional constitutional values and institutions. Courts can respond to these claims in different ways. For example, they can engage in an activist stance, resisting the attempts that endanger the established constitutional order, they can defer to the changing constitutional policy of the political branches, or, possibly, they can try to keep their distance from political struggles. The study, based on the results of our comparative international research, examines how populism influences the methods of interpretation in the jurisprudence of constitutional courts and other relevant high courts,whether they have developed new interpretative instruments, or have used the classical ways of constitutional interpretation when facing populist aspirations. The article contributes to the present-day scholarly discourse on the effects of populism on constitutional justice in Europe.

The instrumental abuse of constitutional courts: how populists can use constitutional courts against the opposition

ABSTRACT If populists capture the constitutional court, the system of separation of powers will change. The constitutional court does not act as a counterweight to the ruling majority but rather as a tool for the ruling majority itself to advance its interests. This article unpacks this aspect of populist constitutionalism, which I referred to as the instrumental abuse of constitutional courts. Most importantly, it presents and analyses five different techniques by which populists can abuse the constitutional court as an instrument against opposition. These techniques are the ‘governing, do not disturb’ technique, consisting in not quashing unconstitutional acts; the legitimation technique, through which populists justify their actions; the delegation technique, through which populists shift responsibility for potentially unpopular actions to the constitutional court; the outright counter-opposition technique, through which populists can achieve the liquidation of their opponents; and the extra-legal technique, involving the use of the authority of judges in the media.

The Mix of Latin American Populist Constitutionalism

Abstract In this article, we study Latin American populist constitutions and their uses, seeking to analytically understand whether populist constitutionalism is, indeed, a thing. We posit that Latin American populist constitutionalism is a particular form of mixed constitutionalism in three senses: first, as a specific combination of substantive traits that includes both empowering and (some) constraining devices; second, as a peculiar politics of constitutional change that incorporates popular mobilization against pre-existing institutions as a key trait; and third, as a particular practice of constitutional enforcement that involves weak and selective implementation, often through institutional capture. By considering not only the texts of constitutions but also the ways in which they are changed and implemented, we hope to complement legal perspectives of mixed constitutions with a sociopolitical analysis of practices and contexts. By capturing the distinctive contribution of Latin American populism to the discussion of mixed constitutions, we seek to challenge both legal conceptions of constitutionalism that reduce it to negative or constraining features, and political conceptions of populism that simply equate it to authoritarian rule.

Populist Constitutionalism in Brazil and Peru: Historical and Contextual Issues

Given populism's common practice in South America, the region provides a crucial case to identify populism as a prevalent strategy by different ideologies. The link between populism and constitutionalism is paramount because populist governments typically use constituent power and constitutional identity to reach political goals. This study aimed to provide a comparative constitutional analysis of the recent development of populism in Brazil and Peru. The first was the rhetoric and practices of Jair Bolsonaro's government in Brazil, whereas the second was Pedro Castillo's government in Peru regarding constitutional reforms and human rights issues. This comparison justified that Brazil and Peru are presidential republics where harsh political polarization shakes their societies. Bolsonaro and Castillo have anti-corruption discourses and support a new constituent process but present antagonistic economic views. This study was comparative in nature that used a qualitative approach, sourced from bibliographic and documentary research that included specialized literature on South American populism and constitutionalism and the government's plans and legislation. This study showed that both governments have difficulties executing their respective agendas on customs and constituent referendums due to governability problems and important features of the constitutional design, such as eternity clauses, judicial review, and constitutional rigidity. It concluded that the populist strategies of Bolsonaro and Castillo are different. Bolsonarism is antiliberal and promotes human rights regression, whereas Castillo's populism is conservative but democratic. In common, both face the coalitional presidentialism and constitutional protection mechanisms as constraints to putting their political goals entirely into practice.
 KEYWORDS: Authoritarianism, Constitutionalism, Fundamental Rights, Populism.

Constitutional Changes in Populist Times

Abstract The article examines the impacts of populist government in Hungary on constitutional law since 2010. The criterion of the analysis is whether the comprehensive and radical changes that took place during this time have been characterized by the distinctive traits, ambitions and values that the scholarship attributes to populism and ‘populist constitutionalism’, above all anti-elitism, anti-institutionalism, anti-pluralism, the emphasis on popular sovereignty and direct democracy, and an instrumental conception of law. For this purpose, it examines the major changes in the constitutional rules and practice of sovereignty issues, the system of separation of powers, and fundamental rights. The article consists of four parts. In the first chapter, sovereignty issues are discussed including the changing approach of constituent power, constitutional identity, and the interpretation of sovereignty through an analysis of the 2011 Fundamental Law and its eight amendments. The study then reviews the changes in the system of separation of powers, that is, the transformation of the legal status and operational practices of the most important public law institutions. The next chapter provides a qualitative analysis of the situation of fundamental rights, in particular the trends in the renewed regulation of constitutional liberties and political freedoms. In addition, this part gives an assessment of the current state of institutional protection of constitutional rights. Finally, the last chapter seeks to answer the question of how the cumulative effects of these changes can be assessed; whether Hungary follows a new, specific path of constitutional development, or the constitutional changes can be interpreted within the framework of the constitutional democracy formed after the 1989/90 regime change.

Polskie spory między populistycznym a prawnym konstytucjonalizmem wobec refleksyjności konstytucji

The article aims to analyse legal constitutionalism and populist constitutionalism as two dominant ideological positions in the constitutional discourse of the last decades. The analysis is focused on the exemplifications of these positions in writings of selected Polish legal scholars, in the context of the Polish constitutional crisis of the rule of law, and conducted from the perspective of the philosophy of reflexivity. This theoretical and methodological approach enables demonstrating that the two examined doctrines – despite all the differences between them – share common erroneous assumptions regarding the relationships between law, democracy, and constitutional practice. Both of them strive to shape this practice in a closed-end and monological manner, subjected to one particular type of rationality. For legal constitutionalism, this will be juridical rationality, and for its populist counterpart – political rationality. This shared fallacy makes their ongoing dispute futile. An alternative approach to constitutionalism is to take into account the fundamental reflexivity of constitutional practice (regarded as the practice of creating, applying and interpreting a constitution, and of public debate on its text). In line with the general characteristics of reflexivity, constitutional practice appears as an open and pluralistic process, mediating between different viewpoints in society. Such an alternative is important not only when considering the Polish constitutional disputes, but also in the broader context of the contemporary crisis of liberal-democratic constitutional orders.

Parties, Democracy, and the Ideal of Anti-factionalism: Past Anxieties and Present Challenges

AbstractThis essay weaves together the history of political and legal thought, contemporary democratic theory, and recent debates in legal scholarship to examine the ambivalent relationship between political parties and democracy. Celebrated as a structural necessity for the mechanics of democratic government, political parties are also handled with suspicion for their hybrid nature—neither entirely public nor completely private—and for their always-possible regression into factions. Anti-factionalism, I show, has been a powerful ideal driving constitutional imagination and practice over the centuries, from antiquity (with its emphasis on parts and its horror over factions), to the age of democratic revolutions (with its signature anxieties about divisions), up through the present. However, this long historical process has not extinguished the long-lived concern with the nature and implications of party spirit, nor has it made party democracy completely safe from revamped forms of factionalism. Two manifestations of factional politics stand out in the contemporary political landscape: authoritarian regime changes and populist constitutionalism. While the former is easy to diagnose but hard to prevent, the latter exemplifies a torsion of the constitutional and democratic imagination from within. Despite their differences, both scenarios remind us that constitutions need to envision mechanisms to prevent parties from undermining the liberal democratic order they have been designed to serve. At the same time, they call for renewed attention to the study of parties in the domains of democratic theory and constitutional scholarship.

Populist Constitutionalism

Populist Constitutionalism

Progressive populism and democratic constitutionalism

Populism entails a critique of liberal constitutionalism. There are many varieties of populism, and hence of populist constitutionalism. This article argues that inclusionary democratic (as opposed to authoritarian) populism is related to popular and political constitutionalism. They share a common concern against the excessive juridification and depoliticization of society, and they call for the democratization of constitutional law, considering its current elitism, professionalism and legalism—that is, its insulation from politics and the people—as a source of peril. The article examines seminal contributions on popular and political constitutionalism by Mark Tushnet, Larry Kramer, and Richard Bellamy. It then identifies the radical-democratic element that these approaches share with progressive populism and discusses some aspects of the populist constitutionalism of the SYRIZA-led government in Greece (2015-2019). Democratizing liberal constitutionalism may counter the rise of authoritarian populism; in that respect, some amount of “healthy” populism might be necessary to fight “bad” populism, the article concludes.

‘Populist Constitutionalism’ and the Unionist Party during the 1911 House of Lords’ Crisis

AbstractThis article reassesses the revolt against the 1911 Parliament Act by the ‘ditchers’ – the measure's diehard opponents in the house of lords. It shows that the ditchers had a clear and coherent platform on the constitution – referred to here as ‘populist constitutionalism’ – which sought to relegitimise aristocratic political power through the adoption of constitutional reforms including the introduction of referenda. This platform had evolved naturally from Lord Salisbury's ‘mandate theory’ that utilised the Unionist predominance in the second chamber to reject unpopular Liberal legislation. Where Salisbury had adopted a tactical, opportunistic perspective, however, populist constitutionalism was more programmatic. In contrast, Arthur Balfour, as Unionist leader, adopted a more cautious approach and avoided reform until his hand was forced by the constitutional crises of 1909–11. The ditchers, as part of the Edwardian ‘radical right’, were often frustrated with Balfour's refusal to advocate measures such as the referendum. This frustration reflected similar radical right criticisms of Balfour's leadership during the tariff reform debate. Hence the ditcher revolt represented the culmination of a decade of Unionist division over the Unionist platform, Balfour's leadership, and indeed the philosophical idea of Toryism itself.

The reference to constitutional traditions in populist constitutionalism – The case of Hungary

AbstractThe paper aims to highlight the nature and the relevance of the reference to constitutional traditions in the building of populist constitutionalism, with special regard to the Hungarian case. In Hungary the goals and effects of this reference – especially the references to the achievements of the historical constitution – must be discussed at the level of the constitutional text and with regard to the formation of the new constitutional jurisprudence and, furthermore, to the creation of the constitutional identity. Outstanding political theories have been built about the elements of national populism and all include a political emphasis on a nation's pride in its culture, history and traditions. This paper examines the normative legal consequences of this in a state where the populist political forces have consecutively gained a majority in the Parliament which enables them to adopt and amend a constitution and decide on the personal make up of the constitutional court. It examines the role of the reference to constitutional traditions in the transformation of the constitutional system. The illustrative case studies from Hungary show one element of the alternative to mainstream liberal constitutional democracy: a constitutional perception of the sovereign people with a strong common constitutional heritage, this latter to be respected by all state organs and by domestic, European and international law. The paper offers an understanding of this constitutional concept and assembles disclaimers and serious legal concerns that must be taken into account, at least in Hungary, but probably in many other national populist regimes as well.

Populism, Constitutional Counter-Narratives and Comparative Law

Abstract This article tries to explore the relationship between constitutionalism and populism in conceptual terms. This piece is divided into two parts. In the first part it will be argued that the relationship between populism and constitutionalism should not be seen in terms of mutual exclusion and perfect opposition. In the second part I shall look at comparative law in order to explore its incredible anti-populist potential. More in general, as I shall try to explain, the very idea of populist constitutionalism is not consistent with the legacy of post-wwii constitutionalism.

Processing a Right to Education

I advocate for recognizing a constitutional right to education. I draw inspiration from John Hart Ely’s political process theory but take it a step deeper. While I embrace clearing the channels of access to the political process, I reject Ely’s premise that we should treat our current process as presumptively fair. A superficial focus on access does nothing to help those who have not been taught how to swim in those channels’ currents. But effective public education does. Thus, I contend that a constitutional right to education naturally extends the political process theory because it represents a practical realization of our democratic values. This paper proceeds in four parts. First, I briefly detail how our nation’s education systems fail many children and the consequent harm this inflicts on our democratic processes. Second, I describe the Sixth Circuit’s decision in Gary B. v. Whitmer, which recognized a fundamental right to literacy education. Next, I defend the decision on political process grounds. Finally, I analyze a fundamental right to education against a theory of populist constitutionalism.