1
Forthcoming in: Carlos de la Torre (Ed.), Routledge Handbook of Global Populism, Routledge.
Populist Constitutionalism
Paul Blokker, Charles University in Prague
Introduction
In recent decades, constitutional reform appears to be gaining momentum (see Ginsburg and
Melton 2015: 4). One might argue that we are experiencing times of ‘constitutional
acceleration’ (Palermo 2007), in that political actors appear to be increasingly taking recourse
to the instrument of constitutional reform. Innovative, popular forms of constitutional reform
have emerged, which stress the importance of, and bring into constitutional practice, citizen
participation in constitutional reform. But the people is equally a central dimension in a
different type of engagement with constitutionalism, a phenomenon which can be identified
as populist constitutionalism. In the European context, with which this chapter is
predominantly concerned, populist engagement with processes of constitution-making and
constitutional reform is a distinctive, and in some significant ways worrying, tendency.
Populism is explicitly present in the constitutional developments in countries such as
Hungary and Poland, and is causing significant tensions in the European Union, which is
formally grounded in the values of democracy, the rule of law, and fundamental rights. The
populist-constitutional phenomenon spawns debates on democratic backsliding and illiberal
democracy in Europe as well as on the supranational monitoring of democracy (cf. Closa and
Kochenov 2016). At the same time, current European manifestations of populist
constitutionalism need to be put into the larger context of important and diverse
manifestations elsewhere, including in Latin America and the United States (Urbinati 1998;
Kaltwasser 2013).
The chapter provides an attempt to more systematically conceptualize populist
constitutionalism, predominantly focusing on the European context. While there is some
emerging literature on the phenomenon of populist constitutionalism (Mudde 2013; Müller
2016; Thio 2012), a more robust and theoretical treatment of the relation between populism
and constitutionalism stills appears absent.1
The chapter starts, therefore, with a theoretically
informed discussion of the relation between populism and constitutionalism. Three different
reasons warrant such an investigation. First of all, there exists an internal link between
populism and the idea of popular sovereignty. Modern constitutionalism is equally said to
find its ultimate legitimation in the people (cf. Loughlin and Walker 2007), grounding a
democratic regime in both institutions of order and self-limitation, and of self-government
(cf. Blokker 2017). Populists claim that the principle of popular sovereignty is insufficiently
guaranteed in liberal, constitutional regimes. A key question therefore emerges, i.e., what is
the difference in interpretation or understanding, if both modern constitutionalism and
1
For an important exception, see Corrias 2016.
2
populism are said to be grounded in popular sovereignty? Secondly, an intrinsic part of
populism concerns a form of legal skepticism, in the sense that populists are wary of the
institutions of and limits of liberal constitutionalism, even if they are not necessarily against
the idea of a constitutional order as such. In other words, populist constitutionalism can be
understood as a strongly critical countercurrent to modern constitutionalism in its liberal
guise. In this, in particular the views expanded by Carl Schmitt may be of aid in exploring
this dimension further (cf. Antal 2017; Kahn 2011; Urbinati 1998). Thirdly, populism
includes political engagement in projects of constitution-making and constitutional reform.
Populists, when in power, are frequently engaging in intense reform (and abuse) of the
existing constitutional arrangements, indicating the crucial dimension of state power in
populist projects, in contrast to the idea that populism consists of a merely oppositional, antipolitical
phenomenon.
The chapter is structured as follows. First, I will generally discuss the relation between
populism and constitutionalism in the light of two main constitutional traditions.
Subsequently, the chapter deconstructs the notion of populist constitutionalism, discussing
four key dimensions, i.e., the popular will, majoritarianism, legal resentment, and
constitutional instrumentalism. The popular will tends to be understood by populists in a
closed, unitary manner, and in negation of the pluralist and diarchic nature of representative
democracy. Populists understand the majority as a collective, unitary entity, rather than as an
aggregate as in liberalism, and in contrast to, and denial of, political minorities and
opposition. Legal resentment entails a critique of the tendency to formal-rationalization and
juridification in liberal constitutionalism, and exalts the political in constitutionalism.
Constitutional instrumentalism entails a conflation of the constituting and the constituted, in
that the constitution is not understood as a higher law, but as a fundamental law that can be
changed according to political necessity. In conclusion, it is argued that populist
constitutionalism’s challenge for both liberal constitutionalism and representative democracy
lies in its connection to the revolutionary constitutional tradition, which is however
interpreted in distorted, and problematic ways, as expressed in the distinctive populist
approach to the popular will, the political majority, the rule of law, and constitutionalism.
Populism and Constitutionalism
Populism is generally understood as the negation of, or at least the existence of a problematic
relationship with, constitutional democracy. Populism plays on the second ingredient of
‘constitutional democracy’, in that populists claim to defend a pure form of rule of the people,
while having difficulties with the first ingredient, constitutionalism, at least in the way it is
generally understood.2
As Jan-Werner Müller has recently put it, ‘populism is inherently
hostile to the mechanisms, and ultimately, the values commonly associated with
constitutionalism: constraints on the will of the majority, checks and balances, protections
for minorities, and even fundamental rights’ (Müller 2016: 68; cf. Urbinati 2014). According
to Nadia Urbinati, populists seek to ‘implement an agenda whose main and recognizable
character is hostility against liberalism and the principles of constitutional democracy, from
2
Modern constitutionalism is predominantly understood as a set of constraints on the exercise of popularly
legitimated political power.
3
minority rights, division of powers, and pluriparty system’ (2014: 129). Populists are seen as
impatient with procedures and institutions, and as loath of intermediary bodies, as they prefer
unmediated relations between the populist ruler and the people. Populists prefer direct,
‘natural’ or ‘pure’ forms of politics, in contrast to indirect and artificial ones (Urbinati 1998:
111).
While it seems true that a general skepticism towards liberal constitutionalism and the rule
of law can be found amongst many populists, it equally appears correct to sustain that
populists are increasingly engaging with constitutionalism as a discourse and practice of
power (cf. Müller 2016, chapter 2). Populists, in particular once in power, engage with the
constitution in a variety of ways, not least in order to safeguard and perpetuate their political
power in the name of a ‘pure’ people. Forms of populist constitutionalism in practice are
visible in cases of what many see as forms of ‘backsliding’ or the emergence of ‘illiberal’
democracy in Central and Eastern Europe, in particular Hungary, but it is equally observable
in Latin America (Venezuela, Bolivia, Ecuador), and even in so-called established
democracies, such as the United States.3
What is more, it is possible to identify populist forms
of behavior with regard to constitutionalism also beyond populist movements in strict terms.
It is tempting to dismiss the relation of populists with constitutionalism as merely one of
abuse (Landau 2013) and of practices that go against constitutionalism and the rule of law
(see, e.g., Closa and Kochenov 2016). The relationship between constitutionalism and
populism is, however, more complex than a straightforward dichotomic view would allow
for. First, in their political projects, populists frequently take recourse to constitutional
change. It appears that populist constitutional projects cannot be entirely reduced to a mere
dismantling of constitutional democracy, but also include forms of constitution-making, for
better or worse. A second issue regards the fact that (distinctive dimensions of) populist
constitutionalism equally emerge in the discourses and actions of political actors, who are
not normally or predominantly defined as populist. This indicates a potential diffusion of a
populist-constitutional mindset into the political mainstream, which potentially leads to a
wider erosion of liberal-constitutional ideals. It may also indicate more structural trends of
change regarding the relation between democracy and constitutionalism. A third matter
regards the complexity of the claims that populists tend to make regarding constitutions,
which may be said to find reflections in constitutional-theoretical debates over the relation
between popular government and constitutionalism. A final issue is that a more in-depth
understanding of the populist-constitutional phenomenon is necessary if one wants to
elaborate, and put into practice, valid democratic alternatives. This last matter reflects the
idea that the manifestation of populism signifies a deep discomfort with, and malfunctioning
of, existing democratic institutions. It also indicates that a mere strengthening of the liberal,
constitutional-democratic state might not be sufficient nor effective.
The populist approach towards constitutionalism is, then, not entirely negative, as not least
becomes evident from projects of constitution-making and constitutional reform, as have
emerged in (the highly diverse) cases in Latin America or East-Central Europe, in which
3
See for the Tea Party’s constitutional programme, Goldstein 2011; Schmidt 2011; Zietlow 2012.
4
populism is claimed to play a role (De La Torre 2016; Batory 2016). In this, it can be argued,
as recently suggested by Luigi Corrias (Corrias 2016), that populism is related to a specific
– revolutionary and democratic - constitutional tradition, which can be best explored through
reference to the work on constitutionalism of radical-democratic thinkers, such as Hannah
Arendt (Arendt 1990; cf. Blokker 2017; Brunkhorst 2014; Laclau 2005; Möllers 2009). The
revolutionary tradition emphasizes constituent power, understood as a founding act of the
people, founding the polity anew. As Corrias argues, the understanding of the constituent
power of the people in the revolutionary tradition appears as almost absolute, and as
potentially being exercised directly in the polity (Corrias 2016: 16). What further emerges is
a primacy of politics over law in the revolutionary tradition, in that law is understood as
ultimately the outcome of political action, not the other way around. On this view,
constitutions are less understood as higher, universal principles that limit and bind political
power, as in legal or liberal constitutionalism, but rather seen as positive, political
expressions of the rules and norms that a political community wants to give itself.
The revolutionary understanding of constitutionalism is in contrast to a second tradition, the
evolutionary tradition, which understands constitutionalism as a negative, limiting
instrument, which seeks to create order and stability (Blokker 2017) and to ‘tame politics’
(Corrias 2016: 15). The pedigree of this understanding of constitutionalism is less a
democratic one, but rather related to liberal and statist understandings of constitutionalism.
The evolutionary approach is endorsing a primacy of the law over politics, displaying a
certain distrust of the people and of popular sovereignty, and understanding popular politics
as potentially threatening the constitutional order itself. It may be argued that whereas the
revolutionary tradition keeps the idea of constituent power alive in the constituted order
(Kalyvas 2008), in the evolutionary approach, constituent power is seen as absorbed in (the
institutions of) constituted power. The populist understanding of constitutionalism hinges on
the revolutionary tradition, but with a specific twist. Populism captures the popular will and
claims it its own, against other social forces, in- or outside society. Populists tend to define
the people in strong contrast to some significant Other (elites, foreign forces), and in this turn
their (idealized) construction of the People into the only acceptable, non-corrupted one. The
people is in this equated with a majority, which is understood in contrast to minorities. The
rule of law and constitutionalism cannot, according to populists, override the popular will.
Constitutionalism as such becomes a device in the populist project of rebuilding the state.
Let us now turn to the distinctive populist approach to constitutionalism, in its specific
interpretations of the popular will, the political majority, the rule of law, and
constitutionalism.
Populist Constitutionalism Deconstructed
In order to understand the specific take of populists on the democratic constitutional tradition,
an important exercise is a detailed exploration of how populism relates to constitutionalism,
what claims are being made, and what justifications are being articulated by populists. The
exploration offered here will discuss four key dimensions of populist constitutionalism, i.e.,
the popular will, majoritarianism, legal resentment, and constitutional instrumentalism.
Among others, these four dimensions may serve as benchmarks for comparative, empirical
5
analyses of manifestations of populist constitutionalism, and help to explain the specific
approaches towards constitutionalism by populists.
The popular will
As related to above, populism shares with constitutionalism the intrinsic relation to popular
sovereignty, and the idea of the popular will as the legitimatory basis of politics and the legal
order. As Margaret Canovan has stated, populists ‘their common feature is a political appeal
to the people, and a claim to legitimacy that rests on the democratic ideology of popular
sovereignty and majority rule’ (Canovan 2002: 25). Populism criticizes existing institutions
for failing to effectively make the voice of the ordinary people heard and to display forms of
distrust towards the people. If modern democracy is to be based on the idea of popular
sovereignty, from which it ultimately derives its legitimacy, then contemporary
manifestations of democracy, in terms of liberal, representative systems with strong judicial
components, tend to turn popular sovereignty into an unrealized fiction. Populists call for
making popular sovereignty a reality, which in constitutional terms means the creation of a
more direct relation between the people and the constitutional complex of norms and values.
Populists endorse, in this, a distinctive interpretation of what the popular will entails.
Populism is based on the conviction of populist forces to be representing the genuine will of
the ‘pure’ or ‘ordinary’ people, against their ‘enemies’, the latter being identified in
incumbent political classes and technocratic elites, as well as in any other opposing forces
(not least ‘international’ ones) to the populist political programme. The populist perception
is then frequently (even if not necessarily so) one of political closure and exclusion, meaning
a negation of the pluralistic nature of society and the ultimate diverse composition of any
national population, and, in its stead, the promotion of a (potentially totalitarian) idea, similar
to what Claude Lefort has called the People-As-One. As Nadia Urbinati recalls, populism
criticizes parliamentary democracy for ‘making politics a terrain of bargaining among a
plurality of interest and parties’ (Urbinati 2014: 128). Populism, in contrast, prioritizes the
political will of the real people over any kind of value pluralism or societal plurality of
groups. In Urbinati’s words, populists seek to overcome the ‘diarchic’ nature of
representative democracy, in which formal, political society and civil society are distinct.
Populists want to unite the rulers and the ruled into one common body, the People (Urbinati
2014: 130). The People envisioned by populists tends hence to be a Schicksalsgemeinschaft
or community of belonging, based on a thick identity, rather than a ‘procedural people’ that
emerges in the ballot boxes.
An example of a closed, populist construction of the People and its will can be found in the
discourses of Marine Le Pen, the leader of the Front National, and in her crusade against
‘communautarisme’ or the co-habitation of different ethno-religious communities within the
secular French Republic. Le Pen opens her programme for the 2017 presidential campaign
by stating as key objective: ‘To regain our freedom and control over our destiny by restoring
the sovereignty of the French people’ (Le Pen 2017a: 3). The programme contains various
calls for constitutional reform, including the following proposals:
The defence of national identity, [and] the values and traditions of French civilization. To inscribe into
the Constitution, the defence and the promotion of our historical and cultural patrimony…The
6
promotion of secularism and the fight against communitarianism. Inscribe into the Constitution the
principle: «The Republic does not recognize any [ethnic, religious] community». Restore secularism
everywhere, extend it to the entire public sphere, and inscribe it into Labour Law. (Le Pen 2017a: 15).
While the relation between populism and the people is intrinsic, the populist idea of the
people does not need to be an exclusionary one (cf. Mudde and Kaltwasser 2013). While in
distinctive forms of (right-wing) populism, the people is equated with an ethnic nation or a
distinctive, closed politico-cultural community, this is not always the case. Some forms of
populism emphasize a positive and more inclusionary image of the capacity of ordinary
citizens and contest the latter’s exclusion from elite-dominated democratic politics. In
relation to constitutionalism, such populists critique elitist, judicial constitutionalism, and
endorse the participation of ordinary citizens in constitutional politics. In such a more
inclusionary understanding (Mudde and Kaltwasser 2013), populism consists of the
promotion of the ordinary people - even of the marginalized, the formally non-enfranchised,
the ‘plebs’ - against the incumbent elite. The aim is to more fully realize the popular will in
democratic politics, without necessarily equating the popular will with a clearly
circumscribed people.
A good example of an inclusionary approach4
to defining the People is that of the Spanish
movement-party Podemos, which is frequently taken as an example of left-wing populism.
For instance, in its promotion of human rights, Podemos ‘constructs rights in ways that blur
the distinction between citizens and migrants – without eradicating it’ (Nash 2016: 1298).
For Podemos, foreigners are not the ‘enemy within’, and its construction of the People is
rather one which groups together those citizens (and non-citizens) that are victims of
globalization and neoliberal capitalism. This does not mean that forms of nationalism and
patriotism are entirely absent in Podemos’ discourse, but that its understanding of the People
is closer to an idea of the ‘plebs’, i.e., those that until now have been in different ways
excluded from effectively partaking in political rule (cf. Nash 2016: 1298).
Left-wing populism is a dynamic and complex phenomenon, as one can even identify
attempts to construct the People on the transnational level, as is the case of the European
movement DiEM-25, led by former Greek Finance minister Yanis Varoufakis. This prodemocracy
movement, whose key purpose is to establish a citizens-based, ‘new
4
Another relevant, but qualitatively different, example, is the (self-defined) scholarly strand of North American
populist constitutionalism, which consists predominantly in an academic debate (cf. Ackerman 1991; Kramer
2004; Levinson 1999; Tushnet 1999). This legal approach of populist constitutionalism draws on the American
tradition of populism (see Corso 2014), emphasizing the role of the people in constitutionalism and criticizing
elitism and judicial review. The democratic promise of populism becomes perhaps most clear from this debate.
Populist constitutionalists engage in ‘deploring "chronic fetishism of the Constitution, constitutional law, and
the Supreme Court," [while] these scholars are presently calling for constitutional theory that acknowledges
"that 'common' people, ordinary people-not their 'betters,' not somebody else's conception of their supposed
'better selves' are the ones who are entitled to govern our country’ (Parker 1994, cited in: Graber 2000: 373).
On this view, a populist understanding of constitutionalism seeks to recover the role of the common people in
constitutional matters, in contrast to the elitist, technocratic understandings of liberal or legal constitutionalism.
The reference to popular sovereignty is one based on the idea of participatory democracy and is defined in an
inclusive and participatory manner. Many of the contributors to the debate question the prominence of the
American Supreme Court, and judicial review in constitutional interpretation, and argue for a more significant
and effective role of the people instead.
7
Constitutional Assembly’ to ‘draft a Democratic European Constitution’ (Panayotu 2017:
14), states in its manifesto:
We, the peoples of Europe, have a duty to regain control over our Europe from unaccountable
‘technocrats’, complicit politicians and shadowy institutions. We come from every part of the
continent and are united by different cultures, languages, accents, political party affiliations,
ideologies, skin colours, gender identities, faiths and conceptions of the good society. We are
forming DiEM25 intent on moving from a Europe of ‘We the Governments’, and ‘We the
Technocrats’, to a Europe of ‘We, the peoples of Europe’ (Manifesto 2016: 7).
Left-wing populists tend to construct the People in relation to the democratic participation of
marginalized persons. In this, they endorse human rights as ways of protecting ordinary
people (for instance, through social rights, Nash 2016) and promote participatory
understandings of constitutionalism. Such views, which have not yet been extensively put
into practice in Europe (in contrast to Latin America), are radically different from currently
‘really-existing’, populist constitutional projects in Europe, as in Hungary and Poland. The
latter are predominantly grounded in a mixture of an exclusionary, ethno-nationalist, and
religious construction of the people, skepticism towards the rule of law, and strong leadership
(Corso 2014). In this regard, the left-wing populism of Podemos, Syriza, and DiEM-25, with
its emphasis on a positive image of the ordinary people and popular political
participation - has more affinity with some of the populist claims and practices in Latin
America (cf. Mudde and Kaltwasser 2013; Panayotu 2017).
Latin American neo-constitutionalism, and later radical democratic constitutionalism (Couso
2012), which emerged from the early 1990s onwards, entailed a rebellion against corrupt
elites in the name of the ordinary, marginalized, and poor classes, and often engaged in
innovative and inclusive constitution-making efforts (Noguera Fernández 2012). A relevant
example is the first constitution of a new, radical democratic nature, the Venezuelan one of
1999, which states in its preamble:
The people of Venezuela,
Invoking … the historic example of our liberator Simon Bolívar and the heroism and sacrifice of our
aboriginal ancestors … establish a democratic participatory and self-reliant, multi-ethnic, multicultural
society in a just, federal and decentralized State that embodies the values of freedom, independence,
peace, solidarity, the common good for this and future generations’ (cited in: King 2013: 373)
In Latin America, ‘popular constitutionalism’ puts strong emphasis on extensive popular
participation and displays strong distrust to technocratic discourse (Couso 2012), as the ‘new
constitutions expanded citizen’s rights while simultaneously concentrating power in the
executive’ (De La Torre 2016: 124). In contrast to the invocation of the people of right-wing
populists in Europe, i.e., in an ethno-national, exclusionary manner, in Latin America strong
emphasis has been placed on the participation of the excluded and deprived social classes,
including indigenous peoples, in constitution-making (cf. Colon-Rios 2012; Nolte and
Schilling-Vacaflor 2012). Nevertheless, also in some of the – anyhow highly diverse - LatinAmerican
experiences of populism in power, plebiscitarian and leaderist elements have
emerged, even if definitions of the people have in distinctive cases remained heterogeneous
and inclusionary (De La Torre 2016).
8
Important varieties of interpretation of the popular will in populist-constitutional projects are
hence evident. In left-wing cases (in both Europe and Latin America), populist
constitutionalism emphasizes a public claim to bring constitutionalism closer to the people
by means of rights and participatory instruments,5
whereas in Europe, in right-wing populist
programmes as well as ongoing processes of populist constitution-making, populist elites
design constitutional orders on the basis of ethno-national constructs of the People. Despite
such obvious differences, some affinities and conceptual overlaps are, however, undeniable
and relevant. Such affinities include the idea shared by populists that constitutional law
cannot be understood as radically distinct from politics, that constitutions are not reducible
to negative instruments of individual rights protection, that constitutional law is not merely
to be interpreted by higher courts but ought to be brought closer to the People and its needs,
and, finally, that constitutions ought to reflect society’s views and values (cf. Corso 2014:
445). In this, constitution-making or constitutional reform undertaken by populists tends to
depict forces obstructing constitutional change as enemies of the (good of the) People or as
representatives of particularist, private interests, rather than the common good.
The democratic potential of populist constitutionalism, in terms of the promise of a more
extensive, true realization of the popular will and the actual involvement of citizens in
democratic rule by means of constitutional change, remains in conflict with the exclusionary,
even authoritarian tendencies in any attempt to define a unitary People. The imaginary
construction of the latter as the collective subject is a negation of the ultimate diversity and
plurality of any society, and hence risks resulting in forms of exclusion and oppression. This
is particularly evident in the friend-enemy logics that is displayed in the right-wing populism
of Le Pen, Orban, and Kaczynski, but it may be equally true for the Latin American
experience with neo- or Bolivarian constitutionalism. As observed by Andrew Arato, the
‘hopeless search for a subject that incorporates the authentic or genuine “people” ’
undermines the democratic populist project (Arato 2016: 9), either due to a tendency to strong
exclusion and authoritarianism, as in right-wing populism, or due to a tendency to strongleader
executivism or the democratic dictatorship of populist leaders, as in Latin-American,
left-wing populism (Arato 2016: 291-2).
Majoritarianism
The populist constitutional project generally constitutes an attempt to ‘correct’, or even
undermine, representative democracy as well as the idea of societal and political pluralism.
Populists are inspired by the myth of the unitary People, against the fragmentation,
conflictive divisions, and artificiality of representative democracy. The method of
representative democracy to give meaning to the idea of popular representation and to verify
the people, that is, predominantly by means of electoral procedures, is contested by populists.
For populists, the aggregate that emerges in the democratic elections of representative
democracy is not a People at all, as it is merely a calculated sum of individuals, without a
form of substantive commonality and collective commitment. Populists assume that
representative politics is deeply affected by partisanship and invisible interest groups behind
the scenes that operate for reasons of self-interest, rather than the common good of the
5
See Corso 2014.
9
ordinary citizens. The political answer of populists is the majority, which is however not
anymore understood as an aggregate of different groups and interests, expressing a temporary
support to the government, but as a substantive and durable majority – still empirically
verifiable - giving expression to the general will of the People. The majority is then exactly
that part of society that is in agreement with the populist political programme (cf. Urbinati
1998) and can be embodied by a singular leader who expresses the popular voice. A good
example of such a collectivist view can be found in a seminal speech pronounced in 2014 by
Viktor Orbán, the head of the current populist government in Hungary:
[The] Hungarian nation is not a simple sum of individuals, but a community that needs to be organized,
strengthened and developed, and in this sense, the new state that we are building is an illiberal state, a
non-liberal state. It does not deny foundational values of liberalism, as freedom, etc.. But it does not
make this ideology a central element of state organization, but applies a specific, national, particular
approach in its stead.6
The homogeneous idea of the People as expressed in the majority is often identified by means
of historical, cultural, and identitarian elements (the nation), but this is not necessarily the
case. The majority can also, in a way simply, be identified as those that ‘are with us’, that is,
those that until recently have been mispresented by democratic politics and that have been
victims of corruption, marginalization, deprivation, and/or impoverishment (cf. Mueller
2016: 49).
When coming to power, the populist leader, legitimated by the popular majority, replaces
corrupt elites and will start a cleaning-up process, which is to result in a robust and direct
representation of the victimized majority. For instance, in the case of Venezuela, Hugo
Chavez engaged in a comprehensive process to ‘sweep the deck clean, removing opposition
figures from power and replacing them with institutions he could control’, in the name of the
People (Landau 213: 206). In constitutional terms, the populist emancipation of the People
may involve the inclusion of explicit references to the People or the nation in the constitution
(often, but not only, in its preamble), the codification of norms that can be related to values
and ideas of the People, the concentration of executive power so as to be able to directly
represent the People (and avoid contracted and pluralistic political processes that favour
partisan interests), as well as the usage of participatory institutions, such as constituent
assemblies. Populists promote constitutional, electoral and direct-democratic instruments
that enhance majority or plebiscitarian rule, often to the detriment of political opposition.
Legal resentment
The relation between populism and the rule of law, as mentioned earlier, is a strained one.
This relation is deeply affected by a critical attitude that could be labelled legal skepticism
or ‘legal resentment’, a critical stance towards liberal and legal constitutionalism, and the
latter’s juridification and rationalization of society (cf. Blokker 2013; 2016). In important
ways, this attitude might be related to a Schmittian understanding of the constitution, and to
Carl Schmitt’s critique of liberal constitutionalism and its conception of the rule of law (cf.
Böckenförde 1997). A Schmittian view of constitutionalism understands the constitution as
6
Emphasis added. The English version is available at: http://budapestbeacon.com/public-policy/full-text-of-
viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014.
10
an expression of political unity and as a protection of the state’s existence (cf. Kahn 2011).
It does not accept the idea of the constitution as a higher law, emanating from a foundational
or basic norm, but rather emphasizes the ultimately political nature of the constitution. In
this, it places the political before the legal, rather than the other way around, as in liberal
constitutionalism. This dimension is well-reflected in contemporary populism, as attested by
a statement of Jarosław Kaczyński, the eminence grise of the Polish Law and Justice Party
(PiS),
(…) the state based on the rule of law does not have to be a democratic state. In a democracy, the only
sovereign is the nation. The parliament and, in the Polish conditions, the President are its
representatives. These two state organs are responsible for the creation of law. To these bodies belongs
the control over our lives.7
The people as the main source of legitimacy provides a core element in a variety of forms of
populism. The populist emphasis of the unmediated, direct rule of the people means that any
limitations on such rule – such as in the form of the division and limitation of powers, and
the institutions of representative, parliamentary democracy found in liberalism, are viewed
with great skepticism. For different reasons, such a skeptic attitude towards representative,
parliamentary democracy and liberal understandings of the rule of law, rights, and
constitutionalism is shared by left- and right-wing populists alike.
As observed, this dimension of constitutional skepticism or legal resentment can be fruitfully
explored by taking recourse to the works of Carl Schmitt. One dimension in Schmitt’s
understanding of constitutionalism is, as is well-known, his argument that ultimately any
constitutional arrangement is grounded in, or originates from, an arbitrary act of political
power. In the final instance, this means that the strength, legitimacy, and efficacy of a
constitutional order cannot be reduced to a set of universalistically understood values and
norms, but rather has to be traced to a ‘coherent political decision by a particular “will” ’
(Scheuerman 1999: 68). The Rechtsstaat, in Schmitt’s view, is always preceded by the
Machtstaat (Slagstad 1988: 108). According to Schmitt, the normativism of liberal
constitutionalism hides the ‘original moment’ in which constituent power manifests itself. In
other words, in liberalism, constituent power is believed to be adequately absorbed, or
exhausted, in the institutions of constitutional democracy (cf. Kalyvas 2008; Scheuerman
1999: 70). The positivist edifice that, in the liberal narrative, emerges as the constitutional
democratic state, constructs a political reality based on abstract, self-contained institutions
and juridical norms. In this narrative of formal rationalization and juridification, the rule of
law therefore rules over the people. Schmitt’s anti-normativism comes through in his
assessment that the formal-rational liberal construct weakens and depoliticizes the polity and
denies that political reality is ruled by ‘tangible people and organizations’ (Slagstad 1988:
112). Liberal constitutionalism, in its ‘references to norms and rules is pure rationalization
that conceals an underlying struggle for power’ (Slagstad 1988: 118).
7
Cited in A. Balcer (2017), ‘Beneath the surface of illiberalism’, WiseEuropa, p. 47; available at: http://wiseeuropa.eu/wp-content/uploads/2017/02/Beneath-the-surface-of-illiberalism.pdf.
The frequent changes of the
Hungarian Fundamental Law adopted in 2011 equally point to a primacy of politics.
11
This anti-normativism is equally a dimension found in contemporary populism. Populists
express a critique of liberal constitutionalism as a-political, universalistic, and as an
internalistic, legal matter, separated from politics, and concealing real political struggles, and
liberal constitutionalism, with its independent and self-referential juridical institutions, is
dismissed by populists as an artificial construct that weakens and alienates the popular will.
A second essential aspect in Schmitt’s thought is the idea that the ‘state is the political unity
of the people’ (Böckenförde 1997: 6). A constitutional order emerges from the ‘relative
homogeneity of the people held together by some sense of solidarity’ (Böckenförde 1997: 7),
defending itself against others, understood as enemies. This understanding of the people as a
homogenous unity that stands at the basis of the constitutional order implies a specific
understanding of constitutionalism, in which the latter is ultimately to guarantee the existence
and survival of a homogenous people. As Böckenförde argues, ‘[c]onstitutional law then
appears as the binding normative order and form determining the existence, maintenance,
and capability for action of a political unity… It is and must be the specific telos of
constitutional law to facilitate, preserve, and support the state as a political order and unity’
(1997: 8). Constitutional law is to preserve the very existence of the political unity. In (in
particular right-wing) populist constitutionalism, such a claim to the survival of the political
unity appears as an essential, legitimatory factor in the engagement of populists with
constitutions.
In populism, four dimensions of legal resentment stand out, indicating a problematic relation
to the liberal ideas of the rule of law and constitutionalism. First, the liberal understanding of
the rule of law is criticized as an obstacle to achieving political unity or to protect the
existence of the collectivity; in this, as noted, the political is understood as prior to the rule
of law (Böckenförde 1997: 12). Populists argue that the rule of law is not the framework of
the decision-making process, as in liberalism, but rather the vehicle of the decisions of the
true representatives of the People or political collective: ‘the constitutional guarantee of the
rule of law must be added to an existing political unity and form. It cannot exist independently
of such a political unity; nor can it achieve efficacy by claiming a general priority over the
political unity’ (Böckenförde 1997: 12). Second, the indirect, representative and pluralistic
view of democracy found in liberalism is contested, as it creates a division in society between
rulers and ruled. With this, the procedures of liberal democracy (checks and balances,
division of powers, parliamentary debate, rights of the opposition) are contested as
cumbersome and artificial, and as constraining the true political will of the People. Third, the
collectivity comes prior to the individual, and, hence, the individualistic and universalistic
view of human rights in liberalism is viewed with suspicion. Human rights form in this
reading obstacles to, and a relativization of, the political community. Fourth, there is a great
suspicion of law and judicial decisions external to the domestic arena. In other words, a
universalistic interpretation of law and international norms, and in particular of human rights,
is denied. Rather, human rights ought to be always applied in a national context by national
judges (Nash 2016; Oomen 2016). The critique is that international norms are not democratic
(reflecting the popular will), and form an obstacle to domestic democratic decision-making
12
in the name of the People.8
A clear example of the latter is the recent constitutional reform
proposal of Le Pen, entitled ‘La Révision constitutionnelle que je propose aux français par
référendum’ (2017b). In the second chapter, Le Pen calls for the ‘re-establishment of the
superiority of national law’, by means of the elimination of references to the EU in the French
Constitution (title XV) and the revision of article 55, which renders international law superior
to French domestic law (2017b: 4).
Legal resentment should be understood as a largely negative perspective and as a critical
perception of liberal or legal constitutionalism. As has often been argued, constitutional
democracy combines the ideas of order and the rule of law, on the one hand, and collective
self-rule or autonomy, on the other. In the idea of order, the emphasis is on constitutionalism
and the rule of law as external constraints put onto democratic politics. The rule of law
provides protection from state abuse to individual citizens and different groups in society. In
the idea of collective autonomy, the main principle is the idea that people ought to obey only
to laws the making of which they themselves have participated in (cf. Vatter 2012: 43). Legal
resentment criticizes this view of the rule of law as a means of institutionalizing elite rule
rather than as providing protection from state abuse. In other words, the argument is that
constitutional democracy institutionalizes a system with a strong distinction between ruling
elites and the ruled, which prevents popular, collective self-rule from coming about. Legal
resentment thus includes a critique of liberal constitutionalism as not living up to the idea of
self-rule by the demos, but it does so by emphasizing a direct link between popular opinion
and popular will. It should be noted, though, that this generally does not entail the
endorsement of the actual participation of citizens in decision-making (Urbinati 2014: 131).
Legal resentment entails a negative view of liberalism and representative democracy, and, a
negative concept, it does not provide a positive theory of the constitution itself. This is, as
we have seen, in turn expressed in illiberal and populist ideas of constitutionalism, which
propose a different understanding of (constitutional) law, emphasize the emancipation of the
‘plebs’ and which tend to emphasize the idea of the People-As-One (Lefort 1988). In this,
legal resentment comes prior to 'nonliberal constitutionalism',9
'illiberal constitutionalism'
(Thio 2012), 'abusive constitutionalism' (Landau 2013), and 'counter-constitutionalism'
(Scheppele 2004), in that it indicates a skeptical or critical relation to legal formalism, the
rule of law, and liberal democracy.10
While liberal constitutionalism promotes a universally
valid and formalistic programme of the separation of powers, the rule of law (rather than the
rule of men), and the neutrality of the state, illiberal and populist forms of constitutionalism
question the universality of such notions. In some versions, such forms of constitutionalism
prioritize particularist and historical values related to a distinctive political community, and
on this basis, justify political interference in legal matters.
8
Barbara Oomen speaks of a ‘human rights backlash’ in discussing the case of the Netherlands, where since
2010 the legitimacy of the ECtHR is increasingly contested (Oomen 2016). Another obvious case is the UK (cf.
Nash 2016).
9 According to Walker, in 'postcommunist lands as elsewhere, there is sometimes less than full enthusiasm for
the liberal, individual rights-oriented approach to constitutions' (Walker 1997: 154).
10
Legal resentment is then not the same as populist constitutionalism. Radical and participatory democrats
equally criticize liberalism and representative democracy, but come, on the basis of sometimes similar critique,
come to very different positive programmes of constitutional democracy.
13
Constitutional instrumentalism
In the political practice of populists, in their ‘occupying the state’ (Mueller 2016; Urbinati
2014), one can detect a specific, instrumentalist approach to constitution-making and
constitutional revision. In populist constitutionalism, this attitude is the result of the negative
evaluation of liberal constitutionalism in legal resentment, and it manifests itself in the
downplaying of the constitution’s status as a rigid, higher law (as much emphasized in liberal
or legal constitutionalism). In this, an instrumentalist approach11
engages on a rather frequent
basis with constitutional revision, as a result of the view that a constitution ought to be open
to amendment and change according to the needs of the political majority and/or the
necessities of particular historical periods. A case in point is the new Hungarian Fundamental
Law, which, since its adoption in 2012, has already been amended six times. A further
example is the assault on the Constitutional Tribunal by the Polish government, informed by
the idea that it is not the Tribunal that ought to have the final say on the Constitution’s
interpretation, but parliament or the government. As recently stated by Lech Morawski, a law
professor and one of the contested, new judges of the Tribunal, installed by the Law and
Justice (PiS) government: ‘[t]he legislative activity of the [Constitutional Tribunal]
significantly distorts the principle of separation and balance of powers, since in practice it
means that the supreme legislative power is exercised not by the parliament and the
government but by the constitutional court’.12
It should be stressed that an instrumental or at least a political/‘flexible’ view of
constitutionalism is not exclusive to (right-wing) populists, but can equally be observed in,
for instance, radical-democratic approaches. In some ways, constitutional instrumentalism
can be understood as the down-grading of (comprehensive) constitutional reform, down from
the level of higher law to the lower level of doing politics as usual, often serving narrow
majoritarian or partisan objectives rather than the common good, or worse, abusing
constitutional reform for illiberal or non-democratic purposes. In general terms, one can
distinguish between two types of constitutional instrumentalism: 1) a modernization
approach, which is predominantly concerned with the updating of the constitution, which
emphasizes the anachronistic nature of the existing constitution and points to societal
acceleration as a key cause of the need to revise the constitution; and 2) a redemptive
approach, which emphasizes the need to radically change the constitution in order to (re)establish
the sovereignty and rule of the people, and to undo past wrongdoings.
In modern constitutional democracies, constitutional instrumentalism indicates a move away
from dominant theories of legal constitutionalism. Liberal or legal constitutionalism as it has
11
There is some affinity between constitutional instrumentalism in modern constitutional democracies and the
so-called ‘theory of constitutional instrumentalism’ that has been prominent in the analysis of socialist or
communist constitutions. According to Sidel, this theory was both a descriptive lens used by scholars observing
socialist constitutional processes as much as it was a perception amongst components of Communist Parties
themselves (Sidel 2008: 19). Constitutional instrumentalism emphasized the control of the Party over the
Constitution and its manipulation of the Constitution as a mobilizational device, to be revised when necessary
to serve political purposes (cf. Sidel 2008: 18-9).
12
Lech Morawski, ‘A Critical Response’, VerfBlog, 2017/6/03, http://verfassungsblog.de/a-critical-response/,
DOI: https://dx.doi.org/10.17176/20170603-165621.
14
become predominant in the post-Second World War period is firmly grounded in the idea of
constitutions as higher laws, as a distinct set of foundational norms, largely separated from
(majoritarian) politics. This is equally visible in the trend towards independent courts as final
arbiters of constitutional norms through judicial review and the idea of entrenched
fundamental rights. In the legal view of constitutionalism, amendment is normally made
difficult (or even virtually impossible) by means of different types of hurdles (adoption of
amendments by supermajorities, eternity clauses or the absolute entrenchment of norms,
constitutional review, minimum quota for initiation, territorial conditions, restricted access
to initiation, the usage of ex post referenda).
A constitutional-instrumentalist attitude perceives constitutional temporality in a different
way. In liberal or legal constitutionalism, endurance of the constitution is highly valued, also
as an expression of a consensus on the foundational values of the political community. In the
perception and practice of constitutional instrumentalism, such a static view of the
constitution is often absent or downplayed. A dynamic engagement with the constitution is
seen as a necessary response to the rapid changes of ‘post-modern’ society (in which politics
needs to rapidly respond to societal change) (cf. Prandini 2013) or as an urgent answer to
imminent threats to the political community. In either way, the static temporality of legal
constitutionalism is abandoned in favour of a view of a more upfront political relation to
constitutionalism.
In practice, this means in the most radical instances a much less clear-cut distinction between
constitutional and ordinary politics. In some ways, constitutional instrumentalism might
indicate a relation to political constitutionalism, in which parliament plays an important role
in constitutional interpretation and change. While constitutional instrumentalism is clearly
not a phenomenon that is reducible to populist constitutionalism (a variety of democratic
interpretations of constitutionalism equally perceive constitutions in a more open and flexible
way, cf. Tully 2008), it is a significant part of the populist approach to constitutions, in that
the latter understands constitutions vehicles of the popular will, rather than as significant
constraints on that will.
Concluding Remarks
Populist constitutionalism cannot be understood in a straightforward, dichotomic way, that
is, as an outright denial of liberal constitutionalism and the rule of law. Rather, it is better
understood as a form of constitutional critique and ‘counter-constitutionalism’. While I agree
with Nadia Urbinati that populism in general cannot be seen as democratic (for instance, due
to the populist tendency to deny pluralism and political opposition, its insistence on political
unity and the People-As-One, its emphasis on strong leadership, and its negation of isegoria)
(Urbinati 1998; 2014), the populist critique on liberal constitutionalism does invoke relevant
critical dimensions of the current democratic malaise. In addition, a variety of manifestations
of populism construct the People differently, and have different interpretations of what
popular sovereignty and the popular will signify.
The argument here has been that populist constitutionalism in its variegated manifestations
can be explored by reference to four dimensions: the popular will, majoritarianism, legal
15
resentment, and instrumentalism. The popular will pertains to the dimension of legitimacy
and the ultimate origins of political power. Populists claim to represent and give voice to the
‘pure’ People, a construction that cannot be equated with the empirical People, but rather
consists of a symbolic invention of a People which in many ways is still to come. The
populist-constitutional project is then to significantly further and defend the will of the
mythical People by constitutional means. Many forms of populist constitutionalism do not
build on a consensual view of society, in which various forces need to support the
constitutional arrangement that binds all, but rather takes a majoritarian approach that
defends and expands the interests of an imagined majority. This often means contrasting of
a ‘good’ or ‘moral’ majority against an ‘immoral’ minority. The populist-constitutional
promotion of the ‘good’ majority equated with the People is generally skeptic of the potential
of existing legal instruments and institutions, not least due to their compromised nature, that
is, as institutions of the status quo. Populist constitutionalism endorses a different view of
constitutionalism, non-liberal, of which a closer proximity to popular needs and input is
claimed. This also means that populist constitutionalism tends to be more prone than liberal
constitutionalism to use formal and informal constitutional instruments of amendment in
order to further its constitutional cause.
These dimensions indicate a populist claim towards the repoliticization of democracy –
against juridified, depoliticized understandings of constitutionalism - and attempts at the
collective mobilization for, and engagement in, a political project. In this regard, populist
constitutionalism claims to pursue emancipation from the heteronomy that results from too
strong an emphasis on legal order, abstract (external) rules and norms, and it provides an
appreciation of the dimension of power and struggle underlying constitutional arrangements,
while denouncing the lack of inclusion of ordinary and marginalized people in politics. In its
critical dimension, populist constitutionalism brings to the fore the intrinsic problems of a
one-sided legal constitutionalism grounded in hierarchy, judicial prerogative,
foundationalism, and depoliticization, which tends to result in a lack of democratic
interaction and engagement of larger society with constitutionalism. The answer provided by
populist constitutionalism is, however, a tendentially authoritarian and even despotic one,
which ultimately risks to undermine a radical-democratic innovation of constitutionalism that
prioritizes constitutional engagement and authorship of the people qua democratic citizens.
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