Introduction: Democratic Constitutionalism in a Populist Age

Abstract

This article introduces the special issue on Democratic Constitutionalism in a Populist Age.

The rise of populist movements in the last two decades has shaken what were, for many political and legal analysts in the Global North, established certainties: that the rule of law would be continually extended; that the protection of human rights was now, increasingly, foundational to international relations and domestic constitutional orders; that liberal democracy had become so hegemonic that even regimes that resisted democratic norms would be driven to claim that they embraced them; and that European integration had proven its worth and would sustain and perhaps extend its role in economic regulation, the protection of human rights, the fight against corruption, and the governance of migration.

But in recent years, each of these elements of supposed consensus has been challenged by movements claiming to act in the name of their people. These movements have pursued their agendas through the processes of electoral democracy, although they have also typically criticized those processes, sought to change them, sometimes undermined them, and mobilized support by extra-parliamentary means. Most of those challenges have come from populist movements on the right of the political spectrum. Prominent examples have included the Orbán government in Hungary, Modi in India, the PiS in Poland, Trump in the United States, the Brexiteers, and anti-immigration political parties across the Global North. But there have also been populist movements on the left. Like the movements on the right, left populisms have claimed to speak in the name of the people, emphasizing above all an ideal of popular sovereignty. They too have generally worked through democratic processes, although they typically reject hierarchical and genteel norms of political behaviour, champion popular participation including direct action on the streets, and sometimes are skeptical of parliamentary democracy altogether. In contrast to the right, left populists place a much stronger emphasis on economic equality and pay much less deference to private property. They have included Hugo Chávez in Venezuela, Evo Morales in Bolivia, López Obrador in Mexico, and the new parties that rose to prominence in southern Europe in the wake of the banking crisis of 2009–2012.

Indeed, the programs of right and left populists have sometimes been so different that some theorists have questioned the value of the populist label at all (Hopkin, 2020; Hunger and Paxton, 2022; Venizelos, 2019). Aren’t we just talking about illiberal authoritarians on the right and radical democrats on the left? One persistent theme in this special issue will therefore be the meaning to be ascribed to ‘populism’ given the ideological differences. That said, one must be careful not to project, without scrutiny, assumptions associated with right and left onto the populist movements that bear those labels today. Many commentators note that populist movements display considerable ideological ambiguity (Chatterjee, 2020: 93–98; Fierman, 2021; Mouffe, 2018: 11; Mudde and Kaltwasser, 2017: 6–7). Right populists, for example, are often perfectly ready to use governmental power to shape markets – although they typically do so to increase disparities of wealth (especially in the hands of themselves and their cronies) not to dampen them. As for left populists, they frequently pursue at least one policy generally associated with the right of the political spectrum, namely limits on immigration. And of course, there have also been left populists who have positively leapt across the ideological divide, the Ortegas being a contemporary example (Kinzer, 2021).

For all populist movements, their country's constitutional structure, its practices, and its norms – ‘constitutionalism’ in its broadest sense – have been a principal battleground. Populist governments have often chafed at the norms and procedures of parliamentary governance and have frequently sought to demonize their parliamentary opponents, control the media, harass civil society organizations, gerrymander electorates, intimidate or undermine electoral commissions, and restrict legislative debate (e.g. Pap, 2018; Sadurski, 2019, 2022). They have resisted judicial oversight on procedural or human-rights grounds, restructured courts to exclude independent judges, packed judicial appointment commissions, and amended their constitutions to change the scope of judicial review or restrict protected rights (e.g. Bodnár, 2022; Bugarič, 2019; Pap, 2018; Sadurski, 2019, 2022). Indeed, despite their emphasis upon the sovereignty of the people, some populist governments, when they have had a sufficient majority, have been happy to use special laws, constitutional amendments, or their hand-picked judges on high courts to entrench their policies in constitutional cement, impeding the ability of future majorities to change them (e.g. Gárdos-Orosz, 2020; Pap, 2018; Sadurski, 2019; Sonnevend et al., 2014; Suteu, 2021; Venice Commission, 2011: 6–7). The populists’ constitutional agenda has often had implications for international relations, the populists championing national sovereignty and rejecting constraints or criticisms emanating from supranational bodies. And in response, many opponents of populism have themselves sought refuge in constitutionalism, attempting to restrict populist governments through constitutional limitations or the enforcement of supranational guarantees.

The challenges of populism, therefore, bring us back to the challenges of democracy in a constitutional order. They might even appear to pose, in radicalized form, the counter-majoritarian difficulty (a term coined by Bickel, 1962): the extent to which institutions that are not directly accountable to the people – courts – can justifiably limit the actions of the people's representatives. And indeed many constitutional lawyers have adopted precisely the approach of limitation by courts, putting their faith squarely in a strategy of restriction.

That is not our approach. This special issue, and the symposium out of which it emerged, started from the premise that we should not forget the lessons of the long debates over the merits and the limitations of external constraints enforced by judicial review. We accept that there is no substitute for the will of the people as the foundation of legitimate government – that any acceptable governing structure must be grounded in some institutional expression of the principle that the people should govern themselves. To that extent, we adopt the populist democratic premise. But that, in our view, is the beginning of the inquiry, not the end. The questions then become how we should understand who constitutes a democracy's people, including how one should represent the diversity that exists within any people; what mechanisms empower a people to develop their positions and to speak; how one ensures that a people remain sovereign through time, able to think again, able to change; and, generally, what is necessary to empower a people genuinely to govern themselves – what freedoms of speech, what freedoms of association, what forms of equality, what rights of citizenship, what avenues for open political debate, what institutions for decision-making, what mechanisms for accountability, honesty, and transparency. In short, the populist challenge forces us to redouble our efforts to understand the theory and practice of democracy.

This special issue is the product of a symposium on ‘Democratic Constitutionalism in the Age of Populism’, held at the University of Victoria on 6–8 March 2020. When organizing that meeting, it became clear that our discussion would benefit from intensive engagement with a limited number of contexts. Populist movements often grow out of particular histories, appeal to those histories, and are marked by the circumstances of their origin. We wanted to ensure that our theorizing was grounded in a close understanding of those cases. We therefore decided to have, as our principal empirical reference point, the rise of populisms in Central and Eastern Europe (the CEE). Indeed this endeavour began as a joint project of the Faculties of Law of the University of Victoria and Eötvös Loránd University (ELTE). The papers published here have been shaped by the engagement with populism in the CEE, though they also draw upon several other examples. This special issue is one of three resulting from the symposium. This issue is predominantly focused on theory: how we should understand populism; what range of responses is most appropriate. Another issue, to be published in the Hague Journal on the Rule of Law, consists principally of case studies of populism and constitutionalism in the CEE. A third – the first to be published – is a set of three papers in the online journal Social Sciences dealing with populisms in southern Europe and Argentina (Catalan sovereignism, the Kurdish-Turkish HDP, the Italian Lega, Peronism) with an additional article juxtaposing such expressly populist movements to political movements in support of Indigenous peoples in western Canada (Cherry, 2021; Fierman, 2021; Kraus, 2021; Schmidtke, 2021; introduced at https://www.mdpi.com/journal/socsci/special_issues/The_Resurgence_of_Populism).

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In the collection that follows, the papers proceed from the general to the particular. The first paper, by Jeremy Webber, began its life as the discussion paper for the symposium. It provides an overview of the very broad range of elements used to define populist movements, suggests how the elements are interrelated, identifies the points at which the ensembles of elements become pathological, and draws from that analysis ways of responding to populism through continually reinforcing societies’ democratic character. Indeed, populist movements derive much of their vigour from defects in their current democratic orders, defects to which legal and political theorists need to attend and respond. In particular, Webber notes the extent to which economic injustice – and growing economic inequality – have distorted democratic politics and stimulated populist movements of both right and left. We require more deeply engaged, inclusive, and responsive democratic orders.

The second paper, by Daniel Weinstock, is of a similarly broad scope. It begins from the observation that populist discourse is inherently contrastive, drawing a stark distinction between the populists’ conception of the people and their claims on the one hand and those of their opponents on the other. Indeed, Weinstock argues that the form of populism's political appeal is often more constant than its content. The content may seize upon genuine claims – indeed, it often does – but that content is then distorted by populism's polarizing, exclusionary, and anti-institutional lens. It is the latter that is especially destructive. The best responses, according to Weinstock, therefore consider the merits of populists’ substantive claims while erecting bulwarks against the corrosive features of their methods. He especially turns to the reform of democratic institutions for solutions, giving, as one example, the ways in which political parties are structured, especially their processes for developing their policies and choosing their leaders.

The third paper, by Anna Śledzińska-Simon, focuses its attention on the politics of gender in populist movements. The prominence of gender politics in populist movements, especially on the right, is striking, and yet the relationship between the populists’ gender politics and their democratic and constitutional positions is often underdeveloped, as though gender politics should be considered an element in the substantive content of populist appeals (in Weinstock's terms) that is only very contingently related to the form of those appeals. Śledzińska-Simon fills that gap. She situates the rise of populist movements within a crisis of liberal constitutionalism, in which populists advance a vision of constitutionalism that seeks actively to limit the scope of individual rights and emphasizes instead the rights of the “people”, the rights of the “majority”. Populists on the right combine this vision with a policy of intervention in the private sphere to buttress or re-impose a conservative conception of gender relations, reinforcing socially and religiously sanctioned inequality, opposing women's control over reproduction, insulating relations within the family from scrutiny, encouraging a gendered division of labour, and marginalizing sexual minorities. The antidote, Śledzińska-Simon argues, is not a renewed insistence upon negative constitutionalism, the limitations of which have become evident, but rather a commitment to positive constitutionalism, in which individual autonomy is seen as relationally defined and where an active state strives to establish the conditions for self-determination.

Webber, Weinstock, and Śledzińska-Simon examine the encounter between populism and constitutionalism at a broad level of generality. The remaining papers explore the theory of populism in specific contexts.

The first of the contextual papers, and the fourth in this collection, is by Oliver Schmidtke, who analyzes the political discourse of the right-wing German populist party, Alternative for Germany (AfD), in order to determine whether that discourse contains inherent as opposed to merely contingent authoritarian tendencies. He shows that it does. He explores the AfD's insistence upon the sovereignty of the German people, portrayed by the AfD as homogenous, as an essential defence against a host of external ‘threatening others’: migrants, refugees, and foreigners of all descriptions. He cites the AfD's embrace of a ‘politics of immediacy’ in which the direct expression of the people's will through protests and demonstrations is preferred to the plural and compromising procedures of parliamentary democracy. Above all, he notes the similarity between these elements and Carl Schmitt's emphasis upon a sharp distinction between friend and enemy, in a continual state of exception, as the essence of politics. He shows how these elements are reflected in the AfD's political campaigns, especially its emphasis on four key policy areas: opposition to migration, to globalization, to European integration, and to regulations designed to counter the COVID-19 pandemic.

The fifth paper of the collection, by John Erik Fossum, looks at many of the same conflicts but now from the vantage point of the European Union (EU). Fossum examines these tensions in the context of the movement for greater democratization of the EU's own institutions, asking whether populist governments in EU countries are likely to promote or impede that movement. Fossum finds that populist governments generally oppose the democratization of the EU. To be sure, they criticize the EU for being technocratic and remote (as indeed do many non-populist politicians) but their essential point is that the nation-states alone are the proper bearers of popular sovereignty. They seek to de-legitimize the EU as an independent actor, opposing efforts that might lend it greater legitimacy, including democratization. They also oppose the community-building actions of the EU, especially the intersection of human rights and gender in pan-European institutions. Instead, they pursue their own policies for defining their communities, affirming an exclusive, heterosexual, and self-described Christian conception of their peoples. At one time, many opposed their nations’ participation in the EU outright, but that tends no longer to be the case. Brexit has convinced their citizens that it would be a mistake to withdraw. Instead, they seek to make the EU subservient to their nation-states.

The sixth paper, by Patricia Cochran, is only incidentally concerned with populist movements, but it is included in this issue because it brings to the discussion of populism two crucial dimensions that are often neglected: it focuses on the administrative state, not simply on the relations between electoral politics and the courts; and it emphasizes the contribution that the structuring of jurisdiction makes to the building of shared public meaning in diverse societies. It, therefore, addresses antidotes to, rather than diagnoses of, populism. Cochran explores these questions through the Caring Society litigation in Canada, which concerned a challenge, under the Canadian Human Rights Act, to the substantial underfunding of child welfare services for Indigenous children in Canada. Various agencies of the administrative state were key participants in these events, including the successive ministers who made the funding decisions, and the Canadian Human Rights Tribunal which found Canada in violation. Cochran unpacks that story, showing how the allocation of jurisdiction, together with the manner in which that jurisdiction was exercised, had an impact upon the agencies’ attentiveness, accountability, responsiveness, and even their conformity with principles of legality, which in turn shaped how those subject to the decisions considered themselves treated – as democratic citizens, or as persons subject to an un-listening and unaccountable government.

The final paper in the collection, by Richard Bellamy, weighs the acceptability of using referendums for making important public decisions. He focuses especially on Brexit, although he also draws on the experience of other referendums both within the UK and worldwide. Bellamy has long argued for a ‘political constitutionalism’ in which the procedures of parliamentary government deliver the protections often sought, but not necessarily achieved, through written constitutions. Some political constitutionalists argue that the use of referendums undermines these procedural protections. Indeed, for populists, side-stepping parliament and appealing directly to an unmediated and sovereign people can be precisely the point of a referendum. Bellamy argues against both this populist championing of referendums and political-constitutionalist critiques of referendums. He suggests that referendums can be legitimate forms of decision-making if they are sufficiently embedded within a system of representative democracy. He describes the embeddedness he has in mind, discusses the Brexit Referendum in detail, and explains why that particular referendum ought to be seen as valid within political constitutionalism – far from perfect, but valid.

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This special issue is premised on the view that the challenges of populism are the challenges of democracy. Many constitutional responses to populism seek to constrain democracy. Some are driven by a loss of faith in democracy. We don’t share that loss of faith. We think populism should drive us to think harder and more deeply about how we do democracy. Each of the papers in this special issue does that in its own way. We hope it has the same effect on you.