Populist Constitutionalism? (3): Populist Constitutionalism – An Oxymoron?

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In anticipation of our Workshop on Populism and Constitutionalism on 20 November (info & sign up here) we are publishing a series of blog posts in which the speakers will outline their thoughts on the topic. We are continuing our series with a contribution from Gábor Halmai, Professor of Comparative Constitutional Law at the EUI, who, reflecting on populist developments in East-Central Europe, questions whether populism and constitutionalism are reconcilable at all. See our previous posts here and here.

Populism and Constitutionalism in East-Central Europe

by Gábor Halmai, Professor of Comparative Constitutional Law, European University Institute

This paper deals with recent deviations from the shared values of constitutionalism towards a kind of ‘populist, illiberal constitutionalism’ in East-Central Europe. The theoretical question these backslidings raise is whether populism and illiberalism are reconcilable with constitutionalism at all. Due to my focus on the region, I’ll concentrate on a particular version of populism, which is nationalist and illiberal, and is mainly characteristic of the countries of East-Central Europe, most of them being members of the European Union, a value community based on liberal democratic constitutionalism.1 This means that the statements about the East-Central European populist constitutionalism in this paper do not necessarily apply to other parts of Europe (Greece and Spain), Latin-America (Bolivia), or the US, where populism has a different character and its relationship to constitutionalism is also distinct from the one in Hungary or Poland.

The constitutional theory of populism

While populists readily attack the ‘establishment’ while in opposition, they strongly protect their own governmental institutions when in power.

The relationship between populism and constitutionalism has proven difficult to define. From the large range of definitions of populism, I use the one provided by Mudde and Kaltwasser, who define populism as a “thin-centered ideology that considers society to be ultimately separated in two homogeneous and antagonistic camps ‘the pure people’ and the ‘corrupt elite,’ and which argues that politics should be an expression of the ‘volonté générale’ (general will) of the people.”2 Some scholars argue that populism rejects the basic principles of constitutional democracy,3 understood as limited government, governed by the rule of law, and protecting fundamental rights.4   Luigi Corrias argues that populism’s mostly implicit constitutional theory contains three main claims: one concerns the nature of constituent power, the second one regards the scope of popular sovereignty, and the third relates to its approach of constitutional identity.5

Regarding constituent power, populists claim not only that it belongs to the people, but also that it is almost absolute, and is potentially being exercised directly in the polity. The absolute primacy of constituent power of the people applies also vis-á-vis the constitution, which is in contradiction to the concept of the constitution being a ‘higher law’. Unlike liberal constitutionalism, populists claim that not only the original or primary pouvoir constituent, the constituent power, in the sense of the power to create a Constitution, but also the derivative or secondary constitutional amending power belongs to the people alone, meaning, for them, that the latter is also unlimited. This also means an absolute primacy of politics over the law. By not accepting the authority of the law, populists reject the dualism of law and politics, the common characteristic of both the American and French revolutionary, and the German and British evolutionary approach of constituent power.6

For popular sovereignty, as Corrias argues, populism holds that the people are a given unity and that it is present as such in the polity, often through the means of direct democracy, such as referendums, and that representation merely serves as a tool to give voice to the unity.7 But as Pinelli rightly points out, contemporary populists do not necessarily reject representation, nor do they necessarily favour referendums.8

For instance, Viktor Orbán’s Fidesz party tried to undermine the legitimacy of representation: after losing the 2002 parliamentary elections, he refused to concede defeat, declaring that “the nation cannot be in opposition, only the government can be in opposition against its own people,” while after the 2010 electoral victory he claimed that through the “revolution at the voting booths” the majority had delegated its power to the government representing it. This means that the populist government tried to interpret the result of the elections, which made the people present as a unity.

The Orbán government, having overthrown its predecessor as a result of a popular referendum in 2010, also made it more difficult to initiate a valid referendum. While the previous law required only 25 percent of the voters to cast a vote, the new law requires at least 50 percent of those eligible to vote to take part, otherwise the referendum is invalid.9  The ambivalence of populists towards representation and referendums in government and in opposition applies to their attitude regarding established institutions. While they readily attack the ‘establishment’ while in opposition, they strongly protect their own governmental institutions when in power. The situation is different with transnational institutions, like the EU, which are also attacked by populist governments as threats to their countries’ sovereignty.

The third element of populist constitutional theory, according to Corrias, is constitutional identity as collective selfhood. Here populists have a tendency to reject what they perceive as threats to the constitutional identity of the people by immigrants, refugees and minorities.10

The populist critique of constitutionalism

Paul Blokker understands popular constitutionalism as a form of constitutional critique and ‘counter-constitutionalism’, rather than an outright denial of liberal constitutionalism and the rule of law. Echoing Ernesto Laclau’s argument that the rise of populism is a consequence of the denigration of the masses11, Blokker also claims that the populist critique on liberal constitutionalism invokes relevant critical dimensions of the current democratic malaise, and populists claim to represent and give voice to the ‘pure’ people.12 According to Blokker, this critical stance towards liberal constitutionalism is 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. As is well-known, the constitution is in Schmitt’s view an expression of ‘the substantial homogeneity of the identity and the will of the people’, and a guarantee of the state’s existence, and ultimately any constitutional arrangement is grounded in or originates from an arbitrary act of political power. In other words, in Schmitt’s view, the basis of the constitution is ‘a political decision concerning the type and form of its own being’ made by the people as a ‘political unity’ based on their own free will. This political will ‘remains alongside and above the constitution.’13 Schmitt also played off the people as an existential reality against merely liberal representation of voters in parliament.

According to Mudde and Kaltwasser, populists critique elitist, judicial constitutionalism, and endorse the participation of ordinary citizens in constitutional politics.14 In a more recent work they argue that populism, by holding that nothing should constrain the ‘the will of the (pure) people’, is democratic15, but at odds with liberal democracy in rejecting the notion of pluralism.16 Although they admit that populism can develop into illiberal democracy, they also claim that it isn’t populism but rather nativism that is the basis of exclusion of others not included in the ‘real people.’17 This understanding of populism presupposes that democracy can be liberal or illiberal (electoral), the latter having a number of institutional deficits that hinder respect for the rule of law and exhibit weaknesses in terms of independent institutions seeking the protection of fundamental rights. 18 Carl Schmitt even went as far as to claim the incompatibility of liberalism and democracy, arguing that plebiscitary democracy based on the homogeneity of the nation is the only true form of democracy.

There is no such thing as ‘populist constitutionalism’

Given that populism rejects the main tenets of constitutionalism, the term ‘populist constitutionalism’ seems to be an oxymoron.

By contrast, in my view liberalism is not merely a limit of the public power of the majority, but also a constitutive precondition of democracy providing rule of law, checks and balances, and guaranteed fundamental rights. In this respect, there is no such thing as an ‘illiberal democracy’19 or for that matter anti-liberal or non-liberal democracy. Those who perceive democracy as liberal by definition also claim that populism is inherently hostile to values associated with constitutionalism: checks and balances, understood as constraints on the will of the majority, fundamental rights, and protections for minorities. Those sceptical about populist constitutionalism have a different understanding of populism, namely as a distinctly moral way to imagine the political world, which necessarily involves a claim to exclusive moral representation. This means, as Jan-Werner Müller argues, that this moralistic imagination of politics is not just anti-elitist, but it is also principally anti-pluralist.20 But, as Müller claims further, since democracy, which must be pluralist, is an institutionalized uncertainty, populists destroy democracy itself by promising certainty through the use of their own constitutions to make their image of the people and what they regard as the morally right policies as certain as possible.21 Another consequence of this exclusionary moral and ideological version of populism is that it rests on an essentialist concept of citizenship, which classifies as citizens only those who are members of the political community by virtue of their political and social views or their ideological commitments, as opposed to the traditional pluralist liberal concept of citizenship that rests on the place of birth, residence or citizenship of the parents.22

In my view, given that populist conceptions of the constitution reject the imposition of limits on the unity of power, adherence to the rule of law, and the protection of fundamental rights, i.e. the main components of constitutionalism, the term ‘populist constitutionalism’ seems to be an oxymoron. The same applies to ’authoritarian’ or ’illiberal’ constitutionalism. If the main characteristic of constitutionalism is the legally limited power of the government, neither autoritarian nor illiberal polities can fulfil the requirements of constitutionalism.23 As Mattias Kumm puts it, Carl Schmitt’s interpretation of democracy inspired by Rousseau and used by authotarian populist nationalists as ’illiberal democracy’ has become an anti-constitutional topos. Consequently, I equate constitutionalism with liberal democratic constitutionalism.24 This does not mean, however, that constitutions cannot be illiberal or authoritarian. Therefore it is legitimate to talk about constitutions in authoritarian regimes, as Tom Ginsburg and Alberto Simpler do in their book26, but I do not agree with the use of the term ’authoritarian constitutionalism’27 or ’constitutional authoritarianism.’28 Moreover, the constitutions in the Communist countries, both current theocratic and communitarian constitutions, are considered illiberal.29 Theocratic constitutions, in contrast to modern constitutionalism, do not reject secular authority.30 In the communitarian constitutions, like the ones in South-Korea, Singapore and Taiwan, the well-being of the nation, the community and society receive utilitarian priority rather than the individual freedom principle of liberalism. But in these illiberal polities, like in Hungary, there is no constitutionalism.

1. See a similar description of the new East-Central European populism in a recent paper of Bojan Bugaric. (Bugaric, 2017). Bugaric claims that this anti-liberal populism is not necessarily anti-democratic. In this article I’ll argue that it is.
2. C. Mudde and C. R. Kaltwasser, Populism: A Very Short Introduction. Oxford: Oxford University Press, 2017. 6.
3. C. Pinelli, ‘The Populist Challenge to Constitutional Democracy.” 7 European Constitutional Law Review, 2016. 5-16, at 6.
4. See these ‘essential characteristics’ of constitutional democracy in (Rosenfeld, 2001, 1307).
5.L. Corrias, ‘Populism in Constitutional Key: Constituent Power, Popular Power, Popular Sovereignty and Constitutional Identity’, European Constitutional Law Review, 2016. 12.
6. Ibid, 16.
7. Ibid, 16.
8. Ibid, 18-19.
9. Pinelli, 11.
10. It is the irony of fate that due to the tightened conditions the only referendum the Orbán government has initiated, against the EU’s migration policy, failed. On 2 October 2016, Hungarian voters went to the polls to answer one referendum question: “Do you want to allow the European Union to mandate the relocation of non-Hungarian citizens to Hungary without the approval of the National Assembly?”. Although 92 % of those who casted votes and 98 of all the valid votes agreed with the government, answering ‘no’ (6 % were spoiled ballots), the referendum was invalid because the turnout was only around 40 percent, instead of the required 50 percent.
11. Corrias, 13
12. E. Laclau, On Populist Reason. Verso, 2005.
13. P. Blokker, ‘Populist Constitutionalism’. in Routledge Handbook on Global Populism. Routledge. Forthcoming.
14. See C. Schmitt, Constitutional Theory. Duke University Press.2008, 125-126. This idea is also shared by a part of the, otherwise not populist, French constitutional doctrine, influenced by Rousseau’s general will. This is the reason that the representatives of this doctrine hold that during a constitutional transition a referendum is sufficient to legitimate a new constitution. See the French Constitutional Council’s approval of De Gaulle’s 1962 amendment to the 1958 Constitution, ignoring the Constitution’s amendment provisions. Thanks to Théo Fournier, who called my attention to this.
15. C. Mudde & C. R. Kaltwasser, ‘Exclusionary vs. Inclusionary Populism: Comparing Contemporary Europe and Latin America’, Government and Opposition, 2013. 147-174.
16. Also Ruth Gavison calls to celebrate populism as the „core of democracy rather than condemn it as anti-democratic”. She refers to Kazin’s book as a persuasive analysis of populism as an authentic political movement. (Gavison, 2017)
17. Mudde & Kaltwasser, 2017, 81
18. Similarly, Tjitske Akkerman argues that not populism, but authoritarian nationalism, is the real threat to democracy. See T. Akkerman, ‘Authoritarian Nationalism, Not Populism Is Real Threat to Democracy’ Social Euope. 9 August, 2017.
19. Ibid, 88.
20. J-W. Müller, ‘The Problem with ‘Iliiberal Democracy’.’ Project Syndicate. 21 January. 2016.
21. J-W. Müller, What Is Populism? Philadelphia: University of Pennsylvania Press, 2016.
22. Müller distinguishes the deeply problematic populist constitutionalism from a legitimate form of popular constitutionalism. Regarding the distinction he refers to C. Brettschneider, ‘Popular Constitutionalism contra populism’. Constitutional Commentary, 2015
23. Alon Harel argues that in Israel, populism rests on the essentialist characterization of citizenship. See Harel, 2017.
24. See e.g. the following definition of constitutionalism in the Stanford Encyclopedia of Philosophy: ”Constitutionalism is the idea … that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.” (https://plato.stanford.edu/entries/constitutionalism/). In the legal scholarship, Stephen Holmes asserts that the minimalist vision of constitutionalism is achieved if the following requirements are met: the constitution emanates from a political decision and is a set of legal norms; the purpose is ‘to regulate the establishment and the exercise of public power’ ; comprehensive regulation ;  constitutional is higher law ; constitutional law finds its origin in the people. (Holmes, 2012)
25. In contrast, others also regard other models of constitutionalism, in which the government, although committed to acting under a constitution, is not committed to pursuing liberal democratic values. See for instance (Tushnet 2016). Similarly, Gila Stopler defines the state of the current Israeli constitutional system as ‘semi-liberal constitutionalism’. Cf. (Stopler 2017).
26. T. Ginsburg & A. Simpser, Constitutions in Authoritarian Regimes. Cambridge University Press, 2014.
27. T. Ginsburg & A. Simpser, Constitutions in Authoritarian Regimes. Cambridge University Press, 2014.
28. S. Levitsky & L. A. Way, ‘The Rise of Competitive Authoritarianism’ 13 Journal of Democracy, 2. 2002.
29. L. Thio, (2012). Constitutionalism in Illiberal Polities. In M. Rosenfeld, & A. Sajó, Oxford Handbook of Comparative Constitutional Law, Oxford University Press, 2012. 133-152. Contrary to my understanding, Thio also talks about ’constiutionalism’ in illiberal polities.
30. There are two subcategories distinguished here: the Iranian, where Islam is granted an authoritative central role within the bounds of a constitution; and the Saudi-Arabian where Islam is present, without the formal authority of modern constitutionalism.