Populism and Constitutionalism

Abstract

This chapter considers the uneasy relationship of “populism and constitutionalism.” After defining constitutionalism, it considers the antagonism of populist logic to “liberal constitutionalism” and asks whether this means to constitutionalism as such. While on the level of logic the answer here is affirmative, we raise the empirical question of the interest of many populists in constitutions. This interest is manifested in efforts of constitutional replacement, amendment, and court packing projects, promoted by populist movements and parties, and undertaken by populists “in” government, in the process of becoming “the” government. The chapter considers four main theoretical attempts to explain the empirically obvious interest of populists in the constitution: political constitutionalism as the norm of populist attacks on liberal versions (Tushnet, Bugaric), instrumental majoritarian constitutionalism linked to “legal resentment” (Blokker), abusive constitutionalism (Landau and Dixon), and the constitutionalism of the constituent power (Colon Rios and Corias).

Beyond the Myth of Legality? Framing Effects and Public Reactions to High Court Decisions in Europe

“…On the other hand, the fact that framing matters, even if mostly for “winners,” calls attention to how media and elites aligned with the “losing” side may undermine support for high courts by resorting to a partisan rhetoric about judicial decision-making. In the current context of growing illiberal threats to the role of courts (Arato & Cohen, 2021; Bugarič & Ginsburg, 2016), one of the strategies employed by populist leaders to diminish resistance to court-packing and institutional changes designed to neuter high courts is to operate at the symbolic level, portraying themselves as victims of partisan and politicized judicial institutions (de Ghantuz Cubbe, 2022, pp. 54–55).…”

Ecumenical critical theory, pluralism and developmental trends

“…Critical theory is under the pressure of centrifugal forces and tends to find specific issues and addressees, when it does. But this sort of problem is not absolute – in fact all depends, in a dialectical relation on how coalitions can be built, beyond, though by no means discarding, particularisms, towards the generalisation of equal freedom (equal power) (Arato and Cohen, 2021: ch. 5).…”

“… 12. For instance, Arnason (1971), for Frankfurt-connected critical theory; more recently and more plurally, but without much success, Bohmann and Sörensen (2019). See also Arato and Cohen (2021) – though ‘populism’ is, to say the least, a fraught concept – and Fraser (2022) – despite my criticisms above. …”

The rule of unreason: Analyzing (anti‐)democratic regression

“…In this regard, the rhetoric may also be brute, because the quality of the justification of a claim is not measured by the elegance of the language used; that does not make those who revolt in such a manner a “mob” ( Pöbel ) 9 . However, a right‐wing populist authoritarian criticism of supposedly undemocratic mechanisms of contemporary societies, which claims to represent the “true people” who are “finally” making themselves heard via Trump or the German AfD, does not make such criticism democratic, because in doing so a problematic, criticized kind of “representation” is replaced by one that is essentially anti‐democratic (see especially Arato & Cohen, 2021; Urbinati, 2019). To speak of democratic criticism in that case is a fallacy—such as the one that overlooks the fact that many of those who complained about democratic deficits after the German refugee situation in 2015 would have been delighted if “non‐majoritarian institutions” 10 had closed the borders.…”