Mark Tushnet

Bojan Bugaric

Self-described populist leaders around the world are dismantling their nation's constitutions. This has led to a widespread view that populism as such is inconsistent with constitutionalism. This book proposes that some forms of populism are inconsistent with constitutionalism, while others aren't. Context and detail matter. Power to the People offers a thin definition of constitutionalism that people from the progressive left to the conservative right should be able to agree on even if they would supplement the thin definition within other more partisan ideas. This is followed by a similarly basic definition of populism. Comparing the two, this book argues that one facet of populism -its suspicion of institutions that are strongly entrenched against change by political majorities-is sometimes inconsistent with constitutionalism's thinly understood definition. The book provides a series of case studies, some organized by nation, others by topic, to identify, more precisely, when and how populist programs are inconsistent with constitutionalism-and, importantly, when and how they are not. Concluding with a discussion of the possibilities for a deeper, populist democracy, the book examines recent challenges to the idea that democracy is a good form of government by exploring possibilities for new, albeit revisable, institutions that can determine and implement a majority's views without always threatening constitutionalism.

Constitutionalism in the Age of Populism

Power to the People

William Nelson Cromwell Professor of Law Emeritus Mark Tushnet

"What is constitutionalism? The only sensible follow-up is, Why do you want to know? Scores of books have been written offering scores of descriptions of constitutionalism: descriptions of the real world of constitutions and prescriptions for the authors' "best" account of constitutionalism as a system of values. Each author has in mind some purpose for which she is providing the description. As should be clear already, our purpose is to provide some leverage on the analysis of contemporary populism. That purpose sets some important guidelines for our answer to the question posed in the Chapter's title. Because we are interested in contemporary populism, we are interested in contemporary constitutionalism. We aren't going to spend time on describing "Athenian" constitutionalism, or "medieval" constitutionalism, although for other purposes examining those and many other forms of constitutionalism would be quite valuable. More important, we aren't going to discuss constitutionalism as what philosophers call a "regulative ideal" - a reasonably comprehensive set of values that we could use as a benchmark against which we could measure actual constitutional performance. Consider a relatively simple question: Are laws against hate speech consistent with constitutionalism as a regulative ideal? On some accounts, clearly no - such laws violate ideals of freedom of expression. On other accounts, clearly yes - such laws are required to ensure that everyone can participate in civic life on an equal basis. Proponents of each view will of course provide elaborate arguments rooted in stories about individual autonomy, democratic self-governance, and the like to justify their particular view of constitutionalism as a regulative ideal. Precisely because each view is reasonable - as are many others - we think it unhelpful to rely on "regulative ideal" versions of constitutionalism in our inquiry into the relation between contemporary constitutionalism and contemporary populism"--

Bojan Bugaric

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