Are Populists Friends or Foes of Constitutionalism? - Foundation for ...

The Social andPoliticalFoundations ofConstitutionsAre Populists Friendsor Foes ofConstitutionalism?Policy BriefCas MuddeThe Foundation for Law, Justice and Societywww.fljs.orgin association with the Centre for Socio-Legal Studiesand Wolfson College, University of Oxford

The Foundation for Law, Justice and SocietyThe Social and Political Foundations of ConstitutionsConstitutions take various forms in different societies, but essentially determine how policyissues, often of fundamental social importance, are to be decided and implemented.Constitutions and constitutionalism are usually studied either doctrinally, as the source offundamental legal doctrine, or conceptually, as the subject of philosophical methods ofanalysis. The approach of this programme offers a third way: the study of constitutions andconstitutionalism in their social context, emphasizing their social character and role, theirsocial goals, and their links to other parts of society, especially economic and politicalaspects.Drawing on the research and literature of politics, economics, and sociology, theprogramme examines the concept and practice of representation, the legislative processand the character of modern administrative government, and the role of the judiciary inshaping constitutional instruments such as bills of rights.© The Foundation for Law, Justice and Society 2013

Executive Summaryn Populism is best defined as a thin-centred ideology that considers society to beultimately separated into two homogeneous and antagonistic groups, ‘the pure people’versus ‘the corrupt elite’, and which argues that politics should be an expression of thevolonté générale (general will) of the people.n While populism is essentially democratic, it is not liberal democratic. Principally,populism is a form of extreme majoritarianism. Given that constitutionalism limits bothpopular sovereignty and majority rule, populism is theoretically opposed toconstitutionalism.n In practice, however, populists take an opportunistic approach toward constitutions.While populists-in-opposition cling to the constitutional protection of their minorityrights, they reject those of other minorities on the basis of the democratic argument ofmajority rule.n Populists-in-power have done the same, but, when able, have (significantly) reformedthe constitution, most often strengthening majoritarian institutions (like the executiveand referendums) and marginalizing counterbalancing powers and extra-politicalinstitutions.n The argument that populism is anti-democratic is unconvincing, and might ultimatelyreinforce the populist position. Rather, liberal democrats should emphasize the illiberalaspects of populism, while emphasizing the importance of liberal aspects of thepolitical culture and system. In essence, they have to explain that minority rightsbenefit not just the minorities, but also the majority — if only because at one time theycould become a minority.n Opponents of populism should realize that for most (potential) supporters, theyconstitute a part of the corrupt elite. Consequently, vague and moralizingcondemnations of populists, particularly when coordinated between differentmainstream camps, will merely serve to confirm the populist message. Instead,populists should be confronted on the terms of the non-populists, based on evidenceand rational argument, not hyperbole and moral condemnation.ARE POPULISTS FRIENDS OR FOES OF CONSTITUTIONALISM? . 1

Are Populists Friends or Foes ofConstitutionalism?IntroductionPopulism is fast becoming the favouritebogeyman of the Western elite of the still earlytwenty-first century. In an interview withFrankfurter Allgemeine Zeitung in 2010, in the midstof the worst economic crisis in postwar Europe,European Union (EU) President Herman VanRompuy called populism ‘the greatest danger’ inEurope. This warning was recently echoed in theNew York Times (15 October 2013), in both aninterview with Italian Prime Minister Enrico Lettaand a strong editorial on ‘Europe’s PopulistBacklash’. But the ‘threat’ of populism is not limitedto Europe. US administrations have warned of thethreat of the left-wing populist regimes of HugoChávez and Evo Morales in Latin America, whilethe right-wing ‘populist anger’ of the Tea Party hasheld the world under its spell in the recent USgovernment shutdown. In short, populism is a(near) global menace.But while there is an almost universal consensuson the idea that populism is a major threat todemocracy, the exact nature of that alleged threatoften remains vague. This is in part a consequenceof the notoriously slippery concept of populism,which is broadly used, but has many differentmeanings in the political and public debate. Formany it is nothing more than the opportunisticdiscourse of demagogues, while others see it as amodern form of political extremism, rigid anddeeply ideological. This policy brief will reflect onthe phenomenon of populism, provide a cleardefinition, and discuss its relationship withdemocracy in general, and constitutionalism inparticular.The aim is to provide a clearer understanding ofboth populism and its alleged threat todemocracy. This is of crucial importance for tworelated reasons. First, populism uses a stronglydemocratic discourse in which ‘the elite’ are attackedas being undemocratic. Hence, the support ofpopulist parties is based on support for a (genuine)democracy. Second, given that policymakers andpublic intellectuals are generally perceived as beingpart of ‘the elite’ by populists and their supporters,they cannot simply assume to have the moral highground. Consequently, vague warnings andmoralistic condemnations are not going to work on(potential) supporters of populist politicians. Theywill have to be convinced by clear arguments whichdemonstrate that, whilst most populists might askthe right questions about their imperfect democraticsystems, they often provide the wrong answers.What is populism?The term populism is often ascribed to politicians,but seldom claimed by them. This is a reflection ofthe general negative connotation of the term, whichhas made it a powerful weapon in the politicaldomain. The label ‘populist’ is often used to excludegroups from the political mainstream: against thedemocratic and responsible ‘us’ stands theundemocratic and irresponsible populist ‘them’. Butwhat is it that makes certain groups populist? Weknow it is something political, but is it a politicalideology, movement, strategy, or style?Three meanings of populism are most dominant inthe public debate and all three are too vague andtoo broad. Firstly, populism is described as a form ofirresponsible redistributive politics, in which leaders‘buy off’ their supporters through state programmes,leading to massive budget deficits and economicmismanagement. Secondly, populism is used todescribe a certain leadership style, through whichcharismatic leaders mobilize and govern by directlyappealing to the people, without the mediation ofpolitical institutions like parties or parliaments.Thirdly, populism is often defined primarily as aspecific communication style that is overly2 . ARE POPULISTS FRIENDS OR FOES OF CONSTITUTIONALISM?

emotional and simplistic, pandering to ‘the commonman’ by using his language and symbols. While oneor more of these features indeed apply to mostpopulist actors, they do not set them apart fromnon-populists.In recent years, an increasing number of scholarshave come to define populism as an ideology ordiscourse. While the various details of the definitionsvary, almost all definitions share at least twocomponents: (1) a fundamental opposition between‘the people’ and ‘the elite’, and (2) populism is on theside of ‘the people’. Many definitions also stress theimportance of ‘common sense’ or the ‘general will’ ofthe people, explicitly or implicitly relating the latterto a Rousseauian understanding of democracy. Inline with this growing consensus within the field, Ipropose the following minimum definition: populismis a thin-centred ideology that considers society to beultimately separated into two homogeneous andantagonistic groups, ‘the pure people’ versus ‘thecorrupt elite’, and which argues that politics should bean expression of the volonté générale (general will) ofthe people. 1 This definition is broad enough toinclude all major populist phenomena, across regionand time, but narrow enough to exclude many other(non-populist) phenomena. Most importantly,populism so defined has at least two fundamentaloppositions: elitism and pluralism. Consequently, itexcludes most political actors and ideologies thatdominated politics before the rise of democracy inthe late nineteenth century (e.g., monarchism,theocracy, conservatism) as well as those that havedominated democratic societies since then (e.g.,Christian democracy, liberalism, and socialdemocracy).Populism and democracyIn much of the public debate, populism is seen as athreat for democracy. This is in line with mostscholarship on the topic, which had describedpopulism as a ‘democratic disorder’, a ‘pathology ofdemocracy’, and a ‘paranoid style of politics’. Aminority sees populism as democratic, and someeven as the ultimate form of democracy. For all thepublic debate, the actual relationship betweenpopulism and democracy is, both in theory andpractice, highly ambiguous and complex. 2Theoretically, populism is not anti-democratic; itaccepts both popular sovereignty and majority rule.It is, however, anti-liberal democratic. The fact thatmany authors use democracy as a shorthand forliberal democracy might explain the predominanceof negative evaluations of populism in the literature.Populism is essentially anti–liberal democratic,because it opposes both the principle of pluralismand the practice of compromise. It is a monistideology, considering both ‘the people’ and the elite’as homogeneous and undivided. Thus, pluralism isfundamentally opposed, and minority rights areperceived as ‘special interests’ of ‘the elite’, which (inits zero-sum game world) come at the expense of‘the people’. Populism therefore also rejects thepolitics of compromise. It argues that politics canand should benefit all people. After all, ‘the people’are homogeneous and therefore have similarinterests and norms. Moreover, being essentiallybased upon a moral divide, for populism,compromise means that ‘the pure’ are soiled by ‘thecorrupt’, which leads to the corrupting of ‘the pure’.Consequently, populism supports an extremistmajoritarianism, even if the interests and norms ofthe majority (i.e., the people) are often constructedby the populist leader. However, as the populistleader is part of the (homogeneous) people, unlikethe leaders of the other parties (who are part of theelite), his interests and norms are the same as thoseof the people.Populism puts its finger on the Achilles heel of liberaldemocracy, that is, the inherent tension betweenmajority rule and minority rights. While democracy isbased on popular sovereignty and majority rule,liberal democracy emphasizes restrictions on statepower and the constitutional protection of minorityrights. Both liberal aspects can limit popularsovereignty and majority rule. Populists squarelycome out on the side of democracy, which theyinterpret as ‘the power of the people and only thepower of the people.’ 3 Consequently, populismopposes any institutions or procedures that impedethe direct and full expression of the people’s voice.In practice, populists have both strengthened thedemocratic system in their country (e.g., Morales inBolivia), and destroyed it (e.g., Fujimori in Peru). Inline with the theoretical relationship, populists tendto mainly support and strengthen democraticARE POPULISTS FRIENDS OR FOES OF CONSTITUTIONALISM? . 3

aspects of popular sovereignty and majority rule,among others by including previously excluded ormarginalized groups and supporting or usingplebiscitarian political instruments like referendumsand people initiatives. At the same time, they tend toundermine liberal features like minority protectionsand counterbalancing powers of the executive,which are accused of impeding the will of themajority (or ‘general will’). But while they might havepushed for an extreme form of majority rule centredon a dominant executive, populists rarely sought theend to democracy as such (i.e., popular sovereigntyand majority rule).Theory: Populism and constitutionalismIn contrast to populism and (liberal) democracy, littleattention has been paid to the theoreticalrelationship between populism andconstitutionalism. Most authors emphasize thatconstitutionalism centres on the idea of legalconstraint of coercive state power. The idea that(coercive) state power should be limited is afundamental element of liberal democracy, which iswhy several authors prefer the term constitutionaldemocracy. In essence, constitutionalism holds thatconstitutions are the ultimate formal source of stateauthority.It should come as no surprise that populism has aproblematic relationship with constitutionalism.Populism deems that nothing supersedes thegeneral will of the people and, consequently, no oneshould interfere with it. In this, populism subscribesto the classical conception of democracy, in which‘the laws of the republic express the unrestricted willof the unified people.’ 4 Essentially a form of extrememajoritarianism, populism accepts no limitations topopular sovereignty and majority rule, as itfundamentally rejects the existence of (legitimate)minorities.For populism everything is political, at leastpotentially. Nothing should be above the will of thepeople: not economics, not individuals, and not laws.Hence, populism fundamentally opposes theessence of constitutionalism, i.e., the constraint ofstate power. The idea that certain things are nonpolitical,in the sense that they are outside of thescope of majority rule, is alien to populism. In short,populism takes democracy to the extreme, or bringsit back to its classical conception, by arguing that thepeople can decide on everything by majority rule.Practice: Populists and constitutionsWhile the relationship between populism andconstitutionalism is fairly clear in theory, populistshave taken a broad variety of approaches toconstitutions in practice. In general, populists-inoppositionapproach constitutions opportunistically;when the constitution supports their point, they willrevere it, but if it opposes their idea, they will denyits importance. Similarly, their position towardsconstitutional judges is purely opportunistic.Depending upon the usefulness of their ruling, ajudge is branded as one of ‘the people’ or a memberof ‘the elite’. Populists-in-power are similarlyopportunistic, clinging to the ‘sacred’ constitutionwhenever it serves their purpose, and criticizing oreven changing it when it does not.The opportunistic position of populists-inoppositiontoward constitutions is nowhere asvisible as in the United States, where theConstitution is both an instrument and a symbol.This is perfectly exemplified by the Tea Party, whichpresents itself as the true defender of the USConstitution. For example, the Declaration of TeaParty Independence, one of the few documents thatvirtually all Tea Party groups, Astroturf and grassroots, can agree on, identifies just three concrete‘sound policies’ that have made the United States ‘aland of prosperity and liberty’: fiscal responsibility,constitutionally limited government, and a belief inthe free market. More concretely, Tea Partiers believethat ‘The Constitution can solve all of the problemsplaguing our nation today.’ Tea Party groupsadvocate an originalist interpretation, which takesthe Constitution literally, that is, as the Framersintended.However, whenever the Constitution stands in theway of their desired goals, they have no problemwith calling for changes to that same Constitution.4 . ARE POPULISTS FRIENDS OR FOES OF CONSTITUTIONALISM?

Take Senator Mike Lee (R-Utah), one of the mainvoices of the recent government shutdown andattempt by Tea Partiers to force a governmentdefault, who promised voters at a rally in 2010: ‘Ihereby pledge to you that I will not vote for a singlebill that I can’t justify by the text and originalunderstanding of the Constitution.’ Yet, he has alsopublically criticized the Seventeenth Amendmentand called for a change to the FourteenthAmendment. Asked how to square these positions,Lee said: ‘The Constitution was made to be amendedfrom time to time. Sometimes we have to change itto make it more true to the American dream’ (CNN, 7September 2010).Similar opportunistic positioning can be foundamong populists in other countries. The Belgianpopulist radical Right party Flemish Bloc (nowFlemish Interest, VB) explicitly defended‘constitutional democracy’ in its 2003 partyprogramme, arguing that ‘Flanders should not onlybe a democracy, it should also be a state of law. Thismeans that those in power are subject to the law (inthe broadest sense) and that they cannot takedecisions that go against the law and theConstitution.’ However, its passionate defence ofconstitutionalism seemed mainly self-serving, part ofan (unsuccessful) attempt to prevent its convictionon the basis of the anti-racism law, as the VB hasconsistently rejected similar constitutionalprotections for ‘Muslim fundamentalists’.Populists-in-power are as opportunistic towardconstitutions as populists-in-opposition are, andthose in power have more opportunities tochallenge the constitution — as well as the principledefenders of the constitution, the judges. Given thatfew populists ever have a constitutional majority inparliament, changing the constitution is often not anoption. Instead, they ignore constitutional provisionsand try to either change or intimidate the judges onthe constitutional court. However, constitutionalcourts have frequently proved much moreindependent and powerful than populists hadexpected. In fact, in some cases judges were moreformidable adversaries than the oppositionpoliticians (for example, in the cases of formerItalian Prime Minister Silvio Berlusconi and SlovakPremier Vladimír Mečiar).If they do have the political power, populists willuse it to change the constitution. This has beenmost common in Latin America, where populistpresidents are often political outsiders, who cometo power rather suddenly and without wellorganizedpolitical organizations. Lacking politicalsupporters in other branches of government, theirefforts are often frustrated by the nationallegislature, subnational bodies, extra-politicalagencies, and the constitutional court. The quickestway to marginalize these oppositional forces is bydirectly appealing to the people in a constitutionalreferendum. 5 Left-wing populist presidents inBolivia, Ecuador, and Venezuela have successfullyargued that the old constitution protected thepower of the corrupt (former) elite and obstructedthe real rule of the people. The new constitutions,established through so-called ‘constituentassemblies,’ centralized political power in the officeof the president and created new bodies thatundermined the power of the existingcountervailing powers, such as the nationallegislature and the constitutional court.The only European example of constitutionalreform by populists-in-power directly is an extremecase: contemporary Hungary under the HungarianCivic Party (Fidesz) of Prime Minister Viktor Orbán.Since having come to power for the second time, in2010, Orbán has unleashed a level of majoritarianrule previously unseen in postwar Europe. Themain target was the Constitution, attacked as aremnant of Hungary’s Communist past. Helped bya parliamentary supermajority and some strategicnew appointments, Orbán steamrolled a newConstitution through parliament. While DeputyPrime Minister Tibor Navracsics heralded the newConstitution as ‘a foundation for the spiritual andintellectual renewal of Hungary’ (Wall Street Journal,19 April 2011), most national and internationalobservers do not share his enthusiasm. In fact,experts agree that the new Constitution hasARE POPULISTS FRIENDS OR FOES OF CONSTITUTIONALISM? . 5

significantly weakened alternative centres of powerand entrenched Fidesz into power well beyond itscurrent legislative term.ConclusionI have argued that populism is best defined as a thincentredideology that considers society to beultimately separated into two homogeneous andantagonistic groups, ‘the pure people’ versus ‘thecorrupt elite’, and which argues that politics should bean expression of the volonté générale (general will) ofthe people. This definition is broad enough to includemost phenomena generally termed populist, yetprecise enough to exclude the vast majority ofpolitical phenomena that are normally not associatedwith the term. Populism is a phenomenon closelyassociated with the rise of mass democracy, datingback to the late nineteenth century, and comes inmany guises.While populism is essentially democratic, it is notliberal democratic. In fact, with regard to the inherenttension within liberal democracy between democraticmajority rule and liberal minority rights, populism issquarely with the former. Essentially, populism is aform of extreme majoritarianism. Given thatconstitutionalism limits both popular sovereignty andmajority rule, populism is fundamentally opposed toconstitutionalism — despite recent attempts tomerge the two into a doctrine of populistconstitutionalism. In practice, populists take anopportunistic approach toward constitutions. Whilepopulists-in-opposition cling to the constitutionalprotection of their minority rights, they reject those ofother minorities on the basis of the democraticargument of majority rule. Populists-in-power havedone the same, but, when able, have (significantly)reformed the constitution, most often strengtheningmajoritarian institutions (like the executive andreferendums) and marginalizing counterbalancingpowers and extra-political institutions.Given the complex relationship between populismand democracy, it is crucial for opponents ofpopulism to criticize the actual weak points ofpopulism. The argument that populism is antidemocraticis unconvincing, and might ultimatelyreinforce the populist position. After all, it is thepopulists who defend majority rule much moreradically than liberal democrats. Rather, liberaldemocrats have to emphasize the importance ofliberal aspects of the political culture and system —such as freedom of religion and speech;independence of the judiciary; institutional checksand balances. In essence, they have to explain thatminority rights benefit not just the minorities, butalso the majority — if only because at one time theycould become a minority.Moreover, opponents of populism should realize thatfor most of the (potential) supporters of populism,mainstream voices in the media and politics are partof the corrupt elite. Not only do they no longer holdthe moral high ground, they are instinctivelydistrusted. Consequently, vague and moralisticcondemnations of populism, particularly whencoordinated between different mainstream camps,will merely serve to confirm the populist message.This coordinated effort is cited by populists as ‘proof’that the elite is homogeneous, merely faking internaldivision for electoral gain. This is used to bolster thepopulists’ own claims to being in the right andwielding influence, against which, the whole of theelite must unite to oppose them. More importantly,they strengthen the populist argument that thepolitical is essentially moral, which undermines thepossibilities for compromise. In other words,populists should be confronted on the terms of thenon-populist, but based on evidence and rationalarguments, rather than hyperbole and moralcondemnation.6 . ARE POPULISTS FRIENDS OR FOES OF CONSTITUTIONALISM?

Notes1 See Cas Mudde, ‘The Populist Zeitgeist’, Government & Opposition, Vol. 39/3 (2004), 542-63.2 For a collection of case studies on the relationship between populism and democracy, see Cas Mudde and Cristóbal Rovira Kaltwasser(eds.), Populism in Europe and the Americas. Threat or Corrective for Democracy? Cambridge: Cambridge University Press, 2012.3 On populism and the tension of liberal democracy, see Yves Mény and Yves Surel, ‘The Constitutive Ambiguity of Populism’, in Yves Ményand Yves Surel (eds.), Democracies and the Populist Challenge. Basingstoke: Palgrave, 2002, pp. 1-21, at 9.4 Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Paradoxical Principles?’, Political Theory, 29/6 (2001), 766-81, at 766.5 At the same time, populists have often introduced or extended direct democracy through constitutional reform.ARE POPULISTS FRIENDS OR FOES OF CONSTITUTIONALISM? . 7

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The FoundationThe mission of the Foundation is to study, reflect on,and promote an understanding of the role that lawplays in society. This is achieved by identifying andanalysing issues of contemporary interest andimportance. In doing so, it draws on the work ofscholars and researchers, and aims to make its workeasily accessible to practitioners and professionals,whether in government, business, or the law.Cas Mudde is an Assistant Professor in theDepartment of International Affairs at the Universityof Georgia in Athens (USA). He is an internationallyrecognized expert on extremism and democracy inWestern democracies, focusing particularly onpopulism and the far Right. Among his publicationsare The Ideology of the Extreme Right (ManchesterUniversity Press, 2000), Populist Radical Right Partiesin Europe (Cambridge University Press, 2007), and(with Cristóbal Rovira Kaltwasser) Populism in Europeand the Americas. Threat or Corrective for Democracy?(Cambridge University Press, 2012). He has recentlystarted a new project on the radical environmentalistand animal rights movement and state repression inWestern democracies.For further information please visitour website at www.fljs.orgor contact us at:The Foundation for Law, Justice and SocietyWolfson CollegeLinton RoadOxford OX2 6UDT . +44 (0)1865 284433F . +44 (0)1865 284434E . info@fljs.orgW . www.fljs.orgwww.fljs.org