Populist Challenges to Constitutional Interpretation in Europe and Beyond

I: Theoretical implicationsPopulism and populist constitutionalismIntroductionThe impalpable concept of populismConceptualizing populismHistorical backgroundThe dimensions of populismTypes of populismThe mysterious notion of populist constitutionalism‘Authoritarian’, ‘illiberal’, or ‘populist’ constitutionalism?Populist constitutionalism: an oxymoron, or a special kind of constitutional system?Defining populist constitutionalism: positive and negative criteriaNegative criteria of populist constitutionalismPositive criteria of populist constitutionalismThe art of constitutional interpretationDefining constitutional interpretationClassifying interpretive theoriesMonist and pluralistic theoriesOther classifications of interpretive theoriesMain interpretive theoriesInterpretive modalitiesSubstantive interpretationOther interpretive aids: judicial doctrines, constructions, standards, tests and legal maximsConclusionAn ‘Instrument of Government’ or ‘Instrument of Courts’?: The impact of political systems on constitutional interpretation and the case of populismIntroductionDo political systems generate their own rules of constitutional interpretation?HypothesesWritten rules on constitutional interpretation – in the liberal world and beyondPopulist constitutionalism and constitutional interpretation – instruments and limitsEscalating or de-escalating populism: the role of courts in constitutional interpretationConclusionsCan there be autochthonous methods of constitutional interpretation?IntroductionSubstantive constitutional provisionsInterpretations of substantive provisionsMethods of constitutional interpretationConclusionII: Constitutional interpretation and populism in EuropeFormalism and judicial self-restraint as tools against populism?: Considerations regarding recent developments of the Austrian Constitutional CourtIntroductionPopulism in AustriaPopulism – what kind of populism?The Austrian Freedom Party and the rise of populism in AustriaJörg Haider and the Austrian Freedom Party (1986–2000)Recent development: the Freedom Party in Austrian government – part II (2017–2019)The Kurz GovernmentsKurz I (2017–2019)Kurz II (2020–)Changing approaches of the Austrian Constitutional CourtJudicial approaches towards populismPromoting Rights in a European Context (1970–2008)The Slovenian Minority Case LawProtecting Rights in a European Context (2008–2020)Surveillance Case LawConclusion – The Austrian Constitutional Court maintains its own approachThe Czech Constitutional Court in times of populism: From judicial activism to judicial self-restraintThe legal design of the Czech Constitutional Court and the rise of populism in Czech politicsThe two decades of expansion of the powers of the Constitutional Court and the decade of slow retreatReview of the constitutionality of legislationActivism of the Constitutional Court in relation to the general judiciary (constitutional complaints)The personal homogeneity of the first Constitutional Court and the heterogeneity of the second and third court?ConclusionsPopular initiatives, populism and the Croatian Constitutional CourtIntroductionPopular initiative as the means of fostering populist claimsThe game becomes serious: the introduction of the constitutional identity conceptProportionality in actionBack to the linguistic approachSystemic interpretation in playThe story continues: recent failed attemptsConclusionConstitutional identity as a populist notion?: The Council of State and the forging of the Greek constitutional identity through the crisisIntroductionThe forging of the Greek constitutional identity through the crisisUnderstanding the Court’s use of the notion of constitutional identityLessons to be drawn from the Greek experienceEpilogueConstitutional interpretation under the new Fundamental Law of HungaryIntroductionThe new methods of constitutional interpretationThe Constitutional CourtThe collection of the principles and methods of constitutional interpretation laid down in the Fundamental LawA new populist set of the methods of interpretation, or the reformulation of the classical methods?The use of binding interpretative methods in constitutional jurisprudenceThe application of the new methods of interpretationCases advancing populist constitutionalism (favouring the populist agenda) and the use of the new methods of interpretation in these specific casesConclusionsThe populist reforms in Italy and the instrument of the constitutionally conforming interpretationCould the Italian context be defined as populist?The so-called ‘ decreti sicurezza ’ and the containment of illegal migrantsThe application of the constitutionally conforming interpretationThe (missing) intervention of the Constitutional Court on the Security DecreesConclusionsWhatever works: Constitutional interpretation in Poland in times of populismIntroductionPreliminariesChange or continuity?The limits of judicial powerThe preferred methods of constitutional interpretationThe approach to earlier findingsThe approach to international law and EU lawWhy cherry picking?PragmatismIdeologyReputationRhetoricConclusionsNon sequiturs in constitutional adjudication: Populism or epistemic deficit?IntroductionRomania’s political landscape: populist or not?Discourses of constitutionalism in the Romanian contextInterpreting the ConstitutionDecision no. 358/2018 – a problematic constitutional interventionThe political backgroundThe legal backgroundA formalist resultOther constitutional ‘mischiefs’Populism or epistemic deficit?ConclusionsConstitutional interpretation and populism in contemporary SpainIntroductionThe political and social context of SpainPopulist challenges to constitutional jurisprudenceThe health crisis and the constitutional interpretationConclusionsPopulism, UK sovereignty, the rule of law and BrexitIntroductionThe Brexit referendum and populist politicsBrexit: parliamentary procedure and constitutional conventionsBrexit and the CourtsThe interpretation of prerogative powers: Miller 1 – can the government trigger Article 50 by making use of prerogative powers?Prerogative powers: Miller 2 – can the courts review the exercise of the prerogative to prorogue Parliament?Has Brexit resulted in new constitutional theories or doctrines?ConclusionsIII: An outlookBorn populist: The Trump administration, the courts and the Constitution of the United StatesIntroductionThe populist jurisprudence of Antonin ScaliaOriginalism and American right-wing populismJudicial populism before (and a bit after) the rise of right-wing populismPopulist pasts and presentsConstitutional interpretation: What can Europeans learn from US debates?IntroductionWhat is a constitution?The limits of interpretabilityMethods of interpretationImitative constitutionalismConclusionPopulist and non-democratic reading of the Constitution: Sad lessons from Latin AmericaForewordThesis and main inferencesAnalysisBrief methodological remarksStarting pointsWhat kind of foundations?Which rights are meant to be constitutional rights?Constitutional interpretation and legal conflictConstitutional interpretation, the method, and its ideological backdropTextualism, constructivism, hermeneutics revisitedInspecting the engine roomConstitutional weakness by institutional designCase law, examplesEpiloguePopulist challenges to constitutional interpretation: An assessmentIntroductionNational varieties of populismPopulists in governmentPopulist aspirations under non-populist governmentsNew interpretive doctrines or methods?How to assess interpretive responses to populist-inspired constitutional issues?No interpretive changes: the business-as-usual modelChanging interpretive practice to promote populist aspirationsChanging interpretive practice to counteract populist initiativesExplaining different judicial strategiesOur major findings and conclusions
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