The mysterious notion of populist constitutionalism

The debates on populism have also reached the constitutional discourse, recognizing that one of the distinguishing features of modern populism is its ‘constitutional project’, that is, the ambitions of populists to pursue constitutional changes to achieve their goals when they come to power. It should be noted, however, that some opinions, as far as authoritarian populism is concerned, do not attach particular importance to formal rules because they believe that these regimes use primarily informal means; and they arc rather characterized by the way they manipulate, circumvent, or evade constitutional and legal rules that would limit their power. Such systems, which are sometimes referred to as competitive authoritarian regimes, often operate within the framework of seemingly democratic constitutions but neutralize control of power by informal means.

Nevertheless, after having come to power in several countries, those generally considered ‘authoritarian populists’ adopted new constitutions to serve their purposes (such as in Peru in 1995, Venezuela in 1999, Ecuador in 2008, Bolivia in 2009, and Hungary in 2011), or they achieved significant constitutional reforms (such as in Turkey in 2017, or in Poland after 2015). As a result, it is now common to believe that it would be erroneous to underestimate the importance of formal constitutional rules in the so-called

‘hybrid regimes’ that also include populist governments. This is shown by the success and spread of the term ‘populist constitutionalism’, which, however, has several rival concepts depending on how observers classify the main aspirations of these movements and their relationship to constitutional democracy.

‘Authoritarian’, ‘illiberal’, or ‘populist’ constitutionalism?

Although some scholars suppose that after the recent threats of constitutional democracy, which have now become a global phenomenon, no new model of constitutional systems has emerged,[1] the constitutional effects of populism are considered by most academics to be so significant that it is treated as a separate category.

The contemporary decline or backsliding of liberal democracies are defined in various ways, but many of the widely used labels such as ‘constitutional breakdown’, ‘stealth authoritarianism’, or ‘democratic recession’ indicate the process rather than the substance.

The political systems that emerge as a result of these tendencies are often referred to in political science works as ‘hybrid regimes’, or competitive or electoral authoritarianism. For many authors, some of the competing terms are interchangeable concepts or are related to each other as main and sub-groups.

Other scholars prefer to classify this legal transformation as, for example, ‘autocratic legalism’ or ‘counter-constitutionalism’. Among the often-used terms, ‘abusive constitutionalism’ is frequently cited, according to which modern authoritarian regimes seek constitutional changes through which they can consolidate or preserve their power. However, a constitution or constitutional amendment for such a purpose can be considered abusive, as it is basically aimed at weakening or breaking down the limits of governmental power or making it more difficult for the opposition to come to power.

According to other approaches, populism is a political phenomenon whose constitutional ambitions arc better expressed by the terms ‘illiberal’ or ‘non-liberal constitutionalism’,[2] which is a stage in the process of a transition from liberal democracy to an authoritarian system, a special form of constitutional development that relativizes the rule of law, democracy, and human rights in politically sensitive matters and institutionalizes populist nationalism. The term can be traced back to a frequently cited article by Farced Zakaria, but many politicians use the term for their own definition, maintaining however that their illiberal regimes - such as in Poland and Hungary - can be classified as constitutional democracies.

The effects of populism on the constitutional system are most often referred to as ‘populist constitutionalism’, a term which is often preferred because it refers specifically to changes brought about by populist politics, while the epithets ‘authoritarian’ or ‘illiberal’ have broader meanings that can also be applied to non-populist regimes.

  • [1] Mark A. Graber, Sanford Levinson, and Mark Tushnet, ‘Introduction’ in Mark A. Graber, Sanford Levinson, and Mark Tushnet (eds.), Constitutional Democracy in Crisis? (Oxford University Press 2018) 3. 2 These oppositional categories, however, are not strictly correct, if we consider the question of whether or not populism has produced its own constitutional theory. 3 Wojciech Sadurski, Poland’s Constitutional Breakdown (Oxford University Press 2019). 4 Ozan O. Varol, ‘Stealth Authoritarianism’ (2015) 100 Iowa Law Review 1673-1742. 5 Larry Diamond, ‘Facing Up to the Democratic Recession’ (2015) 26 Journal of Democracy 142.' 6 Matthijs Bogaards, ‘How to Classify Hybrid Regimes? Defective Democracy and Electoral Authoritarianism’ (2009) 16 Democratization 399-423. 7 Levitsky and Way (n 48). 8 Andreas Schedler, The Politics of Uncertainty Sustaining and Subverting Electoral Authoritarianism (Oxford University Press 2013). 9 Scheppele (n 33) 545-583. 10 Paul Blokker, ‘Populist Counter-Constitutionalism, Conservatism, and Legal Fundamentalism’ (2019) 15 European Constitutional Law Review 519-543. 11 David Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 213.
  • [2] Graham Walker, ‘The Idea of Non-Liberal Constitutionalism’ in Ian Shapiro and Will Kymlicka (eds.), Ethnicity and Group Rights (New York University Press 1997) 169. 2 Timea Drinoczi and Agnieszka Bien-Kaeala, ‘Illiberal Constitutionalism: The Case of Hungary and Poland’ (2019) 20 German Law Journal 1141, 1165; Aron Buzogany, ‘Illiberal Democracy in Hungary: Authoritarian Diffusion or Domestic Causation?’ (2017) 24 Democratization 1307-1325. 3 Farced Zakaria, ‘The Rise of Illiberal Democracy’ (1997) 76 Foreign Affairs 22-43. 4 Drinoczi and Bien-Kaeala (n 61) 1148. 5 Ibid. 1149. 6 For instance, in Paul Blokkcr, ‘Populist Constitutionalism’ Verfassungsblog, 2017/5/04. https://verfassungsblog.de/populist-constitutionalism/; David Landau, ‘Populist Constitutions’ (2018) 85 The University of Chicago Law Review 521-543. 7 Meny and Sure! (n 3) 7-11. 8 Mark Tushnet, ‘The Possibility of Illiberal Constitutionalism?’ (2017) 69 Florida Law Review 1367-1384; Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (The University of Chicago Press 2018). 9 See for example Gabor Attila T6th, ‘Constitutional Markers of Authoritarianism’ (2019) 11 Hague Journal on the Rule of Law 37-61; Gabor Halmai, ‘Populism, Authoritarianism and Constitutionalism’ (2019) 20 German Law Journal 296-313.
 
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