An ‘Instrument of Government’ or ‘Instrument of Courts’?: The impact of political systems on constitutional interpretation and the case of populism

Anna Gamper


Lately, the Janus face of populism has been addressed in the illuminating opening address of the cantonal governor of the Swiss canton Appenzell Inner Rhodes delivered at the Landsgcmeinde on 28 April 2019, the annual gathering of cantonal voters:[1]

Recently, the term ‘populism’ ... has become used to an almost inflationary degree, particularly with a view to accuse the other side of a lack of real arguments. It is sometimes overlooked that politics is always guided by the sentiment of the people. This is, per se, neither condemnable nor dangerous, but democratic as long as the people has the actual say. Understood in this sense, populism is not the end of democracy, but, on the contrary, a request to defend democracy against demagogy and dramatization, with self-assertiveness and the willingness to reform and consensus. For even democracies can die.

Liberal constitutions should not and do not want democracies to die. Rather, their task is to help democracies - and, thus, the rule of the demos (the Greek synonym for the Latin populus') - survive. But can they themselves survive in a populist environment?

Although legal resentment is considered to be a prominent dimension of populism,[2] constitutional law is regarded as an important matter by populists - even if from a different lens than that of liberal democracy. This has induced scholars to speak of‘constitutional populism’ or ‘populist constitutionalism’. By and large, populists engage with constitutions either because they use them, where necessary, as their own protective shields or because they criticize them or because they interfere with them, c.g. by a constitutional amendment.

Their engagement with constitutions necessarily implies that constitutional interpretation, too, is an important matter for populist governments in Europe and elsewhere. Most often, it is the constitutional interpretation by constitutional or other courts that collides with populist attitudes. This may prompt a populist government to counteract cither with or without the means of constitutional law. Conversely, courts may also critically respond to populist measures by counteracting even constitutional amendments.

In this chapter, I will first attempt to sketch a general framework of how the nature of a political system corresponds to constitutional interpretation, based on three hypotheses: (i) political systems - that are, for the purposes of this study, classed as liberal democracies, illiberal democracies and non-democra-cies - require constitutional interpretation that implements and furthers their aims, (ii) both liberal and illiberal democracies seek for formal legitimacy of constitutional interpretation and (iii) illiberal democracies are - despite or perhaps exactly because of this notion of formal legitimacy - more disposed to amend the constitution for interpretive purposes if necessary. In order to test these hypotheses, I undertake to examine written constitutions worldwide

An ‘Instrument of Government’ or ‘Instrument of Courts’? 45 (again categorizing between those of liberal democracies, illiberal democracies and non-democracies) as to whether they contain explicit rules on the methods and standards of constitutional interpretation. Do these rules correspond to the political character of the respective system? Arc they enacted originally with a view to establish a political system? Or arc they enacted in order to counteract a previous constitutional interpretation by courts?

Secondly, the relation between political systems and constitutional interpretation will be examined in the specific case of populism. Do populist systems generate their own constitutional interpretation, either by the entrenchment of rules on constitutional interpretation or by other, organizational or procedural measures that may at least indirectly influence constitutional interpretation? Have populist systems invented new instruments to safeguard the constitutional interpretation they desire, or do they just play the usual constitutional repertoire? Lastly, the article will examine the possible approaches of constitutional and other apex courts regarding constitutional interpretation, namely as to whether they serve to escalate or de-escalate populism. The pending question is whether the constitutional lawmaker or constitutional courts have the final say on constitutional interpretation.

  • [1] Cantonal voters directly elect their representatives as well as vote on cantonal laws in these gatherings that have a medieval origin. Even though direct democracy is sometimes associated with populism, populists derive their power essentially from elections and their claim to represent the people. See, also, on the frequency of liberal outcomes of referenda, Robert Howse, ‘Epilogue: In Defense of Disruptive Democracy - A Critique of Anti-populism’ (2019) International Journal of Constitutional Law 641, 648. 2 Opening address by Landammann Daniel Fassler, landsgemeinde/archiv-landsgemeinden/28-april-2019/ftw-simplelayout-filelistingblock/ landsgemeindeansprache-landammann-daniel-fassler.pdf accessed 14 October 2019, 2-3.
  • [2] Paul Blokker, ‘Populism as a Constitutional Project’ (2019) 17 International Journal of Constitutional Law 535, 548-551; Paul Blokker, ‘Populist Constitutionalism’ (Blog of the International Journal of Constitutional Law, 4 May 2017) www.iconnectblog. com/2017/05/populist-constitutionalism accessed 14 October 2019; Paul Blokker, ‘Populist Constitutionalism’ in Carlos de la Torre (ed.), Routledge Handbook of Global Populism (Routledge 2018) 113, 115, 120-123. 2 Blokker, ‘Constitutionalism’ (n 3); Jan-Werner Müller, ‘Populist Constitutions’ (Blog of the International Journal of Constitutional Law, 23 April 2017) www.iconnectblog. com/2017/04/populist-constitutions-a-contradiction-in-terms accessed 14 October 2019; Neil Walker, ‘Populism and Constitutional Tension’ (2019) 17 International Journal of Constitutional Law 515, 519-522; Blokkcr, ‘Constitutionalism’ (n 3) 115; Blokker, ‘Populism’ (n 3) 535-553; Luigi Corrias, ‘Populism in a Constitutional Key’ (2016) 12 European Constitutional Law Review 6,9-10. 3 Ana Micaela Alterio, ‘Reactive vs Structural Approach’ (2019) 8 Global Constitutionalism 270, 273. 4 Blokker, ‘Constitutionalism’ (n 3); Müller (n 4); Walker (n 4) 519; Blokker, ‘Constitutionalism’ (n 3); Paul Blokker, ‘Varieties of populist constitutionalism’ [2019] 20 German Law Journal 332. 5 While both liberal and illiberal democracies are based on constitutions that provide a democratic form of government, the constitutions of non-democracies lack a democratic design or only pretend a kind of‘semantic’ democracy. The constitutional difference between liberal and illiberal democracies may often be less striking than in political terms but focuses on the hierarchical position and constitutional resilience of fundamental rights.
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