18 Populist challenges to constitutional interpretation
Populist challenges to constitutional interpretation: An assessment
Fruzsinn Gdrdos-Orosz and Zoltdn Szente
The problem-setting of our book was based on the recognition that one of the most characteristic political tendencies in contemporary Europe is modern populism, which seeks to realize its power ambitions as well as its values and aspirations through constitutional changes. Consequently, according to all indications, the populist agenda influences constitutional development not only when populists arc in government, but also when they are in opposition and when the government, often under pressure from public opinion, takes on and pursues similar policy objectives.
Nevertheless, real constitutional moments occur only rarely, and formal constitutional changes often lack the appropriate majority support. In such circumstances, the importance of the use of informal tools and procedures to change the constitutional design increases. Among them, constitutional interpretation can have a crucial role, because if new methods are used to reveal the meaning of the constitutional text, or certain substantive constitutional concepts arc reinterpreted, significant reforms can be performed even without amending the constitution. In addition, as Fruzsina Gardos-Orosz’s study reports, even when specific political expectations arc reflected in a constitutional amendment, they do not necessarily prevail in reality. In sum, our presumption was that if populist constitutionalism is a real phenomenon with certain common features, it will certainly have an effect on previous, well-developed ways of constitutional interpretation.
Although our research focused on the interpretive practice of constitutional and other high courts, it should not be forgotten that constitutional interpretation is not the exclusive domain of these courts, as other public bodies also carry out such activities and often seek to influence the constitutional jurisprudence accordingly. As Wojciech Brzozowski points out in relation to Poland, for example, ‘the populist revolution relied greatly on constitutional arguments and interpretations put forward by the political branches of government and by their committed supporters’.
Moreover, we must distinguish between political demands, proposals, and judicial practice, because our study focuses not on political rhetoric but on the actual effects of populism on constitutional interpretation. In other words, populism as a political movement, style or rhetoric cannot be identified with populist constitutionalism, as the latter covers only the constitutional dimensions of populist political aspirations.
Below, when analysing the chapters of this volume, we first discuss the various forms of populism in the countries examined, before exploring how courts performing constitutional review have responded to the populist challenge by constitutional interpretation. Next, we attempt to give explanations for why certain courts have changed their interpretive practice, while others have not, and in this way, whether they support or resist populist aspirations. In the last section, we briefly summarize our most important findings and conclusions.