Populism and Constitution Making Process

Urbinati (2019), p. 91.

According to populists, populist movements and parties always represent the majority of the people even if they are in opposition, because what counts is not the plurality of the people which makes the unity of the people an open-ended project but a predetermined and fixed unity, which determines as “true” majority only the majority that expresses such unity. Id, p. 92. As Jan Werner Müller indicates, populists are not against representation and election as means of ruling; they are mainly against plurality and disagreement. Müller (2014), p. 262.

Corrias (2016), p. 9.

Quoted by Yaniv Roznai, in Roznai (2021a), p. 250.

On the issue of the so-called structural populism and its differences from political populism which uses populist rhetoric but still engages in politics within the basic structure of constitutional democracy, see Gardbaum (2020), pp. 3–4. Nevertheless, the distinction between the two forms of populism does not imply that political populism is not a threat to democracy. It only implies that the characteristics of such threat are different.

Populism as government should be considered a hybrid form of political regime which combines the formal elements of democracy with the actual practices of authoritarianism, see Arato and Cohen (2022), pp. 108–112.

The Hungarian case, though, highlights that even a process of constitutional change bound by the rules of existing constitutional order can be exclusionary. However, in such cases the problem is not that political actors violated the rules of the game, but that the rules themselves (rules enacted not by populist political actors) were unable to ensure a more inclusionary and pluralist constitutional change. Landau (2020), p. 93.

My account on the term ‘unconventional adaptation’ relies on Bruce Ackerman’s analysis in Ackerman (2000), pp. 11–13.

On the unconventional adaptation of the Constitution of Venezuela, see Braver (2016), pp. 565–569.

Landau (2018), pp. 527–529, 531–532.

Braver (2016), p. 565.

It should be noted that Chavez lacked in Congress the majority necessary to proceed with the replacement, since one month before the Presidential elections, the legislative elections took place but Chaves’ movement did not gain the majority that was necessary for the implementation of the replacement formula the Constitution provided for (Braver 2016), p. 566.

However, it is worth noting that the total turnout of participation was not considerably lower than the total turnout of the general elections held in Venezuela after the Second World War that was 37.4% in average. Chavez was elected as President with a majority of 56% of the votes in December 1998, which represented the support of the 33.4% of the electorate In the referendum for the convocation of the constituent assembly the votes in favor of yes received 87.8%, representing a total turnout of 33.0% of the electorate, and in the referendum which ratified the newly drafted Constitution yes represented the 81.7% of the voters and 30.8% of the electorate, In the election of the members of the Constituent Assembly Chavez supporters got the 65.5% of the votes, which represented the 30.3% of the electorate, but they gained almost 95% of the seats due to the electoral system selected by the President. The data has been received from Coppedge (2002).

Landau (2013), pp. 939–951.

Even after the 1998 election the opposition held 89 out of 188 seats in the Parliament and 46 out of 100 seats in the Senate.

For a detailed analysis, see Segura and Bejarano (2004).

In fact, as Nadia Urbinati indicates, for populists, the people’s opinion is important only during elections. Any victory during national elections is considered a source of free and unmediated delegation for the future. Urbinati (2019), pp. 131–132. It is worth noting that the Supreme Court of Venezuela ruled that the second question of the referendum which authorized Chavez to unilaterally decide the method of election for the assembly was unconstitutional, on the ground that the voters did not know in advance what the subject of the question was. Braver (2016), pp. 566–567.

Pitkin (1972), pp. 152–153.

The measurement of consensus is not an easy task. Yet, any measurement presupposes at least a point of reference regarding what is countable through measurement. For instance, when the issue at stake is the mandate of a Constituent Assembly, do we measure the consent of the people to a vaguely proclaimed will for the total change of a Constitution or to a change whose subject matter is known to the people before the election of the Constituent Assembly and the commencement of the Constitution-making process?

Roznai (2018), p. 312.

Braver (2018), pp. 30–32.

It should be noted that the 2004 amendment of the Constitution which allowed for the convocation of a constituent assembly was passed by the Congress which had been elected in the general elections of 2002, in which MAS (the Morales movement) won only 27 out of 130 seats. Thus, the Congress that came to a decision about the amendment, which allowed for the convocation of the Constituent Assembly, was not dominated by Morales’ supporters like the Congress which passed the special law for the convocation of the assembly in which MAS won the 55% of the seats of the lower house and the 45% of the seats in the Senate.

Arendt (1992), p. 165.

Braver (2018), p. 32. The whole process is not unlawful for another reason too. The process of constitution making in Bolivia was based on rules which bound their creators, while in Venezuela the object of such rules was to formulate a constitution-making process that was boundless. In the latter case, in the name of immanent representation of people through the Constituent Assembly and the President, the distinction between institutions that create laws and institutions that execute laws does not exist anymore. This way, the assembly declared itself sovereign over other institutions.

In the 2005 elections, MAS won 55% of the seats of the lower house of Congress and gained 12 out of 27 seats in the Senate.

According to the relevant rules, the second, third and fourth parties would gain at least the 38% of the seats regardless of the percentage of the votes they got.

In such cases, the total reform of a constitution fulfills an exit-from-the-crisis function, which can be an additional justificatory ground in favor of the constitutional reform. For instance, the Supreme Court of Colombia accepted the convocation of a constituent assembly, despite of its previous jurisprudence on the subject, which was negative on the ground that the Colombian Constitution did not provide such process of constitutional change, due to the severe political crisis which could not be resolved within the constitutional framework of that time; see Landau (2020), p. 87.

The Hungarian case can be considered also as an example of a form of constitutional change that unmakes the constitution, in the sense that after the constitutional change there is a new constitution in terms of structure, identity or rights’ protection, without breaking legal continuity. It is a constitutional dismemberment according to the term coined by Richard Albert. See Albert (2018), pp. 39–52. See also Albert et al. (2022), p. 104.

Ferrara (2020), p. 164.

Colón Ríos (2020), p. 263.

The precedence of the people is obvious also in theories which consider the constituent power to be bound by principles which determine the outcome of the process. According to this approach, the justificatory ground for such binding is that principles guarantee that the outcome of constituent process should make possible an exercise of constituent power anew (by people) in the future. On this issue, see Roznai (2021b).

Ferrara (2020), p. 158.

Shecaira (2014), p. 14.

Albert (2009), p. 9.

On the distinction between unconstitutional and extraconstitutional see id, pp. 10–11.

This is not to say that rulings from different courts around the globe that do not abstain from judging on the issue of constitutionality of unconventional adaptions are illegal. They rely, nevertheless, on a different perception about their institutional role and about the locus of sovereignty (understood as the authority for the final decision making) and legitimacy in a constitutional order. See Albert (2009), pp. 32–39. It should be noted also that, in some cases, the same court ruled in opposite directions on this issue, due to the different context related to the time of the decision. See footnote 28.

In Venezuela, in January 1999, the Supreme Court delivered a decision (Caso Junta Directiva de la Fudnacion para los Drecrios Humanos) which held that a proclamation of a referendum for the convocation of a constituent assembly was an expression of original constituent power. Thus, it could rebut the lack of any specific provision in the Constitution that provides for its total reform. On the contrary, in a decision related to the electoral rules for the convocation of the Constituent Assembly (Caso Gerardo Blyde, contra la Resolucion No. 990217-232), the Court ruled that President Chavez should clarify in advance the electoral rules regarding the election of the members of the Constituent Assembly, which were also the subject of the referendum, since the Constitution entails the people as a constituent subject, and its activation anew can take place only when people know in advance what the available choices are, since they are going to act as a constituent subject. Landau (2013), pp. 943–944. Thus, there are two narratives regarding the exercise of the constituent power which can be very helpful in any attempt to draw lines between a populist and a popular conception of constitution making. The exercise of constituent power cannot be excluded as a means of constitutional change due to its extralegal character. However, not any exercise of constituent power can be qualified as an expression of popular self-determination (Braver 2016), pp. 569–577. Yet, the question of whether such judicial decisions can affect the constitution-making process is a different issue; see Landau (2020), pp. 82–97.

According to the ruling, the Council does not have the jurisdiction to review such constitutional change, because neither the Constitution nor any other law provide any relevant competence. See decision no. 62-20DC, Nov.6, 1962, Rec.27.5.

It is quite interesting though that, in a series of decisions, the Supreme Court held that the rebellion did not affect the bonds of the rebel states to the Union. They were still part of the Union despite the rebellion, White v Hart, 80 U.S. 646, 651, (1871), Texas v White, 74 U.S. 700, 726, (1868).

According to Bruce Ackerman, the whole process was a naked violation of article V, Ackerman (2000), p. 110.

Id, pp. 578–581.

See, Coleman v Miller, 307 U.S.433, 449–450 (1939). In another case, the wording of the decision is quite trivial and could possibly lead to the conclusion that even a constitutional change which took place in a process not compatible to article V is valid, when it can be considered an expression of people’s voice, “within the last eight years three other articles of amendment of vast importance have been added by the voice of people”. See Slaughterhouse cases, 83 U.S.A. 36, 67 (1873). The issue of the validity of the amendments is considered by the Court to be a matter of jurisdiction, namely a matter of a decision upon the source of the legal norm that should be applied and not upon which legal norm should be applied and how. See also, Ackerman (2000), p. 245.

According to Braver, what differentiates unconventional adaption from other forms of constitution making that lead to the same outcome (extraconstitutional change) is that it relies on three components which secure that it is legitimate—even if not in conformity to the existing legality—expression of popular will. These components are the exhaustion of the legal channels that the existing constitutional order provides for constitutional change, popular mobilization, and inclusion. The exhaustion of the legal channels is a strong indication that there is already a consensus about the need for a change (Braver 2018), p. 15.

According to Gabriel Negretto, the available data indicate that an inclusive and consensual process of constitution making leads to a significant improvement in terms of the implementation of rights and the imposition of constraints upon executive power after the enactment of the new constitution in comparison to constitution-making processes that rely only on the direct participation of people; Negretto (2020), pp. 116–117.

Albert (2019), p. 21.

In all three cases mentioned, there were previous failed attempts to change the Constitution. In Hungary, the Constitution which was replaced after FIDESZ’s victory was the Constitution of 1949. After the 1989 regime change, the old Constitution was revised 31 times between 1989 and 2011 but was still in force, since an attempt for its total replacement in the mid-nineties failed. The adoption of a new constitution had been pending since 1989 since the amendments to the Constitution of 1949 were not considered a permanent solution. See, Roznai (2022), p. 144. On the Hungarian case see also, Kis (2012). In Venezuela also, an attempt to amend the Constitution initiated by the two major parties that were dominant until the elections of December 1998, failed some years before Chavez’s victory, and the same occurred in Bolivia some years before Morales’ victory. On the Bolivian case, see Braver (2018), p. 29. On Venezuela, see, Segura and Bejarano (2004), pp. 223–225.

Corrias (2016), pp. 18–19.

In fact, as Nadia Urbinati indicates, for populists, peoples’ opinion is important only during elections. Any victory during national elections is considered a source of free and unmediated delegation for the future. Urbinati (2019), pp. 131–132.

What is accepted as law does not involve only the acceptance of rules as an authoritative source of actions. It also entails that these rules are an authoritative source of meaning for all those involved in legal and institutional practices; Patterson (1999), p. 73.

They are constitutive in the sense that they constitute a rejection of the substantive visions of the political community expressed by the previous constitutional rules, which were not capable of modifying the constitutional change, and which simultaneously constitute a new substantive vision of the political community.

Kuo (2019), p. 23.

I use the term in the broad sense including court-curbing strategies aiming to eliminate the role of judiciary as an effective mechanism of control upon the executive and the legislator, such as the modification of courts’ jurisdiction, the creation of new tribunals, the merging of different courts, and the change of term or age limits related to the office. The aim of court packing is to create a new majority in the composition of a court. Kosař Šipulová (2023), p. 82.

The technique of packing supreme or constitutional courts has been followed by populist regimes, such as Turkey, Venezuela, and Hungary. See Landau (2018), p. 535; Schepelle (2018), pp. 548–552.

Lefort (1988), pp. 18–19.

Eylon and Harel (2006), pp. 991–1022.

The flawed aspect of the populist perception of democracy is not the emphasis on majority rule per se, but the perception that majority rule should not be an open-ended project which allows for the formation of different majorities during its time span.

Colón Ríos (2020), p. 263. The mechanisms, which are in charge of checking violations of human rights and the integrity of processes that are crucial for democracy, like the electoral commissions, acting as a “corrective” factor of majority rule, are not part of the democratic process and the majority rule itself. In liberal democratic regimes, the operation of democracy is framed by such institutions, which are entitled to assess the quality of the outcomes through a review that secures that the enabling condition of democracy (rights and processes) remain intact from the purely procedural and majoritarian aspects of democracy. See, Elster (2000), pp. 94–95, 99–100.

Tushnet and Bugarič (2021), pp. 148–176.

The Basic Structure Doctrine imposes implicit limits to what can be amended even when the Constitution does not entail any substantive limitation on the amendment process; Albert (2019), pp. 73–76.

Tushnet and Bugarič (2021), pp. 167–169. For instance, the German Parliament chooses the judges of the Constitutional Court by a two-thirds majority, and in Greece, according to the Constitution, the Cabinet appoints the Presidents and the Vice Presidents of the three Supreme Courts, after a proposal held by the Minister of Justice (art. 90, par. 5).

Kosař and Šipulová (2023), p. 26.

As the Indian example indicates, an evaluation based exclusively upon the imputation of an intent to political actors cannot escape from subjective assumptions, and it is difficult to prove the true motives of the actors.

Arato and Cohen (2022), p. 108. Thus, political regimes which have been moved to the stage of populism as government can be considered not only populists but also authoritarian; id., pp. 107–108.

The dismantling of preexisting institutions does not entail only court packing. Also, the means of dismantling are not always beyond those provided by the existing legal order. For instance, in Hungary and Turkey, the dismantling of institutions was the outcome of a constitutional amendment (Turkey) or a combination of a constitutional amendment and replacement (Hungary) which took place according to the relevant constitutional provisions. The Turkish case, though Erdoğan’s regime after the failed coup d’etat of 2016 has moved from populism to authoritarianism, is quite interesting. The amendments of 2010 which took place when the regime had not yet turned to a purely authoritarian form of governance, allowed the change of the composition of the Constitutional Court and lead to a capture of the court by Erdoğan’s supporters, but it could also be viewed as a move of democratization. The court at 2008 had attempted to ban AKP which had won the 2007 elections with a majority of 46.6% votes. It is also worth noting that part of the 2010 amendments was the withdrawal of the immunity of the former dictators which made possible their trial and conviction at 2014. However, the attempt should be viewed as a part of an incremental procedure which gradually lead to the capture of all institutions by Erdoğan’s supporters. Thus, the Turkish case indicates also that the intent of an initiative for a court packing is not in itself a safe criterion for the characterization of a change in the composition of a court as regime change-oriented or not. On court packing under Erdoğan’s regime see, Varol et al. (2017). On the impact of incremental constitutional changes to the radical transformation of a constitution see Khaitan (2020) and Roznai and Hostovsky Brandes (2020).

Kosař et al. (2019), p. 457.

Ferrara (2020), pp. 168–177. Such provisions have a double connotation. They reflect the specific identity of people but they also “convey a message to the world”, id 172. They reflect of what the citizens of the polity stand for, and, simultaneously, they state what separates the citizens of the polity from citizens of other polities, a differentiation which makes any Constitution different from other Constitutions.

A Constitution is autochthonous not only when its making is an expression of popular will but also when such expression is free of coercion.

On the expressive function of law, see, Sunstein (1996).

Ferrara (2020), pp. 176–177.

Id, 172, 174.

Halmai (2020), pp. 97–123.

Saffon and Urbinati (2013), p. 442.

Corrias (2016), p. 21.

As already mentioned, the authenticity of a constitution can be detected in the way it has been created and in the provisions of the new Constitution which secure that political autonomy is a basic component of the Constitution (Ferrara 2020), pp. 171–172.

The Venezuelan case and much more the Bolivian one, indicate that populism is not always an exclusionary project. There are forms of constitutional change which share some of the main characteristics of populist discourse and they are still reflect an inclusionary conception about people. See, Tushnet and Bugarič (2021), pp. 65–69. See, also Mude and Rovira Kaltwasser (2013). It is easier to identify that a constitutional change is not populists oriented than the other way.

Yet, we should bear in mind that this indicator is one among many denoting the affiliation of a constitution to populist discourse. On the rights of indigenous people in Venezuela see, Alé (2018).

I do not consider the convocation of a Constituent Assembly after the electoral victory of a party or political movement, which included the enactment of a new constitution in its political agenda, a violent action. When the victory in theelections is the result of free andfair procedures, hen the convocation af a Constitutent Assembly is not biased.