The People’s Constitution

In this introductory chapter, we first argue that populism is not a uniform phenomenon. At the core of populism lies a critique of contemporary liberal democracy and its constitutional orthodoxy, but different kinds of populism may come with widely different attitudes towards constitutionalism and constitutional law. While authoritarian populism poses indeed a threat to constitutional democracy, democratic populism might rejuvenate it. However, populists’ institutional reformism is not per se incompatible with constitutionalism. It depends on the specific direction of the reforms and of the way they are carried out. Next, we revue the literature that claims a strong connection between populism and authoritarianism. This is what the historical evidence for the common genealogy, at least in some cases, of fascism and populism indicates. However, populists challenge democracy, especially its liberal version, but they typically do not aim to destroy it, since populism remains always within the paradigm of electoral democracy. In extremis, authoritarian populism may even evolve into dictatorship. Yet, when this happens, it isn’t populist in any proper sense anymore but rather a ‘pseudo-populist dictatorship’. On the other hand, authoritarian populism is only a potential outcome, while there are other populisms that are not authoritarian. Lastly, we propose a connection between populism and representative democracy’s structural contradictions: the definition of sovereignty’s agent and the contemporary tug-of-war between the people and the nation; issues concerning the participation of the citizens in the exercise of political power; the methods of expression and representation of the electorate; and the contribution of fundamental rules. Hence, we place populism within the problematic of the democratic re-organization of power at a time when the field of politics is shrinking, and the laws of market and/or science tend to become the main regulator of social relations.

Constituent power as a form of an unlimited power of the people fits into the populist discourse about the primacy of the people over procedures. The populist perception of constituent power emphasizes the immense presence of people on which its limitless character relies. Since constituent power stems from the people, it can take any form, as long as it is the outcome of popular will and can make decisions on any matter and not solely on the substance of the Constitution. The crucial issue then is whether or not there any criteria which could help us to draw some demarcation lines. Instead of the peculiarities of each case, there are some indicators which could make possible the differentiation between populist and non-populist attempts of constitution making, even if they sometimes look similar. The examination of each case though the lenses of these indicators might not provide us with a clear answer on whether a case is a definite case of populist constitution making. However, if we rely on the impact that such indicators have had on the constitution-making process in total, we can come to safe conclusions.

The illiberal regimes in Central and Eastern Europe present themselves as populist, using anti-representation and pro-direct democracy arguments. But in reality, this is only rhetoric, which does not necessarily correspond with these populists’ practice. Autocrats’ populism is ‘false’ their decisive characteristic is authoritarianism. What makes them distinct from non-populist autocrats are the democratic elections through which they come to power. The main argument of Central and Eastern European illiberals to defend their constitutional projects is grounded in claims to majoritarianism and political constitutionalism, which favors parliamentary rule and weak judicial review. But these efforts have nothing to do with either majoritarianism, because they are not based on the mechanism of political accountability and checks on power, or with political constitutionalism, because they do not question the capacity of constitutional courts to invalidate legislation passed by parliaments.

Democracy as a concept has often been confronted to a plethora of adjectives that at the same time determine and alter its meaning. The adjectives direct, representative, liberal designate contemporary forms of democracy without being exclusive, cumulative, or accessory the one to another. If it is widely accepted—at least from a legal point of view—that representative democracy is the dominant form of exercising power, we can still find expressions of direct and liberal democracy within national constitutions, namely through mechanisms such as the referendum for the former and the protection of the rule of law for the latter. Nonetheless, a new tendency seeks to affix adjectives to the term “democracy” that would not only alter its meaning but even go beneath the essence of democracy as a political regime, based on the electoral moment and ensuring fundamental rights and the rule of law. Therefore, the terms illiberal democracy, defective democracy, electoral democracy, hybrid democracy indicate a rather not exhaustive list of a regime that obeys formally to the democratic criteria but fails to fulfil the essence of democracy. Whereas legal scholars and political scientists have suggested that we are heading towards the transformation of Law as we know it, others have rather addressed the “end of Law”. Is the phenomenon of illiberal democracies a new constitutional phenomenon or is only part of a more profound process of the transformation of Law?

Turkey has been passing from one type of authoritarian regime to another. While the former regime has been relatively stable, based on an authoritarian conception of constitutionalism, the new one displays a picture of a blatantly illegal order. Authoritarian populism is the hallmark of this new regime. This contribution will first emphasize the differences between the old (statist) and new (populist) authoritarianism in Turkey under Erdoğan. After briefly explaining his populism, certain aspects of the current populist de-constitutionalisation are highlighted. The following sections are structured to shed light on the anti-pluralism and anti-institutionalism of populism under the AKP. The third section describes the AKP’s populist understanding of democracy and human rights and its difference from “statist” values of old authoritarianism, while in the fourth section, a snapshot of Erdoğan’s colonization of anti-majoritarian institutions and civil society is created (Sect. 4).

This chapter discusses the interrupted process of democratic consolidation and the transformation of constitutional law in North Macedonia, focusing on the characteristics of the rule of the previous Prime Minister, Nikola Gruevski. The country, under his rule, has gone through a process of gradual dismantlement of the system of checks and balances resulting in the domination of executive power, the curtailment of the independence of the judiciary and many violations of human rights. Other characteristics of the rule of Gruevski during 2008–2017 were clientelism and patrimonialism, state-controlled corruption, and an electoral process favorable to the dominant political party, which led to the decay of competitive elections. The chapter points to the transformative effects of populism on the constitutional system of North Macedonia and the difficulty of ‘undoing’ these transformations after the end of the populist government of Nikola Gruevski.

The essay proposes a reading of constitutional populism which departs from the widespread opinion whereby populists’ constitutional reforms are mainly aimed at tampering judicial power and strengthening the executive. On the contrary, it argues that the judiciary can be actually involved in the task to carry out the populist battle. A theoretical explanation for such empirical conclusion will be presented.

Brazil has joined the wave of right-wing populism, which emerged over the past decade at the international level. With the rise of Jair Bolsonaro to power in 2019, a populist, nationalist, ultraconservative, religious, and neoliberal way of doing politics has taken control of the Brazilian government. Populist movements challenge institutions, notably the Judiciary Power. They question its counter-majoritarian function and accuse their members of not acting in the name of preserving national sovereignty. Such an attitude has been adopted by Bolsonaro’s government towards the Federal Supreme Court (STF), the highest judicial body in Brazil, during the Covid-19 pandemic. This paper offers an analysis of how the institutional crisis has impacted constitutionalism in Brazil. Within its responsibilities for constitutional review, the STF, in some important cases, has succeeded in preventing abuses of power by the federal government. As is shown, the STF has played an important opposition role to radical right populism, by responding to the attacks of Bolsonarism and, consequently, confirming the resilience of the Federal Constitution.

This chapter argues that a relaxed employment of locus standi rules in constitutional cases might enable greater citizen’s participation in creating constitutional meaning, hence promoting what can be seen as a form of populist constitutionalism. It examines recent case-law of the Greek Council of State (CoS or the Court), which approaches the locus standi rules with considerable flexibility, especially when hearing cases of major public interest. By refraining from a formalistic application of the rules of standing, the CoS gains the opportunity to address the disputed issues and decide constitutional cases on the merits. This trend is confirmed in cases brought before the Court both by individual persons as well as by interest groups and associations. Although broad standing rules entail the risk of introducing an actio popularis, the CoS seems nevertheless to favor a lenient application of the relevant rules. By enabling ordinary people to be heard before it in order to have their constitutional rights enforced, the Court lays the ground for wider popular involvement in the creation of constitutional case-law, effectively promoting what in parts of the constitutional theory literature has been termed populist (or popular) constitutionalism.

Legal scholars have been attempting to discern methods to safeguard democracy in the face of authoritarian populist projects. Much of the relevant discourse has centered on constitutionalism-based mechanisms like unconstitutional constitutional amendments, revision clauses, defensive/militant democracy, and institutions of accountability such as constitutional courts and fourth-branch institutions. Nonetheless, these tools have largely been ineffective in stopping or halting authoritarian populist projects. This chapter argues that superior options to confronting these authoritarian populist projects must be found in the political arena.

This essay discusses the relation between populist constitutionalism and left-wing political populism, focusing primarily on their perception of ‘the people’. Being a distinctive current in United States (US) constitutional theory since the early nineties, populist or popular constitutionalism takes the people not just as a ‘name’ to which legislation and other political action are attributed. They consider them as citizens having the final word on the interpretation and the implementation of the Constitution. Populist constitutionalism cannot be associated with nationalist or authoritarian versions of political populism but has common features with left-wing populism which also aims to enhance people’s role and favors political mobilization. Notwithstanding their differences, populist constitutionalism and left-wing populism challenge minimalist theories of electoral democracy and legal distrust towards mass political activity. Their critical approach towards the dominant view of the Constitution from the standpoint of the ordinary people can be upheld if it is combined with questioning the social content and the institutional arrangements of existing liberal democracy.

Starting from the assumption that lobbyism and populism are phenomena both related to the socio-political pluralism, typical of the modern legal orders, the paper intends to analyze them in the experience of U.S.A. and Italy. Particularly, they’ll be summarized the regulatory systems of lobbying activity, as well as the characteristics of populism, tried out in both Countries. Such comparison, to highlight that—in despite of the common matrix—the aforementioned phenomena produce very much different effects into the liberal-democratic system, especially regarding the role of the Parliament, of the political parties, of the electoral debate and, also, the selection of interests, the elaboration of public policies and their transition inside the decision-making process: while lobbyism might be considered a part of a mature democratic system, instead populism contradicts some of the cornerstones of both the social and liberal democratic tradition.

Once acceded the EU, all Member States, implicitly or explicitly, developed a constitutional strategy to deal with the supranational level. This chapter investigates the ways in which populist political strategies impact on the Member States’ constitutional strategies in the face of multi-level governance. By relying on the empirical studies that have investigated populism both as a political strategy and as a competing constitutional theory, this chapter proposes a model to measure the impact of populist political pushes on the national constitutional approach towards the EU. Such a model is based on the observation of the spread between political practice and institutional design in two fields: EU-related referendums and the parliamentary oversight of the executives in EU affairs.