Power to the People: Constitutionalism in an Age of Populism

It is strange how the meaning of words can reverse over time. ‘Populism’ would once have been seen as a virtue – as a handmaid to democratic progress. Weren’t the Chartists, the promoters of the Great Reform Act, or the 1906 Liberal administration essentially populists? But ‘populist’ now carries a high degree of opprobrium – as almost a synonym for fascism – with the events of 6 January 2021 in Washington still fresh in the memory. But can populism be rescued from the demagogues, and used to revive and strengthen democracy rather than destroy it?

Mark Tushnet and Bojan Bugaric, law professors from the universities of Harvard and Sheffield, consider the extent to which populism threatens to destroy constitutionalism, and whether it can co-exist with constitutionalism, as a necessary corrective to the potential deadening effects that aspects of a constitution can have in stymying democratic progress. The authors have used the idea of ‘thin constitutionalism’ – the basic minimum standards of majority rule, with certain rights being considered fundamental and entrenched – as a template against which populist programmes can be analysed. This is surely the right approach: defining populism against a one-size-fits-all set of values is doomed to failure (whereas defining anti-democratic authoritarianism is easier, as shown by two other Harvard professors, Levitsky and Ziblatt, in How Democracies Die).

Definitions, though, are slippery things, particularly when it comes to populism in a pejorative sense. There is a risk that terms are parsed to show the speaker’s legitimacy as against the illegitimacy of opposition views: I am a democrat, you are a populist, she is an authoritarian. The authors, however, are alert to the problem of confirmation bias in the material they analyse. With so many examples of populism to choose from – populist parties such as Fidesz in Hungary, PiS in Poland and the BJP in India, to movements such as Iceland’s ‘crowdsourced’ constitution and Citizens’ Forum or Ireland’s Citizens’ assembly – the chosen sources will inevitably pre-determine conclusions. In casting their net wide, though, the authors steer the reader away from a simplistic dismissal of populism.

Of course, some would assume that ‘populist’ is not an insult but a badge of honour: trashing the rights of others is necessary to achieve the will – or the sovereignty – of the people. All those tiresome checks and balances that, for example, stop a prime minister from exercising a power that isn’t a prerogative one, or proroguing parliament contrary to a constitutional convention, are little more than barriers put up by the ‘elites’ (it is usually ‘elites’ that populists attack nowadays) to stop real democracy. This probably shows why this book may be one of the most important works on the populist/constitutionalist dichotomy of recent times; making democracy more democratic, if that is your definition of a populist, has a vital role to play. Equally, the constitutional checks and balances – the ‘guardrails’ constitutions provide – are also vital.

If the work has a fault it is that the authors confine their analysis to the present moment. This is understandable, but many recent developments may leave the objective commentator musing that it is too early to say whether benefits or disaster flow from them. ‘Popular sovereignty’ sounds a good thing, but to Abraham Lincoln it was ‘a living, creeping lie’. Why? Because ‘popular sovereignty’ was the justification for permitting slavery to continue in the slave states in the years leading up to the American Civil War. Context is all. More recently we have seen how 20th-century totalitarians clothe the usurpation of democratic norms with sham concepts of carrying out the will of the people, often with referenda masking power-grabs. For this reason, it is necessary to turn to history to show what works in sustaining and enhancing democracy. Both the reform bills and the 1911 Parliament Act could be seen from a populist perspective, and both in their day were viewed by some as subverting the constitution.  

Defending constitutionalism may seem remote from the everyday experience of most lawyers in this country but if we can’t – or won’t – defend the rule of law, who will? Power to the People provides the tools to engage in a debate that is likely to define at least the first half of 21st-century constitutionalism.  

Max D Winthrop is senior partner at Short Richardson & Forth, Newcastle