When Populism Meets the Constitutional Dimension: A Formal Framework for Facilitating Comparative Constitutional Studies

1 Introduction

To improve comparative constitutional research, one should also concentrate on the development of formal, abstract and logical tools, which could then help to methodologically frame the more detailed and concrete studies in this area. In recent times, this omission has become manifest in the increasing number of studies worldwide that simultaneously address populism and constitutionalism, be it in a comparative way or not.

Populism may translate into ‘laws, policies, or institutions’ that do not always enhance self-rule of the people;^[1] the question is what happens when it engages with the constitution itself. Populism can of course hit the state through mechanisms other than constitution-related interventions. In fact, to achieve political outcomes, social movements rely on executives, legislators, administrators, and judges,^[2] and less on affecting the country’s constitutional framework. However, populists often announce, at least rhetorically, a refounding of the state. Weyland has warned that ‘while populist attacks on democracy can start with ordinary legislation, they make real headway only through constitutional overhauls.’^[3] In such a case, ‘fundamental’ determinants of the state structure may be the target. Such a target may find its best realization in the constitutional dimension, although using the constitution as a channel of influence may also target less structural components of the state.

Addressing the confluence between populism and constitutionalism requires something that many scholars often sorely miss: a pure formal framework for addressing this confluence,^[4] which has not yet been directly addressed in the growing literature on this subject.^[5] A crucial blind spot that a purely formal framework can address is the ambiguity about whether scholars are referring to the link between populism and the constitution or between populism and constitutionalism. While the first connection is obvious in the question of constitution-making, the issue becomes more complex when considering constitutionalism, unless constitution and constitutionalism are not distinguished. If one accepts a distinction between constitution and constitutionalism,^[6] two basic concepts emerge that cannot be the same: populist constitution and populist constitutionalism. However, this crucial insight only emerges after a systematic examination of the formal congruencies between terms, concepts and contexts of meaning that characterize the interface between populism and constitution/constitutionalism is undertaken, before turning to the more normative debates around this interface. A pure formal framework can also help to avoid the confusion between ‘populism’ and ‘populist government.’^[7] And, more importantly, it can provide arguments against abandoning the search for the essence of social entities on the grounds that they always exist in variations in reality. In this respect, the purely formal approach is at odds with the insightful recent work of Tushnet and Bugaric, as it assumes that there is such a thing as constitutionalism ‘as such’ or populism ‘as such’. The purely formal approach also contradicts them by claiming that populism will inevitably collide with constitutionalism, albeit in a very complex way. From the perspective of a purely formal analysis, therefore, their claim that ‘some’ populism can be compatible with ‘some’ constitutionalism appears deceptive.^[8]

In conventional debates concerning the confluence of populism and constitution/constitutionalism some scholars assume that populism is in principled terms detrimental to (‘normative’) constitutionalism ‘understood as pluralism-preserving and rights-guaranteeing.’^[9] However, others may counter that, ‘the populist approach toward constitutionalism is […] not entirely negative, as […] becomes evident from […] constitution-making and constitutional reform […] in Latin America or East-Central Europe, in which populism is claimed to play a role.’^[10] Relatedly, some authors have argued that populism can be compatible with democracy,^[11] but without addressing whether this hypothesis has anything to say about the intersection of populism with constitutionalism. While these substantive debates are exciting, they are increasingly displacing a purely formal approach to understanding the interplay between populism and constitutionalism.

The aim of this article is consequently to outline a formal and highly stylized analytical framework for this interface, which abstractly maps the diverse, if not arbitrarily many, conceivable combinations between populism and constitution/constitutionalism. Such a strictly formalistic approach is certainly not only boring, but also insufficient to solve the thorny problem of populism coming into contact with constitutionalism. To some, this approach may seem like a play on words or too far removed from empirical cases. However, sometimes a pause in empirical work may be necessary to reflect on the more formal relationships at stake. As the article is more formal than substantive and empirical, the occasional references to some countries – in particular the cases of Hungary and Bolivia – are for illustrative purposes only and should even less be understood as part of a comparative analysis of any kind. Still, their cursory consideration, not only occasionally brings the dry formalist analysis back down to earth, but also anticipates that purely formalist frameworks will be useful for more empirical research in the future.

The following four working theses, underlying the formalistic framework, are proposed as a starting point: (1) Populist constitutionalism in the strict sense is a conceptual dead end,^[12] provided one overcomes a lax connotation of the term constitutionalism by assuming that it means the limitation of state power even if through non-liberal means;^[13] (2) What might be conceivable, is constitutional populism,^[14] which encompasses less demanding but efficacious instances of the relationship between populism and constitution than a hypothetical populist constitutionalism; (3) Within constitutional populism, the more relevant effects occur when genuine or at least populist-affine content is included in the constitution, which could lead even to a populist constitution if populism were to permeate most of the crucial structures of the state. Of course, a populist constitution would not imply that all of its contents are populist, but that most of its basic contents are truly populist and effectively regulate core elements of the political system. Needless to say, a populist constitution is only conceivable as long as the populist content introduced into the text does not call into question the fundamental ability of the constitution to limit the power of the state; (4) If populist content ultimately undermines the limiting effects of the constitution and only preserves its power-enabling virtues, the result would be a state whose supreme order would no longer be a constitution and thus constitutionalism would be even less possible.

In the following sections, the article will substantiate these assumptions by taking a different path from current research, relying on a formal combination of logical possibilities and creating a system of intensities, scopes, levels and scales as parameters for a better assessment of the formal relationship between populism and constitutionalism. This effort begins with the distinction between families of constitutionalism (Section 2). A comparison of the different intensities (low/medium/strong/strongest) associated with the most likely setting, namely constitutional populism, is then proposed (Section 3). From the multitude of these intensities, the strong and strongest variants of constitutional populism are filtered out and retained as the point of reference for the analysis. Within these strong and strongest variants of constitutional populism, the different scopes in which populism can influence the constitution and the state as a whole are then elaborated, from the extreme of the mere presence of some scattered populist elements in the constitution to the other extreme of a hypothetical constitution in which populist content permeates most state structures (Section 4). Only once these sections have been worked through can the question be addressed as to why a hypothetical populist constitutionalism seems nonsensical in contrast to the less demanding constitutional populism (Section 5). To complete this formal scheme, we discuss at which layers of the state can populism be influential (policy, regime or even the polity?) and through what kind of legal instruments this may happen (at the scale of laws, statutes or the constitution?). Combining these two perspectives of layers and scales with the findings on the different scopes within the strongest variant of constitutional populism identified in Section 4, a three-dimensional representation of the interface between populism and constitutionalism emerges that summarizes the findings. In Section 7, the article concludes the formalistic conceptual journey by discussing some of the risks of adjectivizing nouns in general. These warnings are formulated in a comparison of populist constitutionalism with other circulating cases of adjectival constitutionalism such as authoritarian constitutionalism.

This article uses the following working definition of populism, which deliberately simplifies the now almost unmanageable literature on this topic.^[15] Drawing on a combination of core arguments laid down in ‘social-movement,’^[16] strategical, ideological,^[17] discursive^[18] and stylistic^[19] oriented definitions, populism is understood as an enduring, non-elitist, massive social movement, contesting the political alienation of the rulers from the ruled and, consequently, challenging the institutional setting underlying both representation and the formal limitation of state power through counter-majoritarian devices, unless the institutions and limitations temporarily serve the interests of populism itself. Populism’s contestation implies a social movement that combines specific stylistic, strategic, organizational and, above all, ideological elements in an attempt to salvage fears and resentments of some sections of the governed, transforming them into an embarrassing discourse to legitimize the siege or entry into state power to redeem the people in politics, whereby the idea of ‘the people’ is not to be equated with the procedurally constructed demos that underlies democracy as a regime.

2 The Many Variants of Constitutionalism’s Meaning

Notwithstanding the fact that this article regards the idea of populist constitutionalism as misguided, the idea itself sometimes seems to be a kind of culmination point in current debates on the link between populism and the constitution. Before we delve into the matter, it therefore seems advisable to briefly recall what meanings the suffix-ism is intended to convey in connection with the constitution. The noun constitutionalism appears in at least four variants.

1. The simplest variant refers to any intellectual or factual activity that comes in touch with the phenomena ‘constitution’ in some systematic or at least concentrated manner.^[20] An example of this variant can be found in the various manuals that have the word constitutionalism in their titles.^[21] Regardless of how intensively and complexly these manuals will describe constitutionalism, we know from the outset that these works are not about, say, medicine.

2. The next variant involves using adjectives to place the phenomena of constitution in a more specialized context, whether geographically, temporally, or otherwise. Examples include concepts such as ‘Asian’ or ‘ancient’^[22] constitutionalism. But it also encompasses more sectorial approaches such as ‘social’ or ‘economic’ constitutionalism.

3. In the third variant, constitutionalism takes on an ideological, philosophical or normative sense, as in liberal constitutionalism. This variant also includes the intellectual advocacy to let ‘ordinary’ citizens become central actors of constitution-making. Such a view has been called ‘populist constitutionalism’^[23] or ‘popular constitutionalism’ and actually describes a specific academic school of thought.^[24] Therefore, ‘populist constitutionalism in this sense is about discourses and practices of constitutionalists’, not about ‘discourses and practices of populists.’^[25]

4. The most demanding variant refers to constitutionalism proper, or constitutionalism in the strict sense, and means the limitation of state power through a constitution,^[26] whereby, in my view, limitation appears as a value in itself and is not dependent on a liberal^[27] or any other kind of ideological underpinning.^[28] Since constitutionalism in this sense presupposes a detachment from an ideology, liberal constitutionalism cannot be a subtype of constitutionalism proper. While both may share the focus on limiting the state, liberal constitutionalism cannot endorse limitation of power without the liberal.

As far as the statement of the suffix-ism is concerned, the possibility of constitutional populism also belongs – like populist constitutionalism – to the third argumentation variant mentioned (c), in which not only descriptive but also normative claims are made. Constitutional populism arises when a social movement such as populism – in varying degrees of intensity and scope – uses the constitution to implement a political strategy directed at the state.

3 The Complexity of Constitutional Populism

The idea of constitutional populism does not mean that populism must engage politically with the constitutional dimension,^[29] not even when it reaches the government.^[30] Yet, when populists view the constitution itself as the arena of political struggle, a manifold of specific relationships between populism and constitution arise. Constitutional populism can adopt a low, medium, strong, and strongest intensity.

1. a low intensity of constitutional populism exists when populists use current constitutional rules^[31] to advance their political strategy and engage in public discussions concerning the country’s constitution. While constitutional populism does not only begin when populists enter the state apparatus,^[32] populists in government tend to have more opportunities to challenge the constitution.^[33] Importantly, populism’s stance is not rigid. Regardless of whether populists are in opposition or in power, populism seems to have an opportunistic attitude towards the constitution.^[34] Populism can applaud the (prevailing) constitution as long as it meets its goals.

   A more complex expression of constitutional populism is given when populism is not satisfied with coming to terms with the existing constitution and challenges it. At this stage, populism may influence the constitution procedurally or/and materially:

2. if populism does this only procedurally, by formally participating in the constitution-making process (e.g., through own delegates in a constituent assembly) though without influencing constitutional contents, then we have a medium intensity of constitutional populism, whereas if populism affects the contents^[35] of the constitutional text, we have a:

3. strong intensity of constitutional populism meaning that content is included in the constitution that, while not truly populist, would most likely not have been considered by the establishment if the populists had not exerted thematic pressure on the constitution-making process.^[36] In that sense, populism may, as anti-political-establishment actors à la Schedler do,^[37] ‘shake’ rather than ‘break’ the political system and ‘redefine the political agenda … ’, and even promote democracy instead of threatening it.

   If the concept of constitution-making is broadly defined, populism can also impact through judicial review. In such a case, populism can already affect a constitution through packing the constitutional court.^[38] However, the consideration of constitutional populism through judicial review holds only insofar as judicial review means affecting constitutional content as a consequence of populist pressure. If, at the instigation of populists, the reach of a constitutional court is merely curtailed in favor of the legislative, no constitutional populism emerges if the engagement of populism does not result in any change in content.

   The strongest intensity that constitutional populism can achieve is by:

4. influencing the constitution with genuine populists content. Some authors consider that populists do have ‘strong constitutional visions on how their own polities should be constituted.’^[39] If populists were indeed able to develop their own visions of the state in more than mere rhetorical terms, this would allow for what Walker calls the ‘commandeering’ strategy of populists in relation to the constitution (i.e., shaping the normative framework),^[40] whereby opposing commandeering to ‘circumventing’^[41] a pre-existent, still valid constitution.^[42]

By ‘genuine’ I mean a constitutional provision that is populism-specific, not just amenable to populism.^[43] I admit that it is not easy to distinguish genuine populist content from content that is not. For instance, Negretto lists an anti-individualist vision of rights, a majoritarian electoral system, and an enhancement of the national executive branch in detriment of the legislative, judiciary and local authorities as populist themes for constitutional reforms.^[44] Regrettably, he does not elaborate on how to recognize when these measures are genuinely populist, since they can also be supported by political groupings other than populist ones. The same ambiguity remains when Negretto expands these populist themes and mentions a ‘plebiscitarian and anti-parliamentarian democracy’ and a ‘communitarian vision of rights.’^[45] In fact, indigenous peoples may develop an anti-parliamentarian stance of self-government and still practice democracy^[46] without endorsing populism. Further, if plebiscitary methods include a president wining a recall,^[47] this may not only be constitutional^[48] but need not be a populist trait, but a form of ‘democratic innovation’ that goes beyond deliberative democracy.^[49] Negretto’s insinuation that the ‘communitarian vision of the right’ should be seen as a populist trait seems even less convincing. Indeed, while Negretto sees the idea of buen vivir included in the Ecuadorian constitution as an expression of a ‘communitarian view of rights,’^[50] it is misleading to consider this as a proof of populism, since the idea of buen vivir may belong to a different source of inspiration.^[51] Admittedly, one could attribute the communitarian view of rights to illiberalism rather than populism, but then immediately add that populism is illiberal per definitio. However, one can be illiberal without being populist and nevertheless support a ‘communitarian view of rights.’

Another example of a provision that is not necessarily populist would be reducing the scope of judicial review, as this could also be pursued by non-populist democratic forces seeking to reinforce the role of the legislative branch. A populist turnaround could only be achieved if the legislature itself were despised, as it is seen as an expression of the political elites. Consequently, measures such as weakened control of majoritarian government or a no ban on reelection are actually measures which are not inherent to populism. They have been since ever endorsed by other alternatives of political action, especially those aimed at improving the majoritarian core of democracy.

Hence, constitutional provisions reinforcing a simple majority rule, whether in a referendum or a constitutional amendment in parliament, do not make these constitutions populist. Not even if populists have pushed for these measures to be enshrined in the constitution. The point is that a referendum ordinary or not^[52] or deciding through simple majority of the parliament the change of state structures as in the UK,^[53] imply clear and stable procedures, a formal demos and the intervention of constituted powers. Precisely these kind of mechanisms (referendum, majoritarian decision rule) suppose a massive institutional setting – including the action of constituted powers, the formal demos, fair procedures – that at the end will inevitably irritate populism.^[54]

It is true that populists can support referendums and the like in their fight against the elites, but they will typically only do so as long as populism can gain electoral or representational advantages as a result, and as long as populism can credibly convey that its ideology fits a referendum (since it is a mechanism that mobilizes the electorate without the mediation of representatives) and fits a method of simple majority vote to change constitutions (since it avoids minority vetoes in this way). Since such mechanisms bring the people closer to power, populism can sell them as its projects for a while. Nevertheless, these mechanisms are only modalities within normal democracy. If advocated, they can lead to more direct democracy (referendum) and faster decisions (simple majority rule), thus challenging representative, liberal democracy without ending in populism. It is therefore too short-sighted to assume that measures such as reelection per se produce ‘populist constitutional clauses.’^[55] A populism-specific or genuine content could be, on the contrary, a constitutional article that eliminates the recruitment of positions in the judicial courts on the basis of expertise and opens them to ‘ordinary people.’ Another example could be populism’s attempts ‘in extreme cases’ to ‘constitutionalize its majority by dissociating people from any pretense to impartiality.’^[56]

It may be that populist constitutional content is inspired by isolated populists thinkers or politicians engaged in constitutional politics. However, if there is no social movement beyond these scattered interventions, populism proper would not be the main actor behind the constitutional changes. To speak of constitutional populism at its strongest intensity, the incorporation of genuine populist contents in the constitutional text must be the result of populism’s participation in the constitution-making process, and not the result of an accidental inclusion disconnected from any link to active political populism.

If we accept these premises, one cannot argue that constitutional populism lies, on the one hand, in the verticalist way in which populists treat their constituency during constitution-making and on the other hand, in populists’ disregard of the constitution they themselves have reformed.^[57] On the contrary, constitutional populism arises even if there is no ‘verticalist’ behavior of the populist leader in constitution-making and even if there is no disrespect for his own reformed constitution, provided populists make the constitution the object of political struggle.

4 The Varying Scope of Constitutional Populism in Its Strong and Strongest Intensities

I distinguish five scopes of incidence of (strong and strongest) constitutional populism. To illustrate, I take a conventional liberal constitution as the basis for comparison and then consider an increasing degree of influence of populism on the state until some structural principles of the state (democracy or not; rule of law or not; social constitutionalism or not; federalism or not) are affected.

• (Scope 1) a (liberal) constitution remains essentially unchanged, with predominantly liberal values prevailing in the constitution; nevertheless, genuine or non-genuine populist content has found its way into the state, coexisting with some other values that can be neither liberal nor populist;

• (Scope 2) a (liberal) constitution remains in place, but now a populist influence upon one structural principle of the state occurs even if only partial. For example, democracy remains democracy, but through the involvement of populism in constitution-making, democracy now includes more provisions for direct democracy, even though direct democracy as such is not a mechanism that would be inherent to populism.

• (Scope 3) a (liberal) constitution remains, but one structural principle has been entirely overturned due to populist influence. For instance, a democracy becomes a non-democracy, but within an otherwise still constitutional state;

• (Scope 4) a stalemate ‘hybrid’ state emerges, as more than one structural principle of the state is shaped according to populist schemes, but strong structural principles of the old state are still able to configure the state as much as the populist ones;

• (Scope 5) the structural principles influenced by populism clearly outweigh the few remaining non-populist structural principles, if they still exist at all; and given that the new foundations of the state, if structured primarily according to populist worldviews, will most likely undermine the constitution’s ability to limit power, the result would be a state governed by a supreme norm other than a constitution. I do not wish to enter into the debate as to whether this is bad or good, but simply describe an alternative way of organizing the state.

Let us now look at some cases to illustrate this rather abstract scheme. In the first scope, a populist movement has succeeded in introducing some contents of non-structural reach through the formal constitution-making process. While some may call the result an ‘illiberal constitution’, this seems exaggerated, as the constitution as a whole may remain liberal. This can be seen in the Hungarian case which has been linked to a mix between constitutionalism and populism.^[65] To contextualize this case a little, it suffices to recall that the parliament controlled by Victor Orbán’s Fidesz party adopted a new constitution in April 2011.^[66] Until then, the Hungarian constitution had been the constitution of the old regime since 1991, albeit with numerous amendments.^[67] Although the description of Hungary as a case of populist constitutionalism has been challenged,^[68] other authors still defend this thesis^[69] or at least claim that here a kind of ‘authoritarian populism’ emerged.^[70]

Suppose for the moment that populism has made constitutional inroads in Hungary. However, drawing on the Hungarian case, Pichl states,^[71] based on an analysis of authoritarianism, that Hungary’s constitution has retained ‘elements of liberalism.’ After Orbán’s reforms, Pichl says that ‘on the formal level the fundamental law of 2011 continues the tradition of liberal constitutionalism.’^[72] Thus, Pichl acknowledges that while the national avowal was more ‘pathetic’^[73] than the previous constitution, the new constitution adopted the universal nature of fundamental rights ‘nearly unchanged into the new constitution […].’ Uitz averts that the Hungarian constitution, even after its reform in 2011, ‘bears a family resemblance to contemporary democratic constitutions’^[74] and that ‘key constitutional institutions remained in place […].’^[75] In fact, it seems that even a ‘populist constitution’ may contain ‘liberal clauses’ as populists opportunistically instrumentalize them in their search for legitimacy.^[76] Looking at the Hungarian case, one gets the impression that although some populist content may have been included in the constitution, the constitution has remained liberal, which corresponds to scope 1.

To describe scope 2, assume now that despite some continuities, at least one structural principle of the Hungarian constitution has been touched, even if only partially, which means, for instance, that democracy remains intact but has turned into an ‘illiberal democracy’ due to some genuine populist content. In fact, Blokker assumes that forging illiberal democracy is a trait of contemporary populist constitutionalism.^[77] The ‘constitutional metamorphosis’ may then have led to an illiberal democracy, but without abolishing democracy altogether and without replacing all the other remaining structural principles of the former liberal framework.^[78] This seems to be the most that populism can achieve. Accordingly, Urbinati considers that populists, once in power, can ‘[…] even open the door to regime change.’^[79] Negretto argues that populism seeks to ‘substitute representative liberal democracy through plebiscitarian democracy.’^[80] All these changes seem to concern a structural principle of the state, namely the regime, but transforming it only partially.

Hence, it is possible that populism’s influence leads to changes of the regime, but not necessarily in the sense of transitioning from democracy to non-democracy, but from one kind of democracy to another. This corresponds to Mudde’s contention that populists only rarely seek ‘the end to democracy as such.’^[81] Regrettably, it is not always possible to ascertain whether scholars mean a disruptive regime change (from democracy to non-democracy) as in scope 3 or moderate regime change (from, e.g., representative to ‘post-liberal democracy’) as in scope 2. Take, for instance, Urbinati. She affirms, ‘if all the populist potentials were actualized it would replace representative democracy altogether and this would be a regime change.’^[82] In this sentence, it is not straightforward whether she means a disruptive regime change, i.e., moving towards non-democracy, or rather remaining somehow in democracy as a regime by diluting representative democracy in favor of direct democracy. In fact, elsewhere Urbinati suggests that populism will avoid regime change and rather attempt to change the constitution in order to ‘deflate’ law-making power of the parliament and strengthen ‘the power of the executive.’^[83] In my view, this would correspond to scope 1, in which some populist values are introduced into the constitution without altering the regime of the state as such. If the measures of populism would merely pretend to complement representative democracy,^[84] this would belong to either scope 1 or, if anything, to a non-disruptive kind of regime alteration as in scope 2. Needles to say, the overthrow of ruling elites^[85] as a goal of populism may not necessarily imply replacing the representative system. Hence, I do not consider here those goals of social movements aiming to replace a specific government,^[86] but only those impacts of populism on some specific state structures by modifying the constitution, including cases where a ‘wholesale replacement of the constitution’ is sought.^[87]

If scope 3 would mean a whole reversal of one structural principle (i.e., from democracy to non-democracy), let us now look at scope 4 in which a kind of stalemate emerges between the structural principles affected by populism and those not affected. Assume that the ‘anti-liberal’ character of populism clashes with both representation and constitutionalism.^[88] If one considers that representation relates more to democracy, whereas constitutionalism belongs to a different state subsystem encompassing specific mechanisms such as checks and balances, a successful populist replacement of representation and constitutionalism would imply changes in more than one structural principle of the state. This setting would correspond to scope 4, whereby more than one of the remaining structural principles are still liberal and remain as strong as the populist ones (hybridity). This stand-off of structural principles, which leads to state hybridity may seem very theoretical, but it is empirically demonstrable in the reality of constitution-making.

A possible example of a stalemate-hybridity seems to be the Bolivian Constitution of 2009, which belongs to the New Latin American Constitutionalism (NLAC)^[89] and has been seen as part of a ‘concerted turn to the left in Latin America’ known also as the ‘pink tide.’^[90] I take this example because NLAC has also been related to (left) populism^[91] or simple populism;^[92] because the changes were structurally far-reaching, if not innovative,^[93] and because constitutionalism, however understood, played a decisive role.^[94] This constitutional upheaval transformed the country from a multicultural to a plurinational state,^[95] from a unitary to a trisegmented non-federal state,^[96] and some even believe that a transition from a representative to a ‘post-liberal’^[97] democracy has taken place. Hence, at least three structural principles have been changed, leading apparently to a ‘hybrid’ constitution. The hybrid character is true if old ‘liberal’ structural principles are now accompanied by non-liberal ones. But these non-liberal ones must not have populism as their source. First, the transition to a neither unitary nor federal structure has nothing to do with populism or liberalism. Second, the change concerning the plurinational state could be seen as strongly non-liberal and disruptive, but I see no reason why this should automatically be attributed to a populist influence. Indeed, the structural recognition of indigenous people in Bolivia was not a populist idea.^[98] As for the third shift towards a post-liberal democracy, this seems to be an exaggeration, as the representative system is still predominant.^[99] If we hypothetically assume that the new forms of democracy introduced in the 2009 Bolivian constitution were a populist idea^[100] – which seems not to be the case – as they claim to overcome classical representative mediations, the result would be that populism achieved a meagre impact, since these new forms of democracy are barely determining in the overall functioning of the Bolivian state. In fact, the source of this shift, however its range, points more to a non-liberal direction using a radical left script^[101] or a participatory perspective^[102] than to populism. All in all, hybridity seems to be conceivable only in the case of plurinationality and post-liberalism, neither of which has anything to do with populism and whose impact is to weak as to lead to a stand off of state strutures.

In scope 5, the result of the constitution would go so far as to ensure the prevalence of state structural principles that are shaped according to the visions of populism. Müller believes that ‘those populists, who have enough power will seek to establish a new, populist constitution – in the sense of both a new socio-political settlement and a new set of rules for the political game.’^[103] However, Müller himself warns that this goal could be more difficult to achieve in reality. In fact, I do not believe that populists really aspire to realize a complete populist ‘constitution’ according to their model of society.^[104] I am skeptical about populism’s capability and interest in achieving a populist constitution, and about the feasibility of the latter. Even if populism were capable of reaching that aim, this possibility would at some point be thwarted by the fact that a constitution must have not only power-enabling but also power-limiting qualities. However, the latter are of no interest to populism. Should populism show approval of fundamental rights or rule of law, this is not a sincere interest, as they directly clash with populism’s principle of rejecting constitutionalism.^[105] Populism’s evasion of mediations goes so far that it not only aims to avoid institutional mediations as such, but to avoid mediations by other elites.^[106] Up to a point, populism may be less aggressive against conventional constitutionalism, but only because populists feel that it is not feasible to erase the liberal heritage, or out of pure opportunism.^[107]

The question of capability concerns the force of populism’s ideational schemes to reach a complete design of a populist state. A populist ‘constitution’ would imply not only having explicit content that is distinctively populist, but that the entire state architecture is now shaped mainly according to populist schemes. While it suffices that populism engages politically with the prevailing constitution without challenging it to speak of constitutional populism, only if this relation evolves to a complete reversion of a liberal structure of the entire state can it be assumed that a populist constitution has emerged. I then expect at least a supreme order that includes, for example, measures that constitutionally enshrine the principle that the preference of the people is not to be read from fair and free elections, but from how the leader interprets what the demos wants.^[108] Or I expect a constitutional article that explicitly prohibits any kind of selection of judges that denies ordinary people the chance to become judges, regardless of their expertise. To assume that populism is able to draft a populist constitution would conform Blokker’s assumption that there is such a thing as a ‘populist project of rebuilding the state.’^[109] However, while populism may have some clear ideas about how the people are to be understood in order to achieve an alleged better ideational construction of popular sovereignty, the question is whether this equals having a state vision and, if so, whether this vision is feasible.^[110]

Perhaps Mudde’s idea of populism as a ‘thin’ ideology^[111] alerts us that populism’s capacity to design a whole polity is rather unlikely. In his understanding, populism offers ‘few specific views on political institutional or socio-economic issues.’ In this sense, Aslanidis reminds us that Mudde’s approach points to populism being ‘of limited scope, complexity and ambition.’^[112] If this is true, then Weyland’s assumption that populism is inherently incapable of generating programmatic commitment is compelling.^[113] In fact, having a host ideology does not necessarily equate to having a comprehensive package of models and blueprints for the state, its institutions and precepts. It seems that this goal will barely be achievable for populism and its engagement with constitutions will most probably only reach the lower scopes of impact of constitutional populism. I think populists seldom have a ‘polity’ agenda because they lack the capabilities to design an entire state. Closely seen, even populist changes at the policy level seem difficult. Priester recalls, for instance, that populism is unable to offer ‘programs for single policy areas.’^[114] Peters and Pierre go even further: ‘Although populists often have a significant if unspecific policy agenda, as outsiders they may not have the expertise to design policies or to implement the policies.’^[115] A populist constitution seems therefore unlikely, if only because populist content would eventually remove the limiting function of the constitution, which makes the very idea of a constitution nonsensical.

5 Populist Constitutionalism as a Conceptual Dead-End

More unlikely than a populist constitution is a connection between populism and constitutionalism in the strict sense. While constitutionalism presupposes a constitution, it must itself be conspicuously distinguished from the constitution. Constitutionalism reflects only one of the grounding pillars of any constitution, namely constraining power. So if the constitution itself only pays lip service to the pillar of limitation or the rulers do not care about respecting this limiting pillar, then there is no constitution at all, not even illiberal or authoritarian.^[116] From this perspective, stability and institutionalization appear as derivate effects, and a link with democratic rules is not part of its definition.^[117] Stability must actually be given by the concept of the constitution itself before constitutionalism can be thought of, and to necessarily link constitutionalism with democracy would distort their intrinsic rationale. The point is that it will not be possible to find in populism’s ideological self-understanding the notion that limiting state power is a good in itself, which is precisely the essence of constitutionalism proper. Since populism by definition opposes veto powers curtailing popular sovereignty^[118] and any kind of ‘constraint of state power,’^[119] it seems that populism playing the game of constitutionalism understood in the strict sense is barely sustainable.^[120] One could argue that my claim of populism being against limiting state power is refuted by the fact that in reality populism has often been in favor of limiting power. For example, populism may advocate a limitation of activist judicial control or a limitation on the enactment of exceptional laws in the event of a pandemic.^[121] Populism’s endorsement of this kind of limitation, however, is far from advocating the limitation of state power as a value in itself, i.e., free of normative, ideological and opportunistic underpinnings, and so lauded that one would be willing to sacrifice one’s own beliefs just to uphold the principle of limiting state power in order to reap the specific benefits that come from limiting the state for the sake of limiting it.

There is also the thesis that the ‘populist’s stance towards constitutionalism is not one of straightforward rejection […] Populists are not against constitutions and constitutionalism as such.’^[122] Blokker too thinks that populism may not necessarily be against the idea of a constitutional order.^[123] He acknowledges that an ‘intrinsic part of populism concerns a form of legal skepticism’, meaning that ‘populists are wary of the institutions of and limits of liberal constitutionalism.’^[124] For Blokker, however, this does not mean that populism is against constitutionalism as such. Blokker adds that ‘populist constitutionalism’ can be understood as a ‘strongly critical countercurrent to modern constitutionalism in its liberal guise.’^[125] On closer inspection, Blokker’s mistake is to assume that populism is only opposed to liberal agreements, when in fact it is fundamentally opposed to restrictions on power – unless some restrictions might temporarily further populism’s own expectations – regardless of their source and nature. In other words, it is decisive to separate constitutionalism strictly understood from liberalism.^[126] Populism’s discomfort with the constraints of a liberal nature in the conventionally conceived constitution may disguise the fact that populism’s concern is actually related to the constraints of power, be they liberally inspired or not. Blokker focuses too much on the liberal, but tells us nothing about whether the populists’ challenge does not in the end unhinge the very idea of constitution, liberal or not. Increasing political involvement of populism in the drafting of constitutions does not rule out the possibility that the result could be the abolition of the idea of the constitution itself, even if a legal text is subsequently called a constitution for symbolic reasons.

A constitution comes into existence if not only power-enabling but also power-limiting qualities of the constitution are really given. If populism is opposed in principled terms to the constraints on power, even if these limits are not liberal in nature, then populism is not only against constitutionalism understood in the strict sense, but already against the very concept of constitution, regardless of whether this stance is good or bad. As soon as populism enters into the shaping of the macro-organization of its state and thus abolishes the limiting component of this design, we are merely dealing with a populist macro-rule of the state through an instrument that only remotely evokes something like a constitution. One should not, nevertheless, underestimate the legitimizing role of such an instrument, in spite of not really being a constitution. Calling it a ‘facade’ or ‘sham’ constitution only incites this underestimation.

6 Layers and Scales of State Exposure Through Populism

To round off the preceding conceptual model, I will now systematize the influence of populism on the state considering four layers of impact, ranging from the lower to higher aggregation: (a) administration; (b) policy; (c) regime; and (d) polity. At the same time, I would recall that populism can influence these layers of public authority through mechanisms other than the constitution (thus leaving the domain of constitutional populism), using instruments of lesser scale such as legislative statutes or even by-laws. Therefore, in addition to the layers, I also distinguish the scale of populism’s impact upon the state. I can now intersect both dimensions of layers and scale with the question of the scope presented above concerning the intensity of impact of constitutional populism in its strong and strongest variants. I propose to plot the variable of the layers on the Y-axis, the variable of scale on the X-axis, and the mentioned scope on the Z-axis, creating thus a three-dimensional space.

When populism meets the constitution, one can have in mind the image of populism seeking to change the polity – the highest layer – by changing the entire constitution – the highest scale – and overturning most structural principles – highest scope. Regardless of whether this is more rhetorical than feasible, the fact is that achieving this goal would mean forging a populist constitution, which I considered almost unlikely above. There are more plausible possibilities. For instance, when populism uses the constitution – the highest scale – to alter at least one structural principle such as the regime – a middle layer – , but only partially – low scope. Or when populism uses the constitution – the highest scale – to target state policy – a lower layer – while keeping the scope of change small. In terms of the layer of policies, this may mean that social movements such as populism do not necessarily want to extract new policies from the ruling elites, but rather defend pre-existing ones.^[127] If the populists were able to reform the electoral system – and thus influence the layer of the regime somewhere – through a law – a medium-scale instrument – by introducing a content whose effect does not greatly distort the related constitutional provisions that are in some way related to the electoral regimen, then the constitution would not necessarily be called into question. This would mean that populism seeks to shape reality through legal instruments other than the constitution, using some windows in the existing constitution to advance populism.

In this context, Aslanidis believes that ‘populist social movements’ are not only necessarily catch-all movements in terms of the size of their membership, but also necessarily movements pretending ‘a wholesale transformation of the political process that will reinstate popular sovereignty,’^[128] whereas other social movements target a ‘limited sector of policy-making.’ On the contrary, as the combinations of alternatives has shown, the possible settings allow for less dramatic outcomes. So, while I sustain that the target of populism is the representational gap, populism can also be content to influence a limited sector of policy-making as far as this narrows this political representational gap.

All of these examples are different from the case in which a non-populist social movement pretends to gain policy benefits for the poor social sectors during a constitution-making process. Here only policy and not polity aspects of the new constitution are influenced by the visions of the popular. This is the case when individual social programs are enshrined in the constitution of a liberal state. It may be that popular sectors mobilization may go so far as to introduce a ‘social state’ in the new constitution understood as a structural principle, which could correspond analytically to a middle scope of influence (see scope 3). The effect is that the influence now goes beyond constitutionally anchoring social programs and begins to tap into the state architecture that can support social policy in the long run, with the social subject being popular sectors rather than populism.

Having said that, two aspects need to be mentioned at least cursorily in this context. The first aspect concerns the topic of the effectivity of populism’s influence on the constitution, and the second refers to the conditions that must be given for populism’s influence to unfold good or bad impacts, for instance, at the layer of the regime. Whether a demand for a populist policy ends up being incorporated into the constitution is one thing; whether a new article gets implemented at all and ultimately impacts on the life of the people is another. In this context, Almeida speaks of micro, meso and macro levels of political and social life where movements may trigger change.^[129] Scholars have distinguished several stages of a movement’s success, starting with citizens being heard by policy makers, then getting them to place their demands on the political agenda, translating those demands into policies and enforcing those policies, and ending with the dismantling of the grievances that triggered the social movement in the first place.^[130] These stages are named as follows: access responsiveness, agenda responsiveness, policy responsiveness, output responsiveness and impact responsiveness. According to this scheme, output responsiveness (enforcement of legislation) needs to be analyzed, since pure policy responsiveness (a demand is translated into legislation) is too weak to guarantee impact responsiveness, although even successful implementation may not translate into an impact in the end.^[131] Taking this scheme, it seems plausible to assume that the more one moves towards ‘impact responsiveness’, both the chances of achieving this extreme as well as measuring it, become more demanding.

Amenta and Caren aver that social movements mostly focus on the ‘medium level’ or ‘intermediate level’^[132] when it comes to changes concerning policies and their implementation, rather than changes at a ‘structural or systemic level of state processes’ that comport a ‘metacollective benefit.’^[133] In such a case both the chances of real achievement and measurability are higher in the ‘medium level’ than when it comes to structural changes.

As far as the second aspect is concerned, it suffices to say at this point that a content ‘Y’ introduced by populists may be ‘no threat to democratic processes in […] political systems’ of type ‘X’, but may prove harmful in other political systems, depending to their history and culture.^[134] Similarly, populists can have different impact according to whether the country has a parliamentary system or a presidential system.^[135] Moreover, as Weyland has argued, ‘while institutional weakness is necessary for letting populist attacks on democracy proceed, this permissive cause is not sufficient on its own. Instead, liberal pluralism ‘dies’ only if the different types of institutional weakness intersect with specific conjunctural opportunities.’^[136]

7 The Six Risks Lurking Behind Adjectivization of Nouns with the Suffix-ism

In closing, I would like to recall that the notion of populist constitutionalism provides an opportunity to critically examine adjectivization of nouns with the suffix-ism more generally. This practice is fraught with risks which can be illustrated by comparing populist and authoritarian constitutionalism.

8 Conclusions

While populist constitutionalism is a conceptual dead end, because populism dislikes not any kind of limitation but the limitation of state power understood as a value in itself no matter if this limitation is of liberal nature or not – recognizing that under certain circumstances populism can temporarily advocate a limitation of state power if this is in the populist’s own interest – , this article illustrates how a less demanding phenomenon called constitutional populism is possible. The latter emerges when populism engages politically with the constitution. Thus, the realistic ambit of interaction between populism and the constitution is constitutional populism, whereby constitutional populism is a highly complex feature. Indeed, within constitutional populism low, medium, strong and strongest intensities of impact are distinguished. Within the range of strong and strongest intensities, many scopes of impact are possible depending on how populism has influenced the functioning of the state with genuinely populist content or at least populism-affine content. A populist constitution is theoretically possible but seems unlikely, since populism would have to retain the limiting quality of the constitution which is not of its genuine interest, and it lacks capacity to polity design. Our understanding of constitutional populism can be improved by combining these scopes of impact attributed to constitutional populism, with both the layers (is populism directed against politics, the regime or the polity?) and the scales (does populism impact through by-law, legislative statutes or the constitution?). The article concludes by pointing out the risks posed by the playful use of adjectives for the noun constitutionalism, which also threaten the more specific concept of populist constitutionalism.