Antagonism v Irritation

Guest Blogger

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).

Colm Ó Cinnéide

Introduction: Why This Book is So Good

Mark Tushnet and Bojan Bugaric have done a great service. The arguments set out in Power to the People: Constitutionalism After Populism cut through the rhetorical fog that surrounds the concept of populism. In particular, they provide a calm and much-needed corrective to over-heated claims that populist politics are inherently ‘antithetical to constitutionalism’ (p. 36). Such claims are treated as axiomatic in much of the post-2016 deluge of academic commentary on populism. However, Tushnet and Bugaric prick this over-inflated conceptual bubble, and instead provide a radically different and much more convincing analysis of the populism/constitutionalism relationship.

As I read their book, their key arguments are as follows. (i) Populism as a mode or style of political mobilisation can take very different forms, and act as a vector for a broad range of different political ideologies. (ii) Populist movements interact with established state constitutional frameworks in a variety of different ways, usually reflecting the influence of their associated ‘host ideologies’. (iii) Such interaction can disrupt or destabilise such frameworks, sometimes generating new constitutional norms - but the aims, objectives and actions of populist actors in this regard are often entirely compatible with the basic, core, foundational set of liberal democratic constitutionalist norms, which Tushnet and Bugaric refer to as ‘thin constitutionalism’. (iv) There is thus nothing intrinsically antagonistic in the relationship between populism and constitutionalism - despite what the norm-shredding behaviour of a few specific populist politicians of an authoritarian bent, like Orbán and Bolsonaro, might suggest. (v) Expressions of concern about constitutionalism are often used as a ‘mask’ (p. 35) to conceal political disagreement with populist movements. (vi) More generally, demonisation of populism ignores its positive democratic potential. (vii) Greater democratisation all round, and in particular the development of new forms of direct democracy, offers the best inoculation against its more destructive variants.

In general, with some significant qualifications that I discuss below, I think these arguments are broadly convincing - and the book develops them with admirable clarity and precision. So, to show my critical appreciation for Tushnet and Bugaric’s work, I’m going to highlight three particular aspects of their analysis that I especially agree with, before moving on to sketch out where I disagree with them. I will then conclude with a brief comment about how I think the ‘populism versus constitutionalism’ debate may evolve in the future.

The Compatibility of Constitutionalism and Populism

I’ll begin with my points of particular positive endorsement. To start with, Tushnet and Bugaric are right to emphasise that populist themes recur repeatedly in democratic discourse, and have always done so. To illustrate this point, they mention Franklin Delano Roosevelt’s anti-elite rhetoric – but De Gaulle, Bevan, and De Valera could all be thrown into the mix from that general time period, not to mention the leaders of the emerging anti-colonial movements. More generally, it doesn’t require much digging to unearth populist tropes lurking in every corner of the political spectrum. Indeed, as Margaret Canovan famously argued, populism understood as an appeal to the people against ‘the established structure of power and the dominant ideas or values’ is always a potential part of the democratic repertoire – or, as Kalyvas puts it, is a perennially available ‘antisystem electoralist strategy…that is part of the technology of democratic competition’. Thus, as Tushnet and Bugaric argue, populist mobilisation reflects both the instability and vigour of the democratic process. Furthermore, it inevitably has resonance in the current era, given the persisting prevalence of technocratic governance and the dispersal of democratic accountability across multiple nodes of constitutional governance. As such, framing populism as inherently anti-constitutional risks demonising a significant mode of democratic discourse.

Secondly, Tushnet and Bugaric are also right to highlight that many forms of populist politics are entirely compatible with a commitment to ‘thin’ constitutionalism, understood to entail respect for basic principles such as majority rule, judicial independence and respect for core civil and political rights. Populists may often challenge existing configurations of constitutional governance, by e.g. seeking to limit judicial power, or alter the existing separation of powers. They may even seek fundamental changes to established constitutional architecture, or be willing to ‘break the guardrails’ that normally constrain the behaviour of political actors within a given constitutional system. However, that doesn’t by itself render their behaviour incompatible with basic liberal democratic norms: constitutional revision is prima facie a legitimate goal of political activity, as Tushnet and Bugaric argue. They acknowledge that populist movements have periodically crossed the line, and undermined core constitutional norms such as judicial independence. They also recognise and expand on Kim Lane Scheppele’s important argument that an assortment of constitutional revisions, each one innocuous and/or defensible when considered in isolation, may ultimately create a ‘Frankenstate’ where democratic norms are fundamentally corroded. But such concerns do not mean that any and all populist attempts to revise constitutional structures are inherently illegitimate – despite what much of the anti-populist rhetoric of recent years might suggest. 

Indeed, there is a real danger here of crying wolf. Not every populist leader shares Orbán’s desire to shake off the shackles of existing constitutional norms, or has the poisonous political ideology of a Bolsonaro. Furthermore, there is a danger in invoking the specter of Orbán to justify demands that all political mobilisation conform to the established contours of a state’s existing constitutional culture, as policed and patrolled by judges, lawyers and constitutional law academics. This potentially opens the door to a form of controlled democracy, or at least a questionably constrained sphere of political debate. 

Instead, as Tushent and Bugaric suggest, it is necessary to engage with specific variants of populism as they emerge in different states, and the host ideologies that animate them – rather than assuming their attitude towards existing constitutional norms will conform to some general model. This is the third point on which I am in particular agreement with the authors. In this regard, I’m particularly influenced by recent debates in the UK over the post-Brexit ideological trajectory of Boris Johnson’s Conservative government. Overwrought claims are made to the effect that the government has adopted Viktor Orbán’s right-populist playbook. In reality, their approach to questions of constitutional law is best viewed as a sui generis combination of traditional Tory political constitutionalism laced with the anti-institutional energy of post-2016 right nationalist populism. Adopting an identikit framing of populism, encompassing all political mobilisation that echoes some of its distinctive themes, is an error to be avoided.

The Problem of ‘Constitutional Irritation’

Having said all that, let me now turn to my points of disagreement. I would add an asterisk to Tushnet and Bugaric’s ‘relatively sanguine’ (p. 274) take on the relationship between populism and constitutionalism. I think they underestimate the extent to which populist politics may be difficult to reconcile with the functional and normative expectations that shape the institutional mechanisms of contemporary constitutional governance.

As Tushnet and Bugaric note, populists are often ‘impatient with institutions’ (p. 72). This does not particularly perturb them: constitutions need to be able to accommodate change, and the revision of existing veto points. But such anti-institutionalism can also destabilise the ‘ordinary’ functional structures of constitutional governance – in particular by undermining checks and balances and power-dispersal mechanisms that may play a useful role in maintaining both state legitimacy and public ordering.

Such mechanisms may not be essential to maintain basic democratic health, i.e. their existence may not be required by Tushnet and Bugaric’s ‘thin constitutionalism’. But they may nevertheless serve other important purposes – and populism’s anti-institutionalism may cut across their functioning, and call their legitimacy in question, without necessarily generating a change in the relevant institutional architecture. (An example of this is the UK government’s sustained, right-populist criticism of how the European Convention of Human Rights has been incorporated into UK law by the Human Rights Act 1998. These attacks have cast a shadow over the legitimacy of this important element of the UK’s constitutional governance. However, the government’s current reform proposals leave much of the legal status quo intact while amplifying the potential for inter-institutional conflict, meaning that the tensions surrounding UK human rights law will remain essentially unresolved.)

Furthermore, populist politicians often promise radical social change but struggle to deliver, usually as a result of the inevitably complex nature of modern governance. This can generate frustration and anger among their voters. It can also help to fuel wider patterns of social antagonism and political polarisation, which can again have a destabilising impact on the legitimacy and functioning of constitutional structures. (Again the UK provides illustrative examples of this. In particular, the protracted constitutional destabilisation that followed the 2016 Brexit referendum vote, and the ongoing slow motion constitutional crisis in Northern Ireland relating to the status of the Northern Ireland Protocol.)

Now, if I read Tushnet and Bugaric correctly, I think they would distinguish these various forms of constitutional irritation from more fundamental forms of constitutional antagonism – and treat the former as primarily political concerns that do not concern the core essence of ‘thin constitutionalism’. But I am not sure such watertight distinctions can be maintained. Constitutional norms may play a significant role in maintaining the health of ‘thin constitutionalism’ in a given jurisdiction, even if they are not foundational. And it seems to me that legitimate ‘constitutionalist’ criticisms could be directed at populist politics that corrode such norms, without replacing them with a more stable and settled democratic constitutional architecture. Also, in certain jurisdictions, such corrosion may well open the way for the creation over time of a Scheppelian-style ‘Frankenstate’ – with fair democratic competition, basic civil and political rights protection and other essential features of ‘thin constitutionalism’ being hollowed out over time, rather than being replaced incrementally by multiple small constitutional adjustments (which are the primary source of concern for Tushnet and Bugaric in this regard).

Furthermore, I do not share Tushnet and Bugaric’s belief that ‘more democratisation’ can necessarily provide easy solutions to such problems. Debilitating forms of ‘constitutional irritation’ can be difficult to resolve by the electoral process – in particular when they involve the interaction of multiple different layers of constitutional governance, where different international, national, regional and devolved entities may be able to invoke different sources of democratic authority, or where issues of minority rights protection enter the picture. (The Northern Ireland Protocol controversy is a particularly good example of this.) And the type of direct democracy initiatives particularly favoured by Tushnet and Bugaric have a very mixed record of providing clear resolutions to such issues. (Again, just sticking to UK examples, the messy aftermath of the 2016 Brexit referendum illustrates the problem here.)

Conclusion

Now, returning to the central theme of this excellent book, none of these concerns about constitutional irritation necessarily contradict Tushnet and Bugaric’s core arguments. Populism and constitutionalism are not inherently antagonistic, as they argue. But the populism/constitutionalism relationship can nevertheless be a difficult one, all the same. As a mode of political mobilisation, populism may be a better vehicle for deconstructing existing constitutional mechanisms than for constructively governing through them – which complicates any assessment of its balance-sheet. 

Indeed, I suspect this is one reason why right populism is flourishing much more than left populism (which is Tushnet and Bugaric’s preferred variant). Right populism often aims at seizing control over state structures, often with a view to propping up an allegedly endangered social and cultural status quo, while leaving most private market mechanisms to run themselves. However, left populism seeks to re-direct the activity of state structures so as to achieve wider forms of social transformation – which means that its ambitions can usually only be implemented via complex governance processes. I suspect this makes the problem of constitutional irritation inherently more challenging and difficult for left populism, and may in part explain the reluctance of so many left ‘progressives’ to get on board populist political mobilisations.

Indeed, in a few years, we may see the ‘populism good or bad’ debate give way to a more sustained focus on those specific strands of populism which are currently most thriving, namely those associated with the ‘host ideology’ of post-2016 right nationalism. But that is a line of analysis perhaps best left to political scientists, rather than a mere law professor like myself. For now, Tushnet and Bugaric’s superb book will remain the authoritative perspective on the populism/constitutionalism dynamic.

Colm Ó Cinnéide is Professor of Constitutional and Human Rights Law at the Faculty of Laws, UCL. You can reach him by e-mail at c.o'cinneide@ucl.ac.uk.