Anti-system Politics and the Thin Constitution

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).

Richard Bellamy

Mark Tushnet and Bojan Bugaric's new book provides a welcome comparative perspective on the relations between populism and constitutionalism, which adds some much needed nuance to the discussion of the links between the two. I am broadly sympathetic to the direction of travel of their argument – not surprisingly, as my own thinking on this topic has been to a significant degree shaped by their work. However, I tend to approach this topic from the perspective of political theory and comparative political science rather than constitutional theory and comparative constitutional law, with my constitutional thinking framed by the UK context rather than the US. These differences of approach and context lead to certain differences of emphasis in our views, which I will relate below to a stress on the political dimension of constitutions and a preference for a political over a legal form of constitutionalism. While these are small differences, I hope I can avoid being too narcissistic about them in the manner that occasionally bedevils so much academic and political debate.

There are three main and related points I want to make in this comment. The first is to emphasise a little more the economic and political as well as the cultural drivers behind the different varieties of populism they identify. As Tushnet and Bugaric remark, these drivers can produce quite different forms of populism with regard to their ideology, policy objectives and type of organisation. As a result, it is misleading to regard populism as being by definition illiberal and anti-democratic. I agree. However, a common feature of these various forms of populism is that they are anti-system – that is anti the prevailing institutional forms of constitutional democracy. How far that opposition can be justified depends on whether the drivers are predominantly socio-cultural and illiberal or economic and social democratic. This issue relates to the second point, and my most significant difference with their analysis – their account of constitutionalism. Like others looking at democratic backsliding, they adopt a minimal ‘thin’ definition of constitutionalism. They contend this minimum reflects certain basic common empirical features of a working constitutional democracy. As such, it offers a less contentious and more neutral benchmark of constitutional propriety than one informed by a given philosophical ‘regulative ideal’ of constitutionalism. I doubt the normative and the empirical can be separated so easily. Moreover, the claim of populists is that the existing mechanisms of constitutional democracy, including those that form part of the minimum or thin constitution, serve certain normative purposes and are unresponsive to others. For example, a common objection among populists of left and right is that they serve a neo-liberal economic agenda. That criticism requires a normative as well as an empirical assessment. For example, it could be that a particular reasonable iteration of the empirical ‘thin’ core nevertheless falls short with regard to realising certain regulative ideals that could be legitimately associated with constitutionalism. If so, that minimum may itself be part of the problem. Anti-system politics may be justified if the system is deficient in its ability to secure certain core constitutional values. The final point asks how, if the system is broke, can it be fixed? As the authors note, there is a tradition of populist democratic constitutionalism in the United States. But perhaps that is a product of flaws in the US legal constitutional order, and other models – such as the UK’s political constitution - might offer remedies that might avoid certain problematic aspects of populism. In what follows, I shall develop each of these points some more.

Populism as Anti-system Politics

With regard to the nature of populism, Tushnet and Bugaric rightly complain it tends to be portrayed as being ‘by definition antithetical to constitutionalism’ (Tushnet and Bugaric 2022: 36). A number of scholars

are apt to describe populism in purely conceptual terms (e.g. Müller 2016), as a defective form of democracy, without reference to the particular social, economic and institutional drivers that might promote it or variations in its ideological colouring. It is thereby portrayed as an ever-present potential risk of mass politics that the constitutional constraints placed on popular democracy exist to curtail. Yet, once populism gets related to certain social and economic demands that the prevailing system has failed to respond to that presentation becomes more problematic. If these demands can be justified in terms of democratic norms, then the legitimacy of certain constitutional mechanisms can themselves be called into question.

As they report, political scientists are divided as to whether populism is driven by a socio-cultural backlash (Norris and Inglehart 2019) or an economic-political backlash (Hopkin 2020). The former certainly characterises the rhetoric of right-wing populism, which supports a return to traditional values, favours a patriarchal and even authoritarian social and political order, and is hostile to immigration, feminism and minority and gay rights. Populism of this hue is avowedly anti-liberal and anti-pluralist, adopts an exclusionary, xenophobic, ethno-nationalist view of the genuine ‘people’, and vilifies liberalism as an elite doctrine that favours minority groups that do not form part of the true ‘people’ of the nation. It appeals to older, less educated sections of society, especially white males, in rural and declining industrial areas. Yet, underlying this hostility to liberal cultural values lies a suspicion of features of the market system that are held to have promoted their diffusion – with industrial decline associated with a failure to put national and community interests first, and to favour cheap foreign manufacturing and immigrant labour over domestic industries and workers. As a result, it embraces protectionist and mercantilist policies alleged to put the nation and its people first.

This latter economic component, albeit modulated in somewhat different ways, plays a much more prominent role within the left-wing populism favoured by younger, well educated, urban groups. They focus on economic liberalism, the retrenchment of welfare and social spending, the lack of investment in public services and infrastructure, and growing inequality. They accuse the political elites of corruption and of being too closely tied to global financial markets and multinational corporations. However, they combine this critique of neo liberal economics with a social liberal attitude that is accepting and even promotive of minority rights and favours redistribution, greater inclusivity with regard to diversity, and a lessening of all forms of inequality.

The Thin Constitution as a Regulative Ideal

What unites these two versions of populism is their anti-system politics. In part, that involves a critique of the functioning of the four components of ‘thin constitutionalism’ identified by Tushnet and Bugaric: majority rule, entrenchment, judicial independence, and politicians and political parties. All four elements can be regarded as operating in ways that have given rise to populism. On the one hand, anti-system politics reflects how the policy space between politicians and political parties of the centre right and left have converged on a broader role for competitive markets, including in what had hitherto been regarded as non-market institutions – such as the police, prisons, public health services and education systems, and a consequent narrowing of electoral choice.  These policies have also brought with them a disinclination to increase progressive taxation to fund welfare measures, and growing income inequality. A system of majority – or, in the UK and USA, plurality – rule may operate in formal terms, but increasingly voters have become so disillusioned with democratic politics that barely a majority of eligible voters tend to participate in many elections (sometimes not even that). As a result, government policies rarely command the support of a majority of the population. On the other hand, these economic policies often get entrenched and further depoliticised by being in part operated by non-majoritarian regulative bodies, such as Central Banks and Courts.  In the wake of the 2008 Eurocrisis, for example, there have even been moves to constitutionally entrench commitments to keep national budgets balanced or in surplus (Bellamy and Weale 2015).

To the extent thin constitutionalism gets mobilised in ways that might justify certain populist critiques of how the prevailing legal and political system promotes a given economic agenda, then it forms part of the problem rather than the solution. As a result, it becomes necessary to look at how far it is inspired by a given ‘regulative ideal’. As Jeremy Waldron has noted, constitutionalism is often deployed as the ideology of limited, as in less or minimal, government (Waldron 2009). Even a thin constitutionalism can serve that goal. Yet, in doing so it supports a core driver of populism: namely, a political system in which governments of whatever party act, as Peter Mair (2013) put it, responsibly with regard to the views and interests of the main financial and economic institutions, rather than responsively to the interests and opinions of the public. As such, it serves to undermine the accountability of politicians to those they are supposed to serve.

However, an alternative regulative ideal of constitutionalism might be a view of non-arbitrary government. Here the goal is not less government, understood in libertarian terms as involving less interference with individual liberty, especially in the market, but rather of a non-dominating government, that is one that treats citizens as deserving equal concern and respect as autonomous agents (Pettit 2013). This goal need not entail less government – it may well require more. The key will be whether this more government can be justified to, and be influenced and controlled by, citizens as serving their collective purposes. In this case, the assessment of a given thin constitution will be how far it helps promote that process of mutual justification and public equality.

Varieties of Populism and Constitutionalism

As with definitions of populism, so with definitions of constitutionalism the normative presuppositions underlying the advocacy of any given constitutional arrangement - no matter how thin - need to be made clear. Would the view of a constitution as providing for non-arbitrary rule be compatible with either right-wing or left-wing populism? If the prevailing constitutional institutions – be they thick or thin - serve to establish an arbitrary form of limited government then, on this account, that would at least make populism an understandable reaction, and point to the need for reform. Nevertheless, understanding all, as the phrase goes, need not mean condoning all or even any of these reactions. As democratic backsliding regimes from Trump to Orban reveal, right wing populism can be exploited by leaders to establish arbitrary rule. As such, populism of this kind would be anti-constitutional on this account, even if – as the authors note – a feature of populism is that it often manages regime change through processes consistent with a thin constitution. After all, they win elections, pass constitutional amendments, appoint judges often all within the strict terms of the prevailing constitution. Yet, the purpose of these changes is to affect a shift from democratic to authoritarian rule.

What about left-wing populism? Tushnet and Bugaric have a certain sympathy for the US Populist Party of the nineteenth century and the popular mobilisation orchestrated by F. D. Roosevelt to secure the New Deal. The US also has a populist tradition of seeing ‘we the people’ as exercising constitutive power (Kramer 2005). Moreover, Tushnet has elsewhere advocated that progressives should be prepared to play constitutional hardball to take back the constitution from an increasingly right-wing populist Republican Party (Tushnet 2020). Consequently, the authors are well aware that the legal constitution can be weaponised and used to secure the hegemony of a party, even – or perhaps not least – when they are in danger of losing in politics.

However, it is precisely that possibility that leads me to focus on the political constitution (Bellamy 2007). I have suggested that it has been the breakdown of responsiveness in the political system, often aided and abetted by a constitutional culture and arrangements designed to limit government, that accounts for the recent rise of populism. Where the action lies, therefore, is in unblocking the political channels to a wider range of voices rather than capturing them anew for any one particular group. For on the arbitrary government account, it is only by allowing deliberation and contestation that arbitrariness can be overcome and equality secured. As such, attention needs to be paid to such issues as electoral rules, the devolving of power to different regions and municipalities, and the institutionalising of political balancing mechanisms. Indeed, it is these elements rather than courts, which are more easily captured, that have often proved the basis of successful resistance to democratic backsliding regimes. 

Conclusion 

In sum, I have suggested where the tensions between populism and constitutionalism lie is in the extent to which the former has produced the latter by institutionalising a certain form of arbitrary rule by what populists call elites – that of limited government. The solution, though, cannot be to similarly arbitrarily institutionalise a regime devoted to unlimited or extensive government through some form of progressive populism. Rather, the reforms need to be guided by the appropriate regulative ideal and achieved in a manner in conformity with it.

Bellamy, R. (2007) Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy, Cambridge: Cambridge University Press

Bellamy R and Weale A (2015) ‘Political Legitimacy and European Monetary union: Contracts, Constitutionalism and the Normative Logic of Two-level Games’, Journal of European Public Policy 22(2): 257–274.

Hopkin, J. (2020) Anti-system Politics: The Crisis of Market Liberalism in Rich Democracies, Oxford: Oxford University Press

Kramer, L. (2005) The People Themselves: Judicial review and Popular Constitutionalism, Oxford: Oxford University Press 

Norris, P, and Inglehart, R. (2019) Cultural Backlash: Trump, Brexit and Authoritarian Populism, Cambridge: Cambridge University Press

Mair, P. (2013) Ruling the Void, London: Verso Press

Müller, Jan Werner (2016) What is Populism?, Philadephia: University of Philadelphia Press

Pettit, P. (2013) On the People’s Terms:  Republican Theory and Model of Democracy, Cambridge: Cambridge University Press

Tushnet, M. (2020) Taking Back the Constitution, New Haven: Yale University Press

Tushnet, M.  and Bugaric, B. (2021) Power to the People, Oxford: Oxford University Press 

Waldron, ‘Constitutionalism: A Skeptical View’ in T. Christiano and J. Christman (eds), Contemporary Debates in Political Philosophy, Oxford: Wiley, 2009, ch. 15

Richard Bellamy is Professor of Political Science and University College, London (UCL). You can contact him at r.bellamy@ucl.ac.uk.