Comparative Constitutional Law’s Blind Spot

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).

Martin Loughlin 

One of the most remarkable features of contemporary legal scholarship has been the rapid growth of comparative studies of constitutional law. Fuelled by the extending powers of constitutional courts, the increasing trade in the citation of legal authorities across jurisdictions, and the employment of similar, though highly abstract, interpretative techniques, the field would appear to be moving from strength to strength. Yet it is also in a curiously unsatisfactory condition. Lacking a clear conceptual framework and an authoritative method, it seems devoid of a sense of purpose. Constitutional scholars roam across an extensive panorama, on the way acquiring many exotic artefacts and fascinating nuggets of information. But to what end? Engaging in quantitative analysis, political scientists have been able to establish some useful comparative benchmarks, but lawyers hanker after something more meaningful. There is evidently a vague cosmopolitan slant to much of this work, though this is rarely made explicit and never systematically critiqued.

Such methodological issues do not trouble the authors of the book under review. Analysing one of the most salient trends in contemporary politics – the rise across the world of various forms of anti-liberal or authoritarian practices that are assumed to fall under the rubric of populism – they are motivated to ask a basic question: is populism inconsistent with constitutionalism?

The great bulk of the book (Part II: Populism in Practice) examines these constitutional developments in detail. Tushnet and Bugaric have gathered a terrific amount of information about the rise of populism, mainly across Europe and Latin America but also including studies of India, Israel and Turkey. Anyone interested in global developments in governing practices will learn from their descriptive and explanatory accounts. But do they provide a compelling answer to their main question?

The answer they do give is that contrary to a widespread assumption that populist movements are inconsistent with constitutionalism … it all depends. Associated with this apparent ambivalence is their refusal to offer precise definitions of the key concepts they study. Populism, they say, comes in a variety of types which lie at different points on the left/right political spectrum and although anti-institutionalism is ‘probably’ a common feature (p.75), authoritarianism and anti-pluralism ‘are not necessarily the key elements of populism’ (p.53). Similarly with constitutionalism, which is treated as a highly contestable notion.

Something is going on in the world, they are saying, but ‘we think that people should be able to talk about these political disagreements without dressing them up in fancy conceptual arguments about populism “as such” and constitutionalism “as such”.’ (p.1). They are therefore critical of the failure of contemporary critics ‘to grapple with populism’s diversity’ (p.229) and also of those who, presenting ‘thick’ accounts of constitutionalism, are too quick with precise answers. Their repeated message is: specifics matter.

Details obviously do matter but unless the concepts through which one makes sense of these goings-on are clearly specified, we will be left to wade through thick descriptions deprived of the tools needed to understand them. Conceptual frameworks – ideologies – provide us with a way of organizing social and political processes into meaningful arrangements. Such ideological constructions should certainly be held up for critical examination, but I cannot see how the inquiry can be advanced by a posture that denies their central significance.

To the extent that they recognize the need for certain benchmarks, that is, ‘some rough idea of what we mean by “constitutionalism”’ (p.9), Tushnet and Bugaric vaguely recognize this point. But they evidently hope to avoid being caught in the weeds of ideological discourse by advancing what they call a ‘thin’ account of constitutionalism, that is, ‘something like a least common denominator’ of the concept (p.11). In this respect, they are, I believe, mistaken. Their thin account comprises four elements: majority rule, organized political parties, judicial independence, and entrenchment. They justify this thin specification on the grounds that (i) if a thicker account is advanced ‘we’re going to end up with hundreds of competing definitions’, (ii) ‘thickly specified constitutionalisms … can’t be the basis for critical evaluation of constitutional developments’, and (iii) ‘only our thin constitutionalism supports criticisms that reach beyond the parochial views of what constitutionalism requires’ (pp.28-29).

Their first mistake is to assume that this thin account is a ‘least common denominator’, a narrow-gauge account which all students of the subject might accept. The problem is that it is just as contentious as any other of the ‘hundreds of competing definitions’. Their thin account of constitutionalism, for example, would not be accepted by Friedrich Hayek, the twentieth century’s most distinguished proponent of the concept. For Hayek – curiously not mentioned in the book – constitutionalism is a theory specifically devised to impose strict limitations on the power of majority rule. This is not a trivial point: underpinning it is his conviction that the main threat of oppression in modern government comes from the tendency to equate law to the command of a legislative majority. And that is not all. Notwithstanding their extensive discussions of recent developments in the United Kingdom, Tushnet and Bugaric’s thin definition, which includes ‘entrenched provisions [that] can’t be changed by the procedures used to enact and repeal ordinary laws’ (p.18), ends up excluding the UK from that category.

This brings me to the blind spot. In common with almost all contemporary comparative constitutional scholars, Tushnet and Bugaric assume that the concept of constitutionalism must somehow carry a positive connotation, that it is evidently a good thing. They are rightly critical of an implicit cosmopolitan assumption underpinning many studies in the field that quickly lead to populist political movements being assumed to be antithetical to constitutionalism. But being unable to question whether constitutionalism is itself a good thing, Tushnet and Bugaric then feel obliged to offer a thin account that might be compatible with aspects of these populist movements. The problem with this approach is that it drives them to present an account of constitutionalism that renders it indistinguishable not only from constitutional democracy but even from the most general ideas of constitutional government. They therefore end up with such a general conception that we are deprived of the possibility of using it to reach an insightful appreciation of what is going on. This is manifest in their surprising claim that: ‘Scores of books have been written offering scores of descriptions of constitutionalism’ (p.9). To the contrary: the most surprising thing is that, despite the many books written on other major political ideologies (nationalism, socialism, liberalism, feminism etc), no comparative constitutional scholar has yet sought to offer a systematic account of constitutionalism as a distinct ideology.

Any coherent account of the ideology of constitutionalism, I would argue, is obliged to modify Tushnet and Bugaric’s four elements and then extend them. Beyond the principles of majority rule, organized political parties, judicial independence, and minimal entrenchment (by which they mean only that some policies cannot be changed by simple majority), any account of constitutionalism must recognize that the constitution takes effect as higher-order law, is designed to protect basic rights, and assumes that the judiciary occupies a special role as guardian of this body of fundamental law. The failure to grasp this point (‘We’re agnostic on whether thin constitutionalism requires some form of constitutional review by the courts’ p.25) and to see that constitutionalism is not some vague liberal democratic aspiration but both an immensely powerful and deeply divisive philosophy of governing diminishes the book’s impact. It leads directly to their failure to examine the possibility that the many varieties of populism are, at least in part, a set of responses to the corrosive impact that this aberrant but powerful philosophy of governing has had in eroding the power of the idea that constitutional democracy expresses the collective self-government of a people.

My point is that constitutionalism is a specific philosophy of governing. It was designed in the late-eighteenth century to institute a regime of limited government that protected bourgeois liberties and, by the mid-twentieth century, was widely considered to be anachronistic. What is remarkable, however, is that during the last few decades it has been rejuvenated and, brought into alignment with contemporary power forces, is now providing the ideological justification for reshaping political regimes across the world. Driven by a rights revolution, constitutionalism acquires much of its power by being placed in the service of a neoliberal global movement.

The failure to grasp the significance of this global movement of which rampant constitutionalism forms one part also has implications for Tushnet and Bugaric’s treatment of populism. In focusing on such high-profile cases as Hungary, Poland, Venezuela and Bolivia in which it is not difficult to decry a growing authoritarianism, they fail to capture a much broader and deeper cleavage facing western societies. This cleavage arises from the general impact of globalization on western industrial economies, where it has led to growing income inequalities that are reinforced by intra-state regional disparities. That is, while the major metropolitan centres remain important nodes of wealth generation situated within an integrated global network, the peripheral industrial towns and cities of these states are languishing with high unemployment levels, low wage levels, and growing job insecurity. The political challenge facing constitutional democracies is starkly revealed once it is realized that the people who are the losers in these processes are in the majority.

Had Tushnet and Bugaric situated the extended power of constitutionalism within these global political and economic trends, they might have seen populism in a different light. The response of organized political parties on both the right and left to these trends has invariably been to coalesce on policies that embrace globalization and open statehood. This has led to their dismantling of the protections of the welfare state and the replacement of traditional class-based politics with a politics that embraces cultural diversity and promotes inclusion. And this has left the losers – comprising ordinary workers and lower-middle class employees – without effective means of political representation. Unable to express their voice through these organized representative channels, the majority are required to express their legitimate concerns through referendums such as Brexit vote in 2016, through newly formed or revived nationalist political parties, or through direct action movements like the gilet jaunes.  

The final part of Tushnet and Bugaric’s book purportedly addresses ‘constitutionalism after populism’ but it actually explores ways of reinvigorating the principle of democracy through such mechanisms as referendums, deliberative polling, and citizens assemblies. Important though it is to examine these innovations, the failure of the authors to grasp the essence of the ideology of constitutionalism results in them treating such innovations as devices learned from what they call some of the ‘better versions’ of populism rather than also being responses to the discontent about the growing influence of constitutionalism as a global phenomenon. Further, by avoiding examining the economic, political and cultural sources of emerging populisms, they fail to see that two of the four elements of their thin version of constitutionalism – majority rule and organized political parties – are rendered problematic by these recent political developments. Power to the People, it must be concluded, misses the key point that the growing influence of constitutionalism has had the effect of stripping power from the people. Notwithstanding the attempt to distance itself from the orthodox assumptions of comparative constitutional law, this is a blind spot that the book shares with that body of work.

Martin Loughlin is Professor of Public Law at the London School of Economics & Political Science. His book, Against Constitutionalism, is published by Harvard University Press in May 2022. You can reach him by e-mail at m.loughlin@lse.ac.uk.