Power to the People: Democratic Populism or Egalitarian Liberalism?

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).

Rosalind Dixon 

In their important new book, Power to the People: Constitutionalism in the Age of Populism, Mark Tushnet and Bojan Bugaric offer a powerful defence of movements for popular constitutional and political change.[1] For every Donald Trump, Tushnet and Bugaric suggest, there is an Alexandria Ocasio-Cortez or Bernie Sanders waiting in the wings to save American democracy. 

Ditto in Europe: even if right-wing populists such as Viktor Orbán or Jaroslaw Kaczynski outweigh the number of left-wing populist leaders, it is still important to note the role played by leaders such as Greece’s Alexis Tsipras or Spain’s Pablo Iglesias Turrión in creating a new form of progressive politics in Europe.  And even “bad populists” such as Orbán or Kaczynski sometimes do “good things” in the name of populism – such as create new welfare programs that dramatically improve the economic bottom line of low- and middle-income households.[2] 

Power to the People thus helpfully reminds us that not all popular movements are bad for liberal democracy. In fact, some have the capacity to improve and revitalize democratic constitutionalism – and repair some of the damage done by corrupt and unresponsive elites, or the dogma of neoliberalism. 

On this, I could not agree more.  In a forthcoming book with Richard Holden, From Free to Fair Markets: Liberalism after COVID-19,[3] we argue that neoliberalism has more than had its day: its insistence on deregulation, austerity and the withdrawal of the state from the provision of core goods has left democratic voters worse off, and deeply disillusioned by the liberal democratic model. 

But we also suggest that there are ways to save liberalism consistent with democratic constitutionalism. Doing so requires going back to earlier versions of egalitarian liberalism that predominated in the progressive era and updating them to respond to current challenges such as wage stagnation, rising inequality and climate change. And this requires both big and bold policy ideas and sympathetic political leaders with the capacity to build a popular movement to support such policies.  Unlike democratic socialists, who often insist that all progressive policies should involve the direct state provision of core goods, Holden and I also insist that some goods are better provided via a mix of state provision and subsidies.[4] And subsidies of this kind can involve direct cash transfers to workers – such as in the form of an earned income tax credit, universal basic leave entitlements, subsidies for child-care or even a cash “dividend” linked to revenues from a carbon tax.

It is also not surprising that Tushnet and Bugaric should be the ones to make these points in a constitutional context: Tushnet has long been one of the most prominent advocates in the US and globally of a form of popular constitutionalism that involves “taking the constitution away from the courts”,[5] including via preference for political constitutional enforcement and weak form judicial review.[6]  He has a longstanding interest in socio-economic rights and the material dimension to democratic constitutionalism.^[7]  And as a founding member of the critical legal studies caucus, Tushnet has been a prominent critic of liberal – and especially neo-liberal models – of legalism.[8] 

My only reservation about Tushnet and Bugaric’s argument is whether the authors over-estimate the likelihood that populist forms of government – as opposed to pro-majoritarian, democratic liberal forms of politics– are likely to be both good for democracy and compatible with thin constitutionalism. 

Perhaps they can be, as the authors suggest. The authors provide a persuasive account of the different variants of populism, and their variable relationship to democratic constitutional commitments.  They also adopt an account of “thin constitutionalism” that has clear advantages in helping identify “good” versus “bad”, or pro- versus anti-constitutional, variants of populism. That definition centers on majority rule, constitutional entrenchment, judicial independence, and the organization of office-holders and office-seekers into parties (p 12). Tushnet and Bugaric further suggest that the idea of majority rule includes a commitment to “free and fair elections” (p 15). 

This account has important continuities with the relatively thin definition of democracy adopted by Ginsburg and Huq,[9] and earlier by David Landau and myself.[10] Landau and I call this the idea of the “democratic minimum core”.[11]  Our own definition emphasizes the important of free and fair elections, political rights and freedoms and institutional checks and balances – and hence both entrenchment, judicial independence and a broader range of “fourth branch” institutions of the kind Tushnet and others have been examining in other work.[12]  But the ideas are similar.  And Landau and I suggest that they can be justified not only by seeking, as Tushnet and Bugaric do, to identify an overlapping consensus among constitutional theorists about what democratic constitutionalism entails – but also among actual democracies about the practices necessary for well-functioning constitutional democracy.  We call this the idea of “transnational anchoring” in defining the democratic minimum core.[13] 

And importantly, Tushnet and Bugaric are careful to emphasize that bad populism can and does occur, and that recent changes to constitutional arrangements in countries such as Hungary and Poland are incompatible with even this quite thin definition of constitutionalism. 

The question is simply how often this is likely to occur. Tushnet and Bugaric rightly suggest it is an empirical question, which requires further study within the framework they provide.  But there is at least one reason in addition to the concerns often raised by critics of populism, that makes me sceptical of the likelihood of “good” populism as opposed to good fair market, pro-majoritarian policies: I worry that populism often involves an inherent short-termism in democratic decision-making. 

Populism, in this understanding, offers people what they want, now, not what they can afford to sustain over the long run. And because of this, it can readily be weaponized by would-be authoritarian leaders: it can be a means by which incumbent governments “buy” electoral support, but without any ongoing commitment to maintaining the policies that were promised as the condition of that support.[14] 

Think of a form of cash subsidy program: if the government offers all citizens an immediate cash subsidy, this can go a long way to encouraging them to vote for the incumbent party.  But the subsidy does little to improve democratic functioning – or create a more egalitarian, fair market version of liberalism – if the government later proceeds to impose additional taxes or remove other subsidies, in ways that offset the initial payment.  Similarly, if the payment is wholly fiscally unsustainable, the payment may lead to interest rate rises, or pressures from markets and lenders for increasing fiscal austerity, in ways that actively worsen the fairness of markets, and capacity of a society to deliver universal access to all. 

Tushnet and Bugaric note this danger.  But here, as elsewhere, they suggest that it is often harder to distinguish “good” from “bad” policies ex ante.  For instance, some policies are adopted in the hope they will become self-sustaining because they lead to greater investment, labor force participation or the like. And the sustainability of almost all economic policies depends on broader macro-economic conditions – both nationally and globally.  It is, therefore, often quite hard to determine their true sustainability ex ante. 

In a similar vein, Tushnet and Bugaric suggest that the “frankenstate” problem is often bigger than many scholars in the field credit:  what they mean by this is that it is often difficult, ex ante, to determine whether a seemingly innocuous legal or constitutional change will end up having so great a cumulative effect on democracy as to be incompatible with thin constitutionalism.  Most, including Scheppele, Khaitan, Landau and myself, think that it is possible in at least some cases to assess the likely cumulative threat to the democratic minimum core ex ante.[15]  Tushnet and Bugaric doubt that, in part because they place considerable weight on cases in which politics shifts back in favor of democratic preservation rather than erosion (think of the transition from Rafael Correa and Evo Morales to Lenín Moreno and Luis Arce, as opposed to from Hugo Chávez to Nicolás Maduro).[16] 

Perhaps one way to read Power to the People is that there are in fact both good and bad populists, but we will only know which type is operating after the fact. This also seems entirely plausible, but a troubling reading for those seeking to constrain bad populists ex ante. 

Power to the People should therefore encourage us to rethink our natural aversion toward populism and popular forms of democracy.  But it should also challenge us to think of whether there are better tools for determining when that aversion is justified – and doing so before it is too late to save thin constitutionalism, or the democratic minimum core from troubling forms of populist assault. 

Rosalind Dixon is a Professor of Law at the University of New South Wales and Director of the Gilbert + Tobin Centre of Public Law. You can reach her by e-mail at rosalind.dixon@unsw.edu.au.