A Bit More On Populism and Constitutionalism

Mark Tushnet

Following up on the review-symposium on Power to the People: Nicholas Reed Langen joins comments on our book with a review of Linda Greenhouse's Justice on the Brink, in Project Syndicate. 

We appreciate his somewhat approving description of our argument, but we do want to note some areas of disagreement. Against “some degree of accountability to the people” Langen opposes “accountability to law.” On the simplest level, we think that judges, who exercise power over the people, ought to have some degree of accountability to them, just as others who exercise such power do. And, the idea of “accountability to law” is actually quite complex, as we address in the book. To summarize a much longer argument: “Accountability to law” means, as Justice Barrett said in a recent speech, that judicial opinions must be recognizably “legal,” that is, use accepted forms of legal reasons. That of course rules out direct reference to the fact that the decision will benefit a specific political party but which – and this is the key – does allow for outcomes that the judges and objective observers believe will in fact benefit that political party. The current U.S. Supreme Court might well be “independent” in Reed Langen’s sense, but that’s hardly to say that it’s going to protect rather than undermine democracy here. 

We also think that Reed Langen underestimates the extent to which populists have “challenged real elites” rather than “fantasy ones” and minority groups.” Populists in Latin America, for example, whatever their other flaws, were clearly correct in saying that their nation’s politics had been dominated for decades and longer by wealthy elites to the practical exclusion of the region’s indigenous peoples. Our book cautions against using “Hungary and Poland” as a synecdoche for “populism,” and to urge readers to look at nation-specific details to get a better grasp on the relation between particular forms of populism and particular forms of constitutionalism.

Finally, we disagree with Reed Langen’s statement that “evidence suggests that populism is more useful and advantageous for illiberal authoritarians than for other kinds of politicians”.  We think it is not only historically inaccurate but also normatively flawed. There are historical examples of different forms of populism, like the New Deal in the US, which did not degenerate into authoritarianism and which actually helped the American democracy to survive the Depression. Looking at the current populist map, we can  find examples of similar democratic populists, who seek to protect and defend democracy by making it more responsive, equitable and inclusive (Sanders, Warren, Podemos, Syriza). There's nothing intrinsic to populism that makes it more “advantageous” for illiberal authoritarians.  Whether populism takes a democratic or an authoritarian turns mostly depends on the ideology that populists adopt as their own.