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.