Constitutionalism after Populism: Empowering Which Democracy?

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).

Silvia Suteu

Tushnet and Bugaric offer a welcome reassessment of our understanding of populism in a constitutional key. In their Power to the People: Constitutionalism after Populism, they argue against easy assumptions about what populism is and isn’t, and in particular “write against a background of popular and academic publications arguing that populism is by definition antithetical to constitutionalism.” (36) Their monograph proposes to take seriously both the populist critiques of liberal constitutionalism and the alternative visions of constitutionalism the populists put forth. In that sense, they reject the notion – advanced by Jan-Werner Müller and others – that populists are by definition anti-constitutionalists. Instead, they echo Robert Howse, who has argued that anti-populists seeking to defend elite liberal democratic politics mischaracterise populism in purely pejorative terms, as synonymous with mob rule. Like Howse, Tushnet and Bugaric are interested in rescuing the radical democratic potential of populism and “are sympathetic to many aspects of progressive populist programs.” (2) They argue that there are different types of populisms out there, and selection bias has meant that analyses so far have overemphasised authoritarian versions – especially the cases of Hungary and Poland – and underemphasised progressive ones – such as Syriza in Greece, Podemos in Spain, and several Latin American examples. (44) Instead, the authors view populism as coming in both democratic and authoritarian varieties, and compatible with a host of ideologies, making easy generalisations a mistake. (45)

In this contribution, I want to focus on Part III of their book, which also gives its subtitle. More specifically, I’d like to engage with arguments the authors raise in the final chapter, on ‘Empowered Democracy’, about the potential for democratic renewal after the populist challenge. This is where they look at the constitutional tools employed and the type of democracy embraced by progressive populists. In particular, they focus on populists’ supposed affinity for direct democracy, especially the referendum. Contrary to the views of scholars like Nadia Urbinati and, again, Müller, Tushnet and Bugaric believe populists not to have a plebiscitarian penchant for its own sake. Instead, they argue that “populists in Greece and Spain used direct democracy precisely because they wanted to “deepen” sometimes too rigid and unresponsive channels of representative democracy.” (147) For Tushnet and Bugaric, in other words, direct democratic mechanisms are not in opposition to representative democracy; the referendum is not an inherently evil tool of decision-making; and progressive populists are interested in engaging the electorate directly because they are committed to the idea of self-government and because they believe, unlike elitist liberal democrats, that ordinary citizens have relevant policy expertise worth tapping into.

As a democratic constitutionalist myself, I find much to agree with here. As I have argued elsewhere, we ignore populists’ critiques of liberal constitutionalism at our own risk. These include fierce attacks on the rise of technocracy, pushback against the retreat of politics from policymaking, and an overt rejection of the project of globalisation in the name of national economic (and often identitarian) retrenchment. There is a reason this discourse resonates with voters, especially in places where they have felt systematically sidelined, and a committed democrat should be able to provide a better answer to these woes, rather than simply ignore them. In short, then, I agree with Tushnet and Bugaric that constitutionalism after populism has the potential to be more genuinely democratic and inclusive. However, I believe their analysis – in Chapter 10 of the book in particular – rests on two main misconceptions: one rooted in oversimplification and one in nondifferentiation.

1. Oversimplification: populists and referendums

The authors focus on the referendum as the main tool of direct democracy, and implicitly self-government, that populists are prone to use in decision-making. They seek to rescue it from criticism that it is an inherently flawed mechanism of decision-making, and instead view it as “only one of the tools available for populists seeking to determine what a majority prefers”, and even that on only a subset of policy issues. (260) But to suggest the only, or even main, reason why populists, and indeed any politician, will put an issue to a referendum is to determine majority views on a given question is to miss the special appeal of referendums. Referendums could easily (and much more cheaply) be replaced by national opinion polls if that were the case.

Instead, it is the special claim to democratic legitimation that a referendum vote can bring that makes it appealing. All parties will try to shape public opinion during the referendum campaign, not just gauge it dispassionately, and may use unfair tactics to do so. Even less nefariously, the referendum may be used as a way for politicians to eschew responsibility for unpopular decisions (e.g. on abortion or same-sex marriage), to break political deadlock or rework the political rules of the game (e.g. changing the electoral system), or even for inner party reasons, to settle internal competition (e.g. as the Brexit referendum started out). All of this to say that, even during ‘normal’ times of representative politics, the recourse to referendum is more complex and potentially instrumental than the authors’ account acknowledges. I see no reason to believe populists’ use of the referendum is somehow purer or insulated from party politics and political self-interest.

Elsewhere, the authors also equate referendums with a form of direct policymaking by the people: “Legislation by the people themselves may be the cleanest example of populism”. (252) This, connected to their view of (progressive) populists as singularly committed to maximising self-government, make referendums especially appealing to the populist as democrat. However, arguing that referendums may be democratic instruments need not require us to go as far as identifying them with popular authorship as such. Not just because referendums are prone to manipulation and elite control, but also because the very decision of putting an issue to the people is not open to all. Rules will differ greatly across systems on the right to initiate a referendum (most often resting with the political branches) and may leave much wiggle room; assessing populists’ relationship to referendums solely on the basis of whether they have put a particular issue to a popular vote therefore risks ignoring the politics surrounding that initial decision.

To illustrate these points, we can look at some examples Tushnet and Bugaric themselves consider. They point to Ireland’s successful legalisation of same-sex marriage and liberalisation of access to abortion through referendums as examples of the instrument’s success, not least in advancing, rather than stifling, minority rights. (259) To the authors, the embrace of citizens’ assemblies in addition to the constitutionally-mandated referendums on constitutional change in Ireland meant that “Ireland did see a political party taking direct democracy as part of its program and to that extent saw an existing party become more populist.” (270) However, there is a different way to tell the story of both Irish referendums that raises doubts about them as the means of choice to effect legal change. In both instances, groups previously excluded from full rights recognition were forced to argue for their accession to full citizenship. This in itself caused harm, reinforcing as it did the notion that the LGBT community and women would need to persuade the majority in order to be granted full equality before the law. Seen from this perspective then, the minority rights-based objection to referendums is harder to dismiss than Tushnet and Bugaric acknowledge. It’s precisely the majoritarianism reinforced by the referendum that is the problem.

2. Non-diferentiation: populists as direct or deliberative democrats?

Briefly on the second misconception now. The authors discuss direct and deliberative democracy interchangeably, and count the turn to deliberative mechanisms such as citizens’ assemblies and deliberative polling together with the use of referendums as part of populists’ entrusting of ordinary people with decision-making capacity. This would read as an at least unorthodox understanding of deliberative tools, seeing as deliberative democracy has long been accused of precisely the type of elitism populists want to overcome. The small size of deliberative exercises such as citizens’ assembly at the very least raises doubts as to whether they are participatory instruments in the way referendums are. Tushnet and Bugaric simply assume the problem of scale can be overcome, and even believe “citizens’ assemblies are designed precisely so they can be scaled up.” (262)

This is not the case. In fact, the scaling up problem persists in deliberative democracy, even while the spread of the use of deliberative mechanisms allows for more evidence gathering and experimentation. In the authors’ own cited case of Ireland, where a constitutional convention and a citizens’ assembly preceded the same-sex marriage and abortion referendum votes respectively, it is unclear what impact the micro-deliberative stage had on the outcome. In the latter case, the assembly recommendation – to abolish the constitutional ban on abortion entirely – actually exceeded expectations of how radical a change it might prompt. But in both instances, and certainly in the former, it was the referendum campaigns rather than the convention/assembly deliberations that galvanised the public. How much voters actually knew or cared about the preceding small size deliberative stages was unclear.

This is why, together with Stephen Tierney, I previously argued that democratic legitimation and an approximation of demotic authorship requires both the micro and the macro levels, both small scale deliberative exercises like citizens’ assemblies and large scale ones like referendums. One allows for the intense exchange of views under conditions of reciprocity, to which participants come open to changing their mind but also endowed, at least to an extent, with agenda-setting powers; the other entails societal debate on a single question that will take the majority’s pulse and (if done right) engender acceptance of the outcome of the vote. The latter is obviously appealing to populists; the latter less so.

Why does all this matter to the authors’ argument then? They acknowledge that populists don’t seem to have, at least so far, made use of these deliberative innovations. (269) To Tushnet and Bugaric, however, the main criterion for evaluating these innovations as instruments of democratic empowerment is comparative vis-à-vis existing representative institutions. As long as innovations lead to “more democracy than we have now”, they are presumed to be both compatible with existing structures and desirable. (271) However, this undifferentiated account of direct and deliberative mechanisms misses an important distinction, one that matters to populists. As Tierney and I have argued, the two “pursue different goals, operate based on different dynamics, and are more suited towards producing certain types of goods and not others.” (860) Because of this, direct and deliberative democratic tools are better thought of as complementary but nevertheless different, with the better focus on their sequencing so as to harness their respective and combined potential. It is not coincidental that Tushnet and Bugaric can find numerous examples of populist recourse to the referendum but not of democratic innovations. The majoritarianism of the former can sit ill at ease with and even undo the gains of small-scale deliberative structures. So long as it is majoritarian decision-making the populists are after, they won’t be likely to find much use for mechanisms of deliberative rather than direct democracy.

Dr Silvia Suteu, Associate Professor, University College London, UK, s.suteu@ucl.ac.uk.