Populists and Populisms

Mark Graber

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). 

The publication of Professor Tushnet’s new book with Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism provides an opportunity to return to the questions of constitutional populism that occupied Professor Tushnet and me, if briefly, more than twenty years ago.  Much has changed in that time period.  Our previous interchange focused primarily on populism as populist movements were understood in the United States.  Populists in the American tradition pledged allegiance to liberal democracy and the Constitution of the United States.  Debate was over the merits of various populist reforms, such as the income tax, and whether populist attacks on judicial review were consistent with constitutionalism.  During the first quarter of the twenty-first century, scholarly concern with populism moved from the United States to Europe and Latin America.  Scholarly commentary that once worried that populism might be too democratic now worries that populism might not be democratic enough.  Victor Orban has replaced William Jennings Bryan as the epitome of a populist leader.  Focusing on the Hungarian and related contemporary examples, leading commentaries on populism, most notably works by Cas Mudde and Jan-Werner Muller, offer understandings of populism that suggest not only that Professor Tushnet is not a populist, but that the members of the Populist Party in the United States were not really populists. 

Power to People challenges this perspective.  Professors Tushnet and Bugaric insist that populism comes in many flavors and that many flavors taste as constitutionally democratic as the alternatives they seek to supplant.  You may prefer the traditional chocolate cone to the contemporary mix three flavors, add a brownie, and stick everything in a waffle cone with chocolate sprinkles, but both are ice creams.  We are best off debating whether one tastes better than the other than which is more ice creamy.  Same with populist and other understandings of constitutional democracy.  Professors Tushnet and Bugaric may define populism too thinly, but their thinking now strikes me as at the core of two fairly thick and related strands of both American populist movements of the past and the populist movements throughout the world in the present. The first concerns the balance between democratic contestation and entrenchment.  The second concerns the role of elites in constitutional democracy.

One crucial feature of populism is that populists prefer to maximize democratic contestation and minimize entrenchments.  Populists prefer that questions about whether government should forbid hate speech be settled by popular majorities in the present rather than by a constitutional provision entrenched in the past.  Of course, if popular majorities vote to forbid core political speech, democratic contestation will be at an end.  Still, populists have three responses to that challenge.  First, inflated rhetoric aside, elected officials in contemporary constitutional democracies are not prohibiting speech in ways that threaten constitutional democracy.  Democratic government will flourish even if persons are not allowed to say racial epithets in some communities and high schoolers do not have access to the work of Derrick Bell in others.  Second, as campaign finance decisions in the United States highlight, free speech entrenchments or the institutions interpreting free speech entrenchments may be as much, if not a greater threat to constitutional democracy than popular contestation over free speech issues.  No one disputes we should entrench the good, but whether the good is what most constitutions entrench is an open question, a question that becomes further complicated when we give some persons special power to implement those entrenchments. Third, authoritarians who under the populist mantle undermine democratic contestation are authoritarians and not populists.  The Supreme Court of the United States, Victor Orban in Hungary, and the right-wing proponents of new Basic Laws on the Jewish State in Israel seem as much interested in entrenching their political vision as James Madison.  To the extent the populist persuasion is suspicious of entrenchment, the better approach is to classify Orban, the Roberts Court, and others as authoritarian, treat their vices as the vices of authoritarianism, and engage separately in the more productive populist debate over the balance between democratic contestation and entrenchment in a constitutional democracy.

Populists would undermine the privileged position of certain elites, a position they believe is too often entrenched in contemporary constitutionalism.   Constitutional populism rejects the notion that governing requires special skills.  Particular government jobs require special expertise not possessed by ordinary persons.  The ambassador to France should know how to speak French. The person who repairs federal aircraft should know more about airplane mechanics than the average professor of constitutional law.  Still, many populists insist expertise is democratically overrated.  There is no natural aristocracy with the capacities necessary to fill vital government positions.  The vast majority of people are capable of learning to speak French, to repair airplanes or, for that matter, to teach constitutional law.  More to the point, there is no small set of people more capable than others “of discerning afresh and of articulating and developing impersonal and durable principles of constitutional law.” There are no institutions that fashion a small set of people more capable than others of serving this function.  The people as a whole have the same capacity as any small elite of discerning what constitutes the public interest, the people as a whole have the same capacity as any small elite of discerning the means that will best achieve the public interest, and the people as a whole have the same capacity as any small elite of serving the public interest.

The populist persuasion runs into democratic trouble because of an underappreciated affinity between many versions of populism and progressivism.  As Michael Kazin points out, historical populism rarely considered the people to be the entire populace.  The claim was not that everyone had equal capacity to rule, but that ordinary people had special capacities to rule.  Nine people taken from the Cambridge phone book would govern better than nine Harvard Law professors, not just as well.  Ordinary people had special capacity to rule because they were some combination of men, white, Protestant, and workers.  Populist movements were populist because the ordinary people with the actual special capacities to govern were more numerous than the elite who only pretended to have those special capacities.  Far more people in antebellum America, for example, were small farmers than slaveholders or bankers.

Power to the People insists no person has a special province for governing.  The analysis provides an important context for Professor Tushnet's famed analysis of the Supreme Court that concluded justices have no special talent for discerning fundamental principles.  The Supreme Court, he points out, does a better job following the election returns than “articulating and developing impersonal and durable principles of constitutional law.”  Judicial review over history, Professor Tushnet claims, amounts mostly to “noise about the median.”  The point many (or at least me) missed twenty years ago is that Professor Tushnet’s critique of judicial review is embedded in a broader critique of expertise in government and not simply rooted in a commitment to majority rule per se.  Unlike other critics of judicial review, Professor Tushnet and now Professor Bugaric, are critics of technocracy. Experts, they insist, given a privileged position are as likely to act on their professional interests as impersonally serve the public good.  During a pandemic, experts inflate certain findings in order to convince the public to do what they think is best.  Doctors champion funneling more money to research when that money might be best spent on hiring and protecting more nurses.  Professors Tushnet and Bugaric do not object to having experts in government, but they should receive no more leeway than anyone else.  The democratic public should have the same right to oversee the expert economist in the Federal Reserve as they have to oversee the expert mechanic in the Air Force. 

A progressive might ask several related questions of this egalitarian vision.  The tame question begins with E.E. Schattschneider’s observation that “all politics is the mobilization of bias.”  If political structures inevitably privilege some persons and interests, do such egalitarian populists as Tushnet and Bugaric need to more openly acknowledge the persons and interests likely to be privileged by their version of populist constitutional democracy.  The edgier question begins with Robert Michels' iron law of oligarchy, that all forms of organization have a tendency to become status hierarchies.  If, as Michels insists, political organizations inevitably spawn elites, might we be more self-conscious about the elites populist constitutional democracy is likely to generate. We might finally turn to Aristotle and ask about any tendency for populist constitutional democracy to degenerate into less attractive and more ascriptive forms of governance.  Progressive democracy may be better not in the abstract, but because degeneration is less likely and less fatal to constitutional democracy.

Whether the inclusive/pluralist strand of populism in practice has a tendency to degenerate into the antipluralist strand is the sort of empirical question about constitutionalism Power to the People regards as far more central to the constitutionalist enterprise than abstract speculation about the benefits of different forms of constitutional democracy or debates over nomenclature.  Perhaps all strands of constitutional progressivism in practice have a similar tendency to degenerate into dictatorship.  Perhaps all attractive political schemes in practice have a tendency to degenerate into something worse.  Asking these questions may help us gain more insights into how constitutional democracies work and how we might enable constitutional democracies to work better.  But whatever knowledge we gain, Professors Tushnet and Bugaric will remind us, is likely to be tentative, subject to revision in light of further investigation, and only politically salient if we can convince a majority of our fellow citizens of our uncertain truths.