Wednesday, March 09, 2022

Power to the People? A Missed Opportunity

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).

Michael A Wilkinson 
With Power to the People: Constitutionalism in the Age of Populism, Tushnet and Bugaric have written a refreshing book, avoiding the clichés so often associated with scholarship on populism. They offer a variegated analysis, which integrates the potential as well as the pitfalls of populism, and signal greater awareness of its complexity. Yet although promising much, the book is ultimately a missed opportunity. This is largely due to its approach to the topic. In attempting to bridge the gap between analytical method and comparative analysis there is too much that is left conceptually unexplained and not enough that is sufficiently contextualised: not enough clarity of terms for an analytical study; insufficient depth for a historical one. The end result is that by the end of the book we know that populism is a highly contingent phenomenon, but relatively little about the phenomenon itself.  
The mistake begins early and affects the enterprise as a whole. Although eclectic in its case-studies, Power to the People views populism through such a narrow conceptual lens - its relationship to constitutionalism -, that the view is in fact highly restricted. By putting two quite vague, abstract and ill-defined notions in conversation with each other, it is hard to draw any definitive conclusions, beyond the claim that the relationship between populism and constitutionalism is not as clear-cut as many suggest. On this, I would concur. And they do render a service by showing that populism is more complex than much of the conventional literature allows; that it comes in democratic as well as authoritarian variants (without saying much about those terms); and that it is not necessarily a threat to ‘good government’ (without saying what that means).
But the authors don’t really tell us what populism is, often focusing instead on what it isn’t, or more precisely what it sometimes isn’t. Here are some examples taken from the book: ‘sometimes populist governments act in anti-constitutional ways and sometimes they do not’ (p 38); ‘the claim that populists are anti-pluralist requires empirical support that hasn’t been provided yet’ (p 66); ‘sometimes populists treat all opposition as legitimate’, ‘sometimes populists treat opposition as ordinary political disagreement’ (p 68); ‘“leaderism” is neither always associated with populism, nor unique to it’ (p 71); yes populism is probably anti-institutionalist, but that should not necessarily be a concern (p 75); ‘do populist governments threaten judicial independence? Maybe, maybe not’ (p 168). The point is not that I disagree with the tentative evaluations of populism; the point is that they are, to my mind, rather trivial. I will return to what is missing from their analysis below. In short, it is the relationship with democracy and political economy.Where the book is therefore properly pitched is against the literature on populism that takes it to be necessarily anti-constitutional and takes that to be necessarily a bad thing; in their words, against the common view that ‘populism as such is inconsistent with constitutionalism’ (p 1). For those, presumably not few, at least beyond the ivory towers of liberal academia, who are indifferent to constitutionalism, or even consider it a troubling phenomenon, the book has little to say. And even if one were to consider constitutionalism necessarily a good thing, and draw the conclusion from the book that, after all, populism is not necessarily anti-constitutional, there may be other reasons to be concerned about populism, which its relationship with constitutionalism has less direct bearing on.
Let me take one such reason, democracy, and consider its relationship with constitutionalism. The authors use a thin notion of constitutionalism, which is fine for certain analytical purposes (for example, identifying a lowest common denominator in order classify regimes), but which tells us little if anything about constitutionalism as a real-world phenomenon. The problem is what this leaves out, namely the thickening of constitutionalism over the last decades and its deleterious impact on democracy. This has been the subject of countless scholarly tracts. It’s relevance to populism is apparent, but noted by the authors only in passing. It is essential to an understanding of populism and its relation to constitutionalism in the EU member states, particularly in light of over-constitutionalisation in Europe. The authors concur that the populist surge can be viewed as a response to decades of undemocratic liberal principles. But they caricature this position, aligning it with the notion that ‘Brussels’ is a metonym for technocracy (p 233) and instead of developing the argument, are deflected into discussing a critique of ‘instantaneous democracy’ and the straw man of the rationalist voter (pp 234 – 243). 
In the second part of the book we get more detailed evaluations of populism in Hungary and Poland, Italy and Austria, Greece and Spain, as well as case studies on court reform in India and constitutional reforms in Ecuador and Bolivia. I shall focus on the European examples. The chapter on Hungary and Poland was informative, giving socio-economic context to the populist appeal, and noting some important institutional differences between the two countries. But it was a shame they relied on labels developed by others and given inadequate treatment, such as ‘diminished democracy’ and ‘competitive authoritarianism’. And in chapter 9 they make the brief aside that the Orban government is not in fact populist at all but authoritarian, and that ‘its actions tell us more about how authoritarians behave than about how populist governments do’ (p 204). Why then does Hungary play such a prominent role in the book? Why not say more about authoritarianism and its relation with populism, and with democracy and constitutionalism for that matter?
We are told that sometimes constitutional innovations that are ‘okay’ in isolation can be put together in a way that makes ‘something bad’ happen, but not what among all the things these terms could mean they actually do mean. Bad for whom? Okay in what respects? The discrete examples given, such as libel laws in Singapore in conjunction with its rules on qualification for office, can’t do the amount of work required. There is a lot of discussion in the chapter on the ‘Frankenstate’ that turns on whether one should evaluate by identifying the motives of the rulers, whether the signals suggest they are well intentioned or not, and whether this distinguishes the Frankenstate from ‘decent dominant party states’ (p 118). The authors spend some time in rejecting the signalling account. They could have dispensed with it more quickly.
The chapters on populism in ‘Western Europe’ and ‘Southern Europe’ treat Italy, the UK Austria, Spain and Greece. I will largely leave aside the treatment of the UK, as it deals predominantly with the Brexit referendum, on which I draw very different conclusions, save to say that unfortunately, and uncharacteristically, it follows a rather tired liberal cliché, reading as an ideologically charged over-simplification of the politics of Brexit - ironic given their rejection of the referendum itself as being ‘an oversimplification of complex policy options’ (p 133).
But it points to a deeper problem. In none of these chapters is there any serious discussion of the constitutional implications of membership of the EU. This is such a huge and significant topic that it looms over the discussion like an invisible white elephant; EU membership impacts on everything from parliamentary majoritarianism to judicial independence, austerity policies to political accountability. The point is not to say ‘this book doesn’t deal with x’. The point is that the things that the book does deal with cannot be properly understood in isolation from x. There is a large literature here, from Peter Mair’s work on the ‘hollowing out’ of Western democracy to the more recent book by Bickerton and Accetti on ‘technopopulism’ (which is cited but not discussed), on which they could have drawn.
A brief section on the Italian populist-led referendum to reduce the size of the Italian parliament, for example, is geared primarily towards showing that it was not necessarily an ant-constitutionalist endeavour. But this doesn’t get anywhere near the core the matter, which, as Goldoni has argued, was the intention ‘to channel resentment against the failure of the political system’ albeit in a way that left ‘unscathed the political economy of the constitutional order’. In other words, it shows the emptiness of the populist anti-establishment rhetoric: a ‘move coherent with the logic of cuts that undergirds austerity policies’, revealing a complete lack of constitutional imagination and failing to disrupt ‘the material tenets of the current order’. The limits on the constitutional imagination imposed by EU membership are key.
I have argued that the EU reinforces an authoritarian liberalism, to which authoritarian populism is a reaction and an inflection. The roots of this phenomenon are deep and must be tackled materially and historically. They may of course disagree. The sections on the fortunes of Podemos and Syriza suggest some common ground, but here they suffer from a lack of conviction, the euro crisis told as an ‘as if’ story about a reaction to neoliberalism, despite it being one which has been well documented and studied.
The lack of historical and material analysis leads to some misleading claims. Considering a general populist disdain for term limits, and a power-hungry desire to extend them, but noting that systems which allow the chief executive to serve for lengthy periods aren’t always anti-constitutional, Thatcher’s eleven-year reign and Angela Merkel’s four presidential terms are dismissed as ‘of course’ not populist. One of the most significant theoretical interventions in the 1980’s was precisely and directly about Thatcher’s ‘authoritarian populism’. This reflected broader debate about the meaning of these terms, developed by Stuart Hall, who was building on earlier work by Greek Marxist thinker Nicos Poulantzas on ‘authoritarian statism’. An interesting case has recently been made by German sociologist Wolfgang Streeck that Merkel’s reign itself can be described as technopopulist. In a tract that otherwise indicates a willingness to think beyond the mainstream, the missed opportunity to engage with heterodox explanations of populism and its changes over time is disappointing.
The authors may consider Merkel’s Germany to be neither authoritarian nor populist, even on a more considered view. If so, it would have been useful to say in what respects it differs. A comparison of a non-populist but strongly constitutionalist regime would have been highly instructive in a study of this type. And if Germany has not gone down the populist route, why not? Because of its stronger institutions? More counter-majoritarianism? Militant democracy? Regional hegemony? Constitutional history? If a failure to engage with these questions leaves a hole in the analysis, the failure to address Macron’s regime is even more disappointing, given that the case for his authoritarianism has been powerfully made.
The absence of concrete analyses of well-documented claims of authoritarianism and populism is compounded by the amount of time given to highly speculative assessment of the pandemic response. The book would have been better if this had simply been omitted. Some of it is presented as a thought experiment, yet the discussion begins with an evaluation of how countries have so far done: ‘some did a bit better than others, at least for a while, and others did a great deal worse’ (p 246). This is so vague as to be almost meaningless. We are not even told what ‘doing better or worse’ means, which deprives the subsequent discussion of purchase. There is undoubtedly pressure to speak on highly topical events, but serious scholarship sometimes has to resist. If there ever was a case of saying ‘it’s too early to tell’, here was it.
‘Together with Donald Trump’s victory in the US presidential elections a few months later’, the authors declare, with uncharacteristic hyperbole, ‘the Brexit referendum represented the most important victory for populists in the West’ (p 132). This, however, is refuted by their own analysis, which discounts the referendum as not reliably determining the preferences of the majority (the ideological bent of this evaluation is revealed when they say that local knowledge there counted for nothing). ‘Populists’ they declare late on in the book ‘are committed in principle to the proposition that questions of public policy should be determined by the reliably determined preferences of the majority’ (p 252).
But what about Trump? Specifically, what are the political and constitutional implications of Trump’s election and style of governing? What we get is a rather cursory and speculative assessment of Trump’s response to the pandemic. This would have been a golden opportunity to consider the bigger issues around the lack of universal health care, unequal socio-economic impact of the pandemic and the pandemic response, and the relationship of material factors to populist appeal. Is it likely that we will look back at Trump’s regime and consider its main defect to have been executive underreach in response to the Corona crisis? On the more general prospect of increasing and increasingly unbound executive powers, precisely where I believe there is a genuine concern about authoritarian populist erosion of democracy and political accountability, the authors signal agreement with Vermeule and Posner, that sidestepping the constitutional distribution of law-making powers (which they call the ‘status quo distribution’) is basically okay when new problems of governance emerge (p 203).
Tushnet and Bugaric do finally get to the crux, noting that the way to thwart democratic decline is to have more democracy (p 210). But this is linked with a claim about a ‘pro-constitutional culture’ as if constitutionalism and democracy were the same thing. They end the chapter by citing Corey Robin’s compelling analysis that it was through the existing institutions of US constitutionalism that an authoritarian like Trump would be empowered, and that a process of norm erosion is exactly what is required for a successful democratic movement. This should have been the beginning, not the end, of the investigation.
One thing the book is not about, despite the title, is power. There is no engagement with the concept of power, about the forms it takes in late modernity, about the relationship between political power and economic power, or about the impact of law on political economy. They suggest that populism’s success lies in getting behind formal institutions, and into society, harnessing social movements, and societal discontent. This is an important insight, and is surely right. It calls out for further analysis, such as whether this is more rhetorical than real, as I suspect, leaving the prevailing structures of political economy largely intact.
As William Scheuerman has recently noted, many influential diagnoses of populism and authoritarianism suffer from a disconnect from social theory. Tushnet and Bugaric signalled a willingness to take a different route from the orthodoxy, and in some respects they do. But for a book that essentially says so much is contingent, that context matters, we are not given sufficient context to make proper judgment about the phenomenon.
It may be true that here, as in many other areas, ‘it does all depend’. But this doesn’t elide the mistake in thinking that we can understand populism by teasing out its relation to constitutionalism. In a sense this is underscored by their own conclusions: populism may or may not be unconstitutional; anti-constitutionalism may or may not be populist. This is useful is dispelling the common assumption that the two are necessarily in contradiction, and, as I noted above, the target audience of this book should be the scholars of populism who reduce it in that way. But beyond that, it is unclear what is to be gained, conceptually or historically, by offering an evaluation of populism in this highly circumscribed manner.
Dr Michael A Wilkinson
Associate Professor of Law, LSE

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