"Power to the People" -- Response to the Review Symposium

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).

Mark Tushnet and Bojan Bugaric

We thank all the contributors to the review-symposium for their thoughtful engagement with Power to the People. Responding in detail to all the observations – both supportive and critical – would exceed readers’ patience, so we confine ourselves to some matters where, we think, we can contribute to a productive conversation about the book’s arguments.

            Several comments point to what we regard as fruitful lines of inquiry to pursue within the general framework we develop; others are challenges to some of our basic assumptions. Professor Graber raises two questions that we regard as intertwined, for example. He picks up on our passing acknowledgement of Robert Michels’s iron law of oligarchy and suggests (in our reading) that future research on populist parties and movements might identify the characteristics of the elites who, Michels argues, inevitably come to dominate such parties and movements. We agree that some systematic inquiry along those lines might be quite enlightening.

We think such an inquiry might connect to a second question Professor Graber raises: Under what conditions do what he calls the more inclusive or pluralist strands of populism degenerate into exclusive and antipluralist versions. Professor Ó’Cinnéide echoes this concern in his argument that we underestimate the extent to which some forms of populism can be democratic irritants, the response to which might be a rejection of some elements of democracy. These are interesting empirical questions – and we note that they can be posed only if scholars accept our argument (and others’, of course) that populism isn’t by definition antipluralist or antidemocratic in tendency. Moreover, our own reading of the political science literature is that that question rather depends on other structural features exogenous to populism (host ideology, the leader’s character, and others).

Professor Suteu also brings some empirical questions to the fore. Acknowledging that populist political parties and leaders choose among instruments for determining what (in their view) the people prefer, she asks about the conditions under which they choose one or another instrument. So, for example, what are the political conditions that lead populist parties to put questions to a referendum or to ordinary lawmaking by bodies in which they have a majority? We have no well-informed views about those questions. We note, though, one matter worth exploring. Sometimes a referendum might be preferred because public engagement in the campaign will build support for the party (the referendum in Hungary to be held this year on restricting LGBTQ rights, for example); sometimes it might build more enduring support for the policy (in our admittedly controversial view, the Irish referendum on marriage equality).

Like Professor Ó’Cinnéide’s Professor Dixon’s comments pivot between asking empirical questions within our general approach and questions about that approach. As to the former, for example, she notes that we don’t distinguish clearly between populist movements and populist political parties, and in particular observes that leadership characteristics might differ in the two forms. We agree that this is an important and under-researched question: At the anecdotal level differences between Viktor Orbán, leading a (perhaps) populist political party, and Evo Morales, which began as a leader of a populist movement that transformed into a populist party, seem worth thinking about.

Professor Dixon also raises a more general concern. She worries that our insistence on distinguishing among populisms, coupled with our thin definition of constitutionalism, might be ill-suited for those who, as she puts it, are interested in devising ex ante constitutional controls designed to reduce the risk that problematic forms of populism will come into power. To a large extent we agree with her. Our disagreement is perhaps about a deeper question, which put a bit snidely is that the very purpose of ex ante constitutional designs is to remove issues from ordinary political contention. They reflect a fear of politics as such within, as Professor Dixon of course acknowledges, some restricted domains. The tricky questions are these: (1) Can we identify ex ante the boundary between the domain in which ordinary politics governs and the ones removed from such contention in a way that reduces the risk of “bad” populism without too severely constricting the range of permissible political choices? Our position, expressed through our thin definition of constitutionalism, is that doing so is extremely difficult, perhaps even impossible. And (2) even if the boundary is drawn, will it be stable or, more precisely, for how long is it likely to be stable?  One important theorization used slavery in the ante bellum United States and abortion in the contemporary United States as examples of issues whose constitutionalization supposedly took the issues off the table, which suggests the empirical difficulty of this question. And, beyond empirical difficulty, there’s the political-theory one, suggested by Professor Bellamy’s invocation of political constitutionalism, that taking anything out of the domain of ordinary political contestation is problematic in reasonably well-functioning democracies.

We turn now to the more fundamental challenges to some of our arguments some of the responses offer. Our book begins with chapters defining constitutionalism and populism. Professors Bellamy, Wilkinson, and Khaitan argue that our definitions are defective. Our response begins by stating two presuppositions about definitions that shaped our initial presentation: They should be useful for the purposes to which they are put and they should be no more precise than are the objects they seek to identify.

So, for example, Professors Loughlin and Wilkinson criticize our use of a thin definition of constitutionalism because it doesn’t capture the “historical and material” (Wilkinson) realities of the form of constitutionalism expressed widely in contemporary Europe and the United States. That form of constitutionalism is “a specific philosophy of governing” that began as a means to “institute a regime of limited government” and works today to support “policies that embrace globalization and open statehood” (Loughlin). We have no deep quarrels with that definition when used for its own purposes, as a critique of what Professor Loughlin (supported to some degree by Professor Wilkinson) describe as the contemporary constitutional situation in Europe and the United States.

We wonder, though, why they think that their definition is useful in addressing the questions we are interested in, and in particular the claim, widely prevalent in the literature on populism and constitutionalism, that populism is inconsistent with constitutionalism. Maybe they believe that the literature has taken a wrong turn and that addressing its concerns is a waste of time. Some of what they write, though, suggests that they too think that dealing with the relation between populism and their thicker versions of constitutionalism is worthwhile. At one point, for example, Professor Wilkinson seems to argue that Italian populism is actually compatible with the thicker constitutionalism he describes. And there are more than hints in their responses of the common claim that populism is a reaction to that thicker constitutionalism, as people left behind by globalization and open statehood reject the policies forced upon them by governing elites in the name of constitutionalism. Professor Bellamy expands on the claim though he doesn’t endorse it fully.

We’re sympathetic to that claim, adverted to briefly in our book. We refrained from getting behind it, though. Professor Bellamy explains our concerns. The claim is contentious among political scientists who disagree about the relative explanatory power of “socio-cultural” or “economic-political backlash.” For example, survey evidence from the United States suggests, though not conclusively, that Donald Trump’s core supporters aren’t in fact people who work in sectors distinctively disadvantaged by globalization and the like. And evaluating the causal arguments is outside our wheelhouse. So, in sum, the thicker definitions of constitutionalism that Professors Loughlin and Wilkinson prefer are suitable for their purposes, less suitable for ours.

Professor Wilkinson also criticizes us for saying a lot about what populism isn’t and not so much about what populism is. That does indeed accurately describe our presentation, though we think it a strength rather than a weakness. The reason is that far too often scholars and political commentators use “populism” as what philosopher C.L. Stevenson would call a “boo!” word. In the literature on populism to which we refer the term “populism” is attached, sometimes with an accompanying adjective, to political parties and leaders who win elections, or come close to winning them, on unworthy policy platforms. In some ways our core argument about populism is that this is a conceptual mistake however effective it might as a form of political rhetoric. So, for example, Professor Wilkinson refers to works describing Margaret Thatcher as an authoritarian populist and cites a scholar who calls Angela Merkel a technopopulist. It seems to us that the adjectives are doing all the work here, and that calling these politicians “populists” leaches that term of any analytic value except as an indication of the fact that they won elections rather than forced their policies down the throats of disfranchised citizens.

We think more valuable Professor Ó’Cinnéide’s observation that “populist tropes lurk[] in every corner of the political spectrum,” and his reference to them as an “antisystem electoral strategy … that is part of the technology of democratic competition.” For us, the critical enterprise of treating many features said to characterize populism as features of ordinary political life is more useful – again, for our purposes if not for others’ – than attempting to distill what is essential to populism as such.

Professor Bellamy’s milder objection to our thin definition of constitutionalism operates a bit differently. He treats our thin constitutionalism as a regulative ideal: If the requirements of thin constitutionalism are satisfied the normative goals said to be promoted by constitutionalism, such as creating a framework for determining and then advancing the public good, will be achieved. But, he argues, thin constitutionalism might not do so and therefore can’t be a regulative ideal. We agree with that proposition because we didn’t offer thin constitutionalism as a regulative ideal. For us, as other commenters indicate, it's something like a common core to thicker versions of constitutionalism such as that offered by Professor Khaitan. Taken as a regulative ideal, thin constitutionalism might conduce to limited government of a neoliberal sort, though we think that establishing that proposition would take quite a bit of empirical and theoretical work.

Our discussion of the possibility of “good” populisms expresses our view that thin constitutionalism can lead, as Professor Bellamy puts it, to “more government.” On the face of it, the very thinness of our version – the fact that it doesn’t take much off the table of ordinary political contestation – would seem to enable a wide range of policy choices. Perhaps we’re wrong because, at least in a world where power (including political power) is distributed in the normatively troubling way described by Professors Wilkinson and Loughlin, you need a thicker constitution to get more government. That’s partly an empirical question and partly a call for political mobilization against the current distribution of power. We’re not specialists in political activism, of course. What we offer in the book’s concluding part are some suggestions about institutional reforms that activists might consider taking up.

Like Professor Bellamy, Professor Khatain sees us as prescribing thin constitutionalism as a normative ideal. His position, though, is stronger than Professor Bellamy’s because for him we present thin constitutionalism as “the exclusive normative standard in relation to a state’s institutional setup.” As our discussion already indicates, we think that’s a straight-forward misreading of what we have to say. Though we’re quite tentative in saying the following, we suspect that Professor Khaitan’s mistake results from his desire for more definitional precision than is appropriate when we’re dealing with constitutionalism. This comes out, for us, in his insistence that there’s something truly important about distinguishing between using “constitutional” and using “constitutionalist.” Maybe for some purposes drawing that distinction is important, but not, we think, for studying the actual operation of real institutions in the messy world of politics (by which we mean the discussion and choice of policy outcomes where people disagree about what’s best for them and their society).

In passing we note that including some degree of entrenchment a criterion for thin constitutionalism doesn’t exclude the United Kingdom because there are several mechanisms for ensuring that some arrangements or rights aren’t subject to displacement by ordinary legislative majorities. The most prominent of course is review by courts of legislation challenged as de-entrenching. Another is the identification in the constitution itself of some provisions enforced as Professor Bellamy would have it by political contestation with the effect of obstructing de-entrenchment by ordinary, transient political majorities. (There’s a tricky technical question here about whether we should regard “mere” power-conferring provisions as entrenched; we forgo discussion for reasons of space.) And, finally, there’s the UK method of entrenchment, which as Professor Khaitan says is through political culture.

Professor Khaitan points out that including majority rule in our definition of thin constitutionalism rules out consociational arrangements. That’s a fair point, and we should have deal with it in the book. Our initial response is along empirical lines. Professor Khaitan says correctly that consociationalism has been part of the constitutional tool kit for a long time. Our sense is that it has fallen out of favor, perhaps because it has been less successful in ensuring social peace than its strongest proponents had hoped and perhaps relatedly because it hasn’t proved stable enough to be a useful design tool. But the question deserves more attention because of the possibility manifesting itself in some nations of populist governments overriding previous formal or informal consociational constraints on what a majority ethnic group can do.

We conclude with some observations about the commenters’ discussions of our suggestions for empowered democracy in and after populism. The first is perhaps obvious. Despite parenthetical observations by Professors Bellamy and Khaitan, we don’t endorse (further) judicialization of constitutional values. We’re more inclined to reinvigorating the political constitution to which Professor Bellamy refers, and to supporting institutional innovations that, as he says, would encourage “deliberation and contestation.” These include “devolving power to different regions,” or what we called substantial decentralization.

That’s one response to Professor Suteu’s concern about the extent to which some of the deliberative processes we discuss, such as citizen assemblies and deliberative polling, can scale to national levels. There’s obvious ground for worry, but we note several points. (1) A well-designed deliberative poll might actually be more accurate in determining what “the public” believes to be good policy all things considered than a legislature whose representatives are chosen in elections in which parties present aggregate platforms. (2) Some new forms of democratic engagement have been successfully scaled up, the most notable being participatory budgeting in Brazil, which by all accounts has (sometimes) been reasonably effective at the regional level. (3) Theorists such as Hélène Landemore and Camila Vergara, whose work we mention, have developed mechanisms that they believe would allow for successful scaling. (4) And, finally, to return to Professor Bellamy’s observation, the issue of scaling-up arises, as it were, only when we worry about decisions at scale. But, we suggest, some decisions might best be taken in radically decentralized policy-making bodies, where the issue of scale wouldn’t arise.

Again we thank the participants in this review-symposium for their thoughtful engagement with Power to the People. We hope that the symposium will enhance readers’ understanding of the book (and perhaps attract more readers to it!).

Mark Tushnet is William Nelson Cromwell Professor of Law emeritus at Harvard Law School. You can reach him by e-mail at mtushnet@law.harvard.edu. Bojan Bugaric is Professor of Law at the University of Sheffield. You can reach him by e-mail at b.bugaric@sheffield.ac.uk.