The Constitution Against the People: Rethinking Law, Markets, and Democracy

Guest Blogger

Bojan Bugaric

Contemporary debates about populism in constitutional theory are often framed from a centrist perspective that treats populism primarily as a democratic pathology. In this account, populism—whether of the left or the right—is inherently hostile to constitutionalism. By attacking independent courts, free media, minority rights, and fair electoral rules, populist movements are said to inevitably degenerate into illiberal or authoritarian rule.

This diagnosis, however, is historically incomplete and normatively misleading. A cursory look at twentieth-century history reveals forms of populism that did not undermine constitutional democracy but instead helped preserve and renew it. The New Deal in the United States remains the paradigmatic example: a mass democratic response to economic crisis that dramatically expanded state capacity and social rights while remaining broadly faithful to constitutional structures. Populism, in other words, has not always been the enemy of constitutionalism.

What we are witnessing today is therefore not simply the rise of anti-constitutional populism. Rather, it is a crisis of a specific model of constitutional democracy—one that has dominated much of the world since the 1990s. This model is best understood as neoliberal constitutionalism.

Neoliberalism is often understood narrowly as a set of economic policies favoring deregulation, privatization, and free markets. But neoliberalism is also a political and constitutional ideology. At its core lies a belief that markets are morally and practically superior to democratic politics in organizing economic life. From this perspective, the primary function of constitutional law is not to facilitate collective self-government, but to shield markets from democratic interference.

This vision requires more than policy change; it demands institutional insulation. Independent central banks, constitutional courts enforcing strong property and contract rights, autonomous regulatory agencies, and international legal regimes that constrain domestic political choice all serve to remove key economic decisions from majoritarian politics. Law plays a crucial role in depoliticizing economic governance and rendering it technocratic. In this sense, neoliberalism is as much a theory of democracy and the state as it is a theory of markets.

The practical expression of this ideology emerged most clearly in the Washington Consensus of the 1980s and 1990s. Initially formulated by the IMF, the World Bank, and the U.S. Treasury in response to Latin American debt crises, this policy package—liberalization, privatization, deregulation, and fiscal austerity—was later exported globally, including to post-socialist Europe. Over time, its principles became embedded not only in ordinary legislation, but also in constitutional doctrine and supranational legal frameworks.

As neoliberalism consolidated its dominance, constitutional democracy acquired a dual character. Electoral competition remained formally intact, but the range of choices available to voters narrowed dramatically. Key economic decisions were constitutionally or institutionally locked in, insulated from political contestation. Peter Mair famously described this arrangement as a “hollowed-out democracy”: a system in which democratic procedures persist while meaningful popular control steadily erodes.

From Embedded Liberalism to Hyper-Globalization

Neoliberal constitutionalism replaced the postwar model of embedded liberalism, which had sought to reconcile international economic openness with domestic social protection. Under embedded liberalism, globalization was politically managed so that national welfare states could coexist with international trade and capital flows.

Beginning in the late 1970s, this compromise unraveled. It gave way to a period of hyper-globalization, particularly from the 1990s through the late 2000s, marked by unprecedented capital mobility, deep trade liberalization, and shrinking national policy space. Economic integration increasingly outpaced democratic control, while constitutional and international legal constraints made political reversal difficult.

The social consequences were profound and uneven. Hyper-globalization contributed to deindustrialization across much of the West, the erosion of stable employment, wage stagnation, rising inequality, weakened labor protections, and heightened economic insecurity. While neoliberal constitutionalism produced aggregate economic gains, it also generated widespread social dislocation and political resentment.

Neoliberalism and globalization reinforced one another. Neoliberal reforms accelerated global integration, while globalization entrenched neoliberal norms by making deviation appear economically reckless or legally impossible. Constitutional law became a central mechanism for enforcing this settlement, transforming political choices into matters of legal necessity.

The Populist Revolt

By the 2010s, the contradictions of neoliberal constitutionalism had produced a global political backlash. Populist movements—on both the left and the right—emerged in response to elite dominance, economic exclusion, and the perceived loss of national sovereignty. Their shared demand was the restoration of popular voice in political and economic decision-making.

Populism’s relationship to constitutionalism, however, is deeply ambivalent. While populist movements often articulate powerful critiques of neoliberal governance, they are far less successful at articulating coherent institutional alternatives. Many remain trapped within the assumptions they reject. Demands for renationalization, border control, or economic protection frequently slide into exclusionary nationalism rather than structural reform.

In their more authoritarian variants, populist movements echo troubling aspects of interwar politics. Attacks on courts, the media, and minority rights raise legitimate concerns about democratic backsliding. Yet to treat populism simply as a constitutional pathology is to miss the deeper point. Populism is better understood as a symptom of the failure of neoliberal constitutionalism, not its primary cause.

The Future of Constitutional Democracy

Where, then, might constitutional democracy be heading after the erosion of the neoliberal settlement? Contemporary scholarship offers sharply divergent diagnoses.

Jack Balkin suggests that we are witnessing the exhaustion of a constitutional regime and the early stages of a new constitutional cycle. On this view, today’s turbulence reflects not democratic decay as such, but the predictable breakdown of an aging political–economic order. Just as earlier constitutional regimes collapsed under social and economic pressure, neoliberal constitutionalism may be nearing the end of its lifespan. If so, the present crisis could open space for constitutional reconstruction—potentially involving renewed public regulation, expanded social rights, and a rebalancing of democratic control and economic power.

A darker diagnosis is offered by British political scientists Matt Goodwin, who emphasizes the depth and durability of the populist revolt. From this perspective, we are not witnessing a transitional moment, but a long-term realignment driven by cultural backlash, identity politics, and declining trust in liberal institutions. The postwar liberal-democratic consensus, already weakened by neoliberal globalization, may not be recoverable. Instead, constitutional democracy faces sustained pressure from movements willing to sacrifice liberal constraints in favor of majoritarian and nationalist conceptions of democracy.

Between these two readings—Balkin’s cautious optimism and Goodwin’s pessimism—lies profound uncertainty. What is clear, however, is that the neoliberal constitutional order has lost much of its legitimacy and governing capacity.

Constitutional Institutions in the Interregnum

The present moment closely resembles what Antonio Gramsci famously described as an interregnum: a period in which “the old is dying and the new cannot be born.” In such moments, constitutional norms weaken, political experimentation proliferates, and a range of “morbid symptoms” emerge. Populism, technocratic overreach, democratic erosion, and institutional paralysis are not anomalies, but characteristic features of this transitional phase.

Institutions designed to stabilize neoliberal constitutionalism—constitutional courts, independent central banks, regulatory agencies, and supranational legal orders such as the European Union—now find themselves at the center of political conflict. Courts are increasingly accused of elitism and overreach; central banks face pressure to abandon technocratic neutrality; EU law is challenged for constraining democratic choice without sufficient democratic legitimacy of its own.

These institutions are no longer merely guardians of constitutional stability. They are arenas in which the unresolved tensions of the interregnum are played out. Whether they become instruments of democratic reconstruction, mechanisms of technocratic entrenchment, or targets of populist dismantling remains uncertain.

What is increasingly untenable, however, is the belief that the neoliberal constitutional settlement can simply be restored. The challenge ahead is not how to defend constitutionalism against the people, but how to reimagine constitutional arrangements capable of reconciling democracy, economic justice, and interdependence. A growing cohort of younger scholars—figures such as Ryan Doerfler, Niko Bowie, and Sam Moyn—express deep skepticism toward traditional constitutionalism, particularly its faith in entrenched rights and judicial supremacy. Their attraction to a more minimal, procedural constitution reflects a broader unease with the ways constitutional law has been used to freeze contested political choices.

The decisive question of the interregnum is therefore not whether constitutionalism will survive, but what kind of constitutionalism will emerge. If constitutional law continues to function primarily as a shield against democratic demands, populist revolt will persist—and likely intensify. Only a constitutional order that restores democratic agency over economic life can hope to regain legitimacy. The alternative is a future in which constitutionalism is increasingly perceived not as a common framework of self-government, but as an obstacle to it—a constitution against the people.

Bojan Bugaric is Professor of Law, University of Sheffield Department of Law. You can reach him by e-mail at b.bugaric@sheffield.ac.uk.