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 as a Constitutional Project
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.