1.1 IntroductionFootnote *
There is a tendency in current constitutional thinking to reduce populism to a single set of universal elements. These theories juxtapose populism with constitutionalism and argue that populism is by definition antithetical to constitutionalism.Footnote 1 Populism, according to this view, undermines the very substance of constitutional (liberal) democracy.Footnote 2 By attacking the core elements of constitutional democracy, such as independent courts, free media, civil rights and fair electoral rules, populism by necessity degenerates into one or another form of anti-liberal and authoritarian order.Footnote 3
In this chapter, I argue that such an approach is not only historically inaccurate but also normatively flawed. There are historical examples of different forms of populism, like the New Deal in the United States, which did not degenerate into authoritarianism and which actually helped American democracy to survive the Great Depression of the 1930s. Looking at the current populist map, we can also find examples of such democratic populists, who seek to protect and defend democracy by making it more responsive, equitable and inclusive.Footnote 4 Hence, it is wrong to argue that there is something intrinsic to populism which makes it incompatible with constitutionalism.
We must therefore distinguish between varieties of populism. There is not a single form of populism, but rather a variety of different forms, each with profoundly different political consequences. Populism always co-exists with one or other of a variety of different host ideologies, which significantly determine how populism affects democracy.Footnote 5
As more recent empirical studies of effects of populism over constitutional democracy show, the picture is mixed: populism has both negative and positive consequences for democracy.Footnote 6 While it is clear that certain instances of authoritarian populism lead to democratic backsliding and breakdown, it is also true that democratic populism can foster democratisation. As a result, ‘despite the fact that there are good reasons for worrying about the rise of populism, scholars are probably putting too much emphasis on the downsides and thus not considering potential positive effects of populist forces’.Footnote 7 The limits of the dominant approach, which defines populism in a singular ‘generic’ form, lie precisely in neglecting to analyse the impact of host ideologies on legal and political consequences of various populist forces. Once we couple populist discourse with (host) ideology, we see a much more complicated pattern of interrelationship between populism and constitutional democracy: populism comes in different versions, with quite different impacts on constitutionalism and the rule of law. Examples of democratic, liberal, socially inclusive forms of populism quite clearly show that authoritarianism and anti-pluralism are not necessarily the key elements of populism. Of course, sometimes conservative and progressive populists slide into authoritarianism. When they do they are best described as Douglas Johnson puts it, as authoritarians masquerading as populists.Footnote 8
The chapter proceeds as follows. Part 1 provides a critique of generalised accounts of populism. Overall, I argue against generalised claims about populism as such and constitutionalism as such. Instead of talking about populism in general, scholars should direct their attention to the questions posed by specific actions taken by individual populist governments. Most general accounts of populism treat it as a style of politics or form of political discourse devoid of any particular ideology. Coupling populism with different host ideologies, however, shows that populist parties and leaders have very different conceptions of the people, goals and relations to liberal democracy. Hence, Vergara asks ‘why should we lump together under the same label such radically different political projects?’Footnote 9 Part 2 provides a map of different ‘actually existing populisms’ and an examination of how different populist ideologies and ideals translate into constitutional law. The conclusion is that sometimes populist governments act in anti-constitutional ways, and sometimes they do not.
The populist onslaught against the constitutional pillars of democracy has shown that the traditional ‘checks and balances’ such as courts, independent electoral bodies, free media, and civil and political rights might not be as powerful in defending democracy from backsliding towards autocracy as many legal scholars tend to believe. Part 3 engages with this issue and addresses the question of ‘relative irrelevance’ of constitutional design as part of the resistance to authoritarian populism.Footnote 10 It offers two provisional conclusions. One is that law has only a weak role in preventing a breakdown of constitutional democracy when targeted by determined autocratic populist leaders. The second conclusion shows that law is likelier to be able to play a constraining role of law during the early stage of populist attacks, when it can serve as a ‘speed bump’Footnote 11 to slow the deconsolidation of constitutional democracy.
1.2 Is Populism (Always) Antithetical to Constitutionalism? On the Importance of Definitions and Their Implications
1.2.1 Populism as Anti-Liberalism: Is There a Single Formula to Define Populism?
Handbooks, research guides and companions to populism abound. Authors use the term to refer to a large number of political movements, and no agreed-upon definition has yet emerged. The most widely used approach to populism in contemporary academic literature is the ideational approach: ‘This approach regards populism as an ideology, as a set of ideas or as a worldview.’Footnote 12 The most commonly used definition of populism under this approach comes from Cas Mudde. According to Mudde, populism is:
… a thin-centered ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite’, and which argues that politics should be an expression of the volonté générale (general will) of the people.Footnote 13
Similarly, Jan Werner Müller, probably the most widely cited author on this matter, defines populism as ‘a way of perceiving the political world that sets a morally pure and fully united – but … ultimately fictional – people against elites who are deemed corrupt or in some way morally inferior’.Footnote 14 As Moffitt correctly notices, both Mudde and Müller highlight two core features of populism: ‘a) the divide between the people and the elite and b) the homogeneity, unification and moral purity of the people’.Footnote 15
One of the most important narratives that has developed around populism in the academic literature is that it is a threat to liberal democracy. Mudde and Müller are strong proponents of this view. For both of them, populism’s core features imply that populism is at odds with liberal democracy. For Müller, populism is ‘a profoundly illiberal and, in the end, directly undemocratic understanding of representative democracy’.Footnote 16 While Mudde allows the possibility that populism can potentially be democratic, he agrees with Müller that it is illiberal. Hence, on both readings, populism’s essential trait is a rejection of pluralism:
Populism holds that nothing should constrain ‘the will of the (pure) people’ and fundamentally rejects the notions of pluralism and, therefore, minority rights as well as the ‘institutional guarantees’ that should protect them.Footnote 17
As I describe next, though, other authors attribute other characteristics to populism, and some omit one or more features of Müller’s definition. My view is that, to use a tired metaphor, populisms may share a family resemblance, but the family is an extended one whose dispersal around the world has produced members who could have little to say to each other at a family reunion.
Treating populism as inherently anti-liberal and anti-pluralist is somewhat in tension with another element of the ideational approach to populism. As mentioned earlier, Mudde defines populism as a ‘thin-centered ideology’, suggesting populism has the ‘ability to cohabit with other, more comprehensive ideologies’.Footnote 18 The implication of the thin-centred nature of populism is that ‘it does not stand alone as an ideology but it is rather always combined with other ideologies’.Footnote 19 Such adaptability of populism is best captured by Paul Taggart’s claim that populism is chameleon-like, ever adapting to the colours of its environment.Footnote 20 As a thin-centred ideology, populism shares characteristics of other thin-centred ideologies such as nationalism, feminism and green politics rather than being a thick ideology like liberalism, socialism or fascism. Hence, there exist several rather different varieties of populism: agrarian, socio-economic, xenophobic, reactionary, authoritarian and progressive.Footnote 21 In order fully to understand the logic of the different populisms, we have to approach them as socially and historically contingent categories. Anna Grzymala Busse argues that instead of analysing populism per se, we should recognise that it takes a variety of guises.Footnote 22 As mentioned earlier, some examples of populism quite clearly show that authoritarianism and anti-pluralism are not necessarily the key elements of populism.
Curiously enough, despite the variety of forms that populism can assume, there is a tendency in current academic literature, both in political science and law, to reduce populism to a set of generic elements such as anti-pluralism, the people’s homogeneity and exclusivity, nationalism, a strong single leader, impatience with institutions, direct rule and vilification of minorities. These theories usually juxtapose populism with constitutionalism and argue that populism as such is antithetical to constitutionalism.Footnote 23 Populism, according to this literature, ‘fundamentally opposes the essence of constitutionalism’,Footnote 24 and is ‘the mirror-image opposite, and a major foe, of contemporary liberal democracy’.Footnote 25
Jan-Werner Müller’s formulation is probably the most widely cited. He argues that populism is not only anti-elitist but also anti-pluralist: populists claim that ‘they, and they alone, represent the people’.Footnote 26 In their worldview, there are no opponents, only traitors. The opposition leaders are delegitimised through being cast as not caring about ordinary citizens, but only about the interests of various ‘liberal’ elites. Hence, on Müller’s reading, populism’s essential trait is a rejection of pluralism. The second element of the ‘inner logic of populism’ is the non-institutionalised notion of the people:
For them, ‘the people themselves’ is a fictional entity outside existing democratic procedures, a homogeneous and morally unified body whose alleged will can be played off against actual election results in democracies.Footnote 27
What populists actually assert is ‘that there is a singular and morally privileged understanding or will that has not been manifest through the formal structures of democratic choice’.Footnote 28 This leads us to the third element of populism: a populist leader. The role of the populist leader is to do what the people want. The formal structures of liberal democracy have to be put aside if they are preventing the populist leader from fulfilling his role. Populist leaders distrust all the traditional institutions of liberal democracy that stand between them and the wishes of the people. As a result, many of the populist parties openly flout the rule of law and explicitly reject the values of liberal democracy. A corollary of this element is the strong personalisation of power, reflected in the fact that strong leaders like Orbán and Kaczyński have managed to concentrate almost unlimited political power in their hands.
Müller’s definition of populism has many followers in the constitutional law literature. Authors such as Cesare Pinelli, David Landau and Neil Walker agree that populism as such is in conflict with liberal constitutionalism.Footnote 29 Cesare Pinelli has argued that while populists are unlikely to question representative democracy, they ‘attack non-majoritarian institutions on the ground of their lack of democratic legitimacy’.Footnote 30
Conceptualised in this way, with the core anti-pluralist ‘inner logic’, Schmittian understanding of the people,Footnote 31 and strong role of the powerful leader, populism clearly comes into conflict with liberalism’s commitment to pluralism, openness and protection of individual rights. Moreover, after Müller moves from the analysis of populist inner logic to an examination of what populists actually do when in power, populism becomes almost indistinguishable from authoritarianism and dictatorship. The hallmarks of populism in power are colonisation of the state, mass clientelism and mass corruption, and the systematic repression of civil society.Footnote 32 It is no surprise then that Müller views populism essentially as ‘a permanent shadow of modern representative democracy, and a constant peril’.Footnote 33 In light of the particular type of populism that has evolved in East Central Europe, which is the central focus of his study, most of Müller’s claims seem reasonably accurate. The authoritarian populists in Hungary and Poland have successfully institutionalised, through legal reforms, a new version of semi-authoritarian regime, which is halfway between ‘diminished democracy’,Footnote 34 and ‘competitive authoritarianism’.Footnote 35 Following a similar script, which consists of sustained attacks on rule of law institutions, civil rights and freedoms, the media and electoral rules, both leaders in a relatively short period of time dismantled almost all the key cornerstones of constitutional democracy in Hungary and Poland.Footnote 36
However, while Müller’s definition relatively accurately captures the ‘inner logic’ of one particular type of populism, authoritarian populism, it leaves out many other possible types of populism, which do not necessarily share the same characteristics. Though Müller puts anti-pluralism at the centre of his analysis, his presentation, in contrast, could be understood to refer to nearly all forms of political activity by ‘ordinary’ people unified for political purposes only in a project aimed at displacing existing ruling elites with political leaders more attuned to the interests of the people – interests that could in principle vary depending on which groups of ordinary people are most immediately affected by specific policies. The corruption and moral inferiority that Müller sees in populism’s description of ruling elites could, again in principle, be a way of characterising their failure to take the interests of (a possibly pluralist) ‘ordinary’ population adequately into account.
Mark Tushnet offers the most trenchant critique of such a ‘generic’ approach to populism:
Most academic writing has focused on the right-wing versions. That writing generates critiques of what the authors describe as generic populism, critiques that the authors then apply to left-wing populism. It seems to me, though, that the critiques are mostly concerned with the ‘right-wing-ness’ of the object of study, but present themselves in politically neutral terms – presumably because direct political criticism would seem unscholarly.Footnote 37
A ‘selection bias’ of generic approaches has been given more detailed scrutiny more recently. Thomas Frank critiques Müller for wrongly using the word populist to describe only racist and authoritarian demagogues.Footnote 38 Marco D’Eramo and Daniel Steinmetz-Jenkins criticise Müller’s definition of populism for excluding a figure like Bernie Sanders from the ranks of the populists.Footnote 39 In a similar fashion Thomas Frank criticises Yascha Mounk, who in his account of populism almost completely ignores other historical versions of populism.Footnote 40 Frank lists several historical figures associated with progressive and democratic populism in the United States: Andrew Jackson, the Populist Party and FDR. Frank also reminds us of an alternative definition of populism, offered by historian Lawrence Goodwyn. In the opening statement of his book, The Populist Moment, Goodwyn argues that:
This book is about the flowering of the largest democratic mass movement in American history. It is also necessarily a book about democracy itself.Footnote 41
For Goodwyn, populism represented ‘a vision of democratic participation that was actually more advanced than what we settle for today. Far from being a threat to democracy, Populism was democracy’s zenith’.Footnote 42
1.2.2 Populism: From a Single Formula to ‘Varieties of Populism’
The limits of these theories, which define populism in a singular ‘generic’ form, lie precisely in their neglecting to analyse the impact of host ideologies on legal and political consequences of various populist forces. As Camilla Vergara argues, these theories have contributed to a ‘totalitarian turn’ in the conception of populism towards an identitarian, xenophobic, and oligarchic form of politics clothed in populist rhetoric.Footnote 43 We must therefore distinguish between many different forms of populism, each with profoundly different political and constitutional consequences. When we examine the relationship between populism and constitutional democracy, populism should not be considered in isolation from its host ideology.
Margaret Canovan was one of the first scholars of populism who argued that populism comes both in democratic and authoritarian forms. She claimed that populism is ‘born out of crisis as a cure for the failures of traditional forms of representation’.Footnote 44 She argued that democracy has two faces, ‘redemptive’ and ‘pragmatic’, and that populism thrives on the tension between the two,Footnote 45 representing the invocation of the redemptive face of democracy, as a ‘corrective to the excesses of pragmatism’.Footnote 46 For Canovan, populism is a democratising phenomenon aimed at perfecting democratic representativeness, renewing the political system from within. Similarly, for Hannah Arendt, ‘these episodes of collective self-assertion are invariably fleeting and in stand in tension with the need for a more stable constitution of collective freedom, embodied in the rule of law, and representative institutions’,Footnote 47 and thus represent ‘a constitutive feature of the modern democratic project’.Footnote 48 To label them ‘populist’, in a pejorative sense, is to misunderstand this inherent instability of the democratic project. As James Miller argues, the populist ‘outbursts are essential to the continued vitality, and viability, of modern democracy – even as (and precisely because) they challenge the status quo, destructive though that challenge may be’.Footnote 49 As Vergara correctly argues, ‘this normative dimension of populism, as a “corrective” was gradually lost within the theoretical discussion especially after the “discursive turn” in the interpretation of the concept in the late 2000s’.Footnote 50
In their recent article, Jane Mansbridge and Stephen Macedo argue that there is a ‘common conceptual core’ of populism, which fits all cases of populism, both left and right, those in the United States, Europe and elsewhere. Their minimal common core defines populism as ‘the people’ in a moral battle against ‘the elites’. As such, this minimum core definition does not preclude either progressive or conservative or authoritarian forms of populism. Furthermore, they argue, the core can be good for democracy, because the core elements ‘benefit democracy by taking democratic politics back to its normative roots in the wants and needs of ordinary citizens and challenging, on egalitarian and justice grounds, elite political, economic, and cultural domination’.Footnote 51 They warn that the moral antagonism inherent in populism’s core elements has the potential to undermine ‘the democratic commitment to treating all members of the polity, including members of the elite, with respect [and] the capacity of democracy for negotiation and compromise’.Footnote 52 However, unlike other authors who attribute to populists the Schmittian concept of politics, they emphasise that the core elements are not inherently in tension with constitutionalism. It is only the associated characteristics that are often dangerous. They come in two different groupings, being strongly suggested but not entailed characteristics, and then frequent correlates. In the first group we find elements such as a homogeneous people, an exclusive people, greater direct popular rule and nationalism. The second group comprises elements such as a strong leader embodying the people, vilification of minority groups and impatience with deliberation. Again, the core elements are not anti-democratic and inherently in conflict with liberalism. It is only when the core elements are accompanied with some of the elements from two other groups that populism is created. They conclude that populism is ‘sometimes healthy for democracy in opposition but rarely healthy in power’.Footnote 53 I believe that Mansbridge and Macedo’s two-pronged definition of populism, with its core and accompanying elements, better fits the complexity and multiplicity of forms that populism can assume. It allows us to see the multifaceted nature of populism, which sometimes comes in democratic form and sometimes in authoritarian or illiberal forms.
In another important recent study of populism, Pippa Norris and Ronald Inglehart argue that populism comes in authoritarian and libertarian versions.Footnote 54 Their definition of authoritarian populism partially differs from other approaches (Mudde, Müller, Mansbridge and Macedo). What primarily distinguishes authoritarian from libertarian populism is the embrace of authoritarian values such as security, conformity and obedience, which lead to ‘prioritising collective security for the group at the expense of liberal autonomy of the individual’.Footnote 55 For my argument, it is important that Norris and Inglehart, like Mansbridge and Macedo, allow the possibility of ‘varieties of populism’ and identify key elements for both types of populism. For the second type, the libertarian populist parties, they argue, it is typical that they ‘use populist discourse railing against corruption, mainstream parties, and multinational corporations, but this is blended with the endorsement of socially liberal attitudes, progressive social policies and participatory styles of political engagement’.Footnote 56 They also argue that these parties are less common as a type but their support has also grown in recent years in several European states. Among libertarian populists, Norris and Inglehart include Spain’s Podemos Party and the Indignados Movement, Greece’s Syriza, the Left Party in Germany, the Socialist Party in Netherlands, Italy’s Five Star Movement, Bernie Sanders in the US and so on. These examples of democratic, liberal, socially inclusive forms of populism demonstrate, in a more or less perfect form, that authoritarianism and anti-pluralism are not necessarily the key elements of populism. Despite the current hegemony of authoritarian populism, a far different sort of populism is possible: democratic and anti-establishment populism, which combines elements of liberal and democratic convictions.
Following this line of arguments, sociologist Bart Bonikowski argues both that populist claims need not lead to authoritarian governance and that authoritarianism can rely on a variety of other legitimating discourses besides populism. Furthermore, Bonikowski points out that
… populism has also been employed by mainstream politicians who operate within the constraints of democratic institutions. And even when populist movements have radical origins, the resulting political outcomes can be benign with respect to democratic stability.Footnote 57
In this vein, Bonikowski mentions the People’s Party in the United States and the Brexit campaign in the United Kingdom.
Nevertheless, the list of examples of democratic populism is not meant to suggest that this form of populism is an exclusive domain of the political left. As the radical right usually combines populism with nativism and authoritarianism,Footnote 58 it is simply empirically less likely to find this kind of populism (democratic) among the radical right-wing parties. As Bonikowski and Gidron show,Footnote 59 populism has also been employed by mainstream politicians who operate within the constraints of democratic institutions (McGovern, Nixon, G H W Bush, Dukakis, Clinton). Moreover, the radical left populism is, like its radical right counterpart, not immune to anti-liberal and authoritarian tendencies.Footnote 60
If the combination of populism and constitutionalism ‘sounds odd especially to an European ear’,Footnote 61 populist constitutionalism has a strong resonance among many prominent American constitutional scholars.Footnote 62 As Joseph Fishkin and William Forbath argue, many populist movements in the United States contributed to the creation of the ‘anti-oligarchy’ concept of constitutionalism, which sought to empower and protect the democratic nature of the American constitution.Footnote 63 In the same way, Bruce Ackerman has argued that the key founding moments of American constitutionalism are best defined as the episodes of democratic populist constitutionalism.Footnote 64 Mirroring the minimalist core definition of populism by Mansbridge and Macedo, David Fontana puts forward an argument for ‘unbundling’ the anti-establishment and democratic part of populism from the authoritarian and xenophobic version.Footnote 65 In his most recent book, Mark Tushnet presents his case for popular constitutionalism, which in many aspects comes close to populist democratic constitutionalism.Footnote 66
Building on this tradition of democratic populism, Dani Rodrik argues that economic populism, which puts the people’s interests before the interests of autonomous regulatory agencies, independent central banks and global trade rules, can sometimes be justified:
In such cases, relaxing the constraints on economic policy and returning policymaking autonomy to elected governments may well be desirable. Exceptional times require the freedom to experiment in economic policy. Franklin D. Roosevelt’s New Deal provides an apt historical example. FDR’s reforms required that he remove the economic shackles imposed by conservative judges and financial interests at home and by the gold standard abroad.Footnote 67
As Robert Howse writes in the I-CON symposium, the ‘populist label is a form of “othering” that eschews serious engagement with those who see more promise than peril in today’s disruptive politics’, and that it is often attached to give ‘a pejorative cast on democratic politics of any sort that challenges elitist liberal democracy’.Footnote 68
He also observes that ‘[t]he answer, “That’s just … how we define populism” … seem[s] thoroughly question-begging’.Footnote 69 He distinguishes the policies of good (economic) populism from bad (political) populism. The policies of good populism, according to Howse:
…will be consistent with inclusion and pluralism – on the economic side, as Rodrik suggests, these would be New Deal-like initiatives that tax and regulate the wealthy, large businesses, but all the while allowing them to participate and continue to thrive in the polity.Footnote 70
Moreover, Howse identifies Bernie Sanders’ proposal to redistribute wealth without being confiscatory, to constrain the excesses of contemporary financial capitalism, not to nationalise the financial system, and to replace private with public capitalism, as belonging to this version of good/economic populism. Moreover, that Sanders:
… views the political arena as a battle of opposing classes (even more than Elisabeth Warren, he really does seem to hate the rich), but believes that their conflicts can be managed through elections and legislation. What Sanders calls a political revolution is closer to a campaign of far-reaching but plausible reforms.Footnote 71
In other words, rather than being a ‘threat’ to constitutionalism, Sanders’s version of democratic populism seeks to work within the legal constraints of constitutional democracy.
In the next section I turn to more recent empirical studies to see which versions of populism are more or less compatible with constitutionalism and the rule of law.
1.3 Populism: Friend or Foe of Constitutional Democracy – Empirical Assessment
While the populist surge has become global, our knowledge about its political and legal implications remains anecdotal and contradictory. As Cass Mudde and Cristóbal Rovira Kaltwasser argue, the dominant and conventional position stipulates that populism constitutes ‘an intrinsic danger to democracy’.Footnote 72 Nevertheless, there are also some dissenting voices, which argue that populism is ‘the only true form of democracy’.Footnote 73 Despite the hegemony of the conventional position, Mudde and Kaltwasser claim that populism can work as either a threat to or corrective for democracy. Moreover, they maintain that depending on its electoral power and the context in which it arises, populism can work in many different directions. Moffitt argues that populism’s relation to liberalism is more complex than is usually asserted in the literature: that ‘populism is not necessarily the “opposite” of liberalism, but can be combined with it in different ways, to different degrees of commitment and success’.Footnote 74
One of the first more systematic quantitative studies examined populist and non-populist governments in Latin America from 1982 to 2012.Footnote 75 Another study analysed the impact of populist rule on liberal democracy in Europe and the Americas in the twenty-first century.Footnote 76 Although using different methods and conducted in different contexts, these studies point to striking similarities regarding how populists undermine democracy and liberalism. The first study, using data on nineteen Latin American states from 1982 to 2012, finds that populist governments erode institutional and legal constraints on executive power. The second study, analysing the impact of populist rule on liberal democracy in Europe and the Americas, comes to very similar conclusions. Both studies find that four essential elements of liberal democracy came under populist attack. The first one includes essential checks and balances on the executive branch, like legislatures, courts, electoral agencies, central banks and ombudsmen. Populists systematically evade and override these checks on executive power. Christian Houle and Paul Kenny, for example, find that after four years of populist rule, courts have 34 per cent less independence than they would have under a typical democratic government. The next target of populists is the free media. Populists do not like criticism from the media, which they see as elite subversion of the will of the people, and they frequently threaten or restrict media outlets. The third plank of liberal democracy that comes under populist attack are civil rights and liberties. The studies found that two terms of populist rule resulted in a 9 per cent decrease in this sphere, measured by the standard index of civil liberties. The last element of liberal democracy to suffer under populist rule is the quality of elections. Populists both change and violate these rules for their own political advantage.
When compared to these general patterns of subversion of liberal democracy around the world, the Hungarian and Polish cases look very familiar. Populist governments in Budapest and Warsaw have largely been following the pattern described in the two studies. Even if Hungary and Poland are not yet authoritarian regimes, the combined effects of the described attacks on the four pillars of liberal democracy show strong signs of a slide into authoritarianism. Moreover, both cases confirm that democracies today die slowly, incrementally: the most pervasive form of democratic decay today is constitutional retrogression that usually unfolds from ‘slow, incremental, and endogenous decay as opposed to the rapid external shock of a coup or an emergency declaration’,Footnote 77 which are the most frequent forms of authoritarian reversion.
Despite the fact that the Law and Justice government almost perfectly mimics the script used by Orbán, Poland is not yet Hungary. First, Orbán has been successful in capturing all four essential ingredients of constitutional democracy. The Polish populists, on the other hand, have made extensive progress in capturing only some, but not all, rule of law institutions and the media, while most of civil rights and liberties, and the fairness of the electoral system still remain in place.Footnote 78 Anna Grzymala-Busse argues that PiS cannot easily remake Poland into an authoritarian regime the way Fidesz was able to do.Footnote 79 Moreover, Law and Justice has only a small parliamentary majority and not the supermajority needed for a Hungarian-style constitutional rewrite. Furthermore, while Orbán has been in power for a decade, Kaczyński’s reign started only in 2015.
The Polish case, where the opposition to the new populist government is stronger than in Hungary, and where the new government has not fully yet dismantled all the bulwarks of the rule of law, thus represents only an unfinished version of authoritarian populism. As Ekiert and Foa show, Polish civil society has traditionally been the strongest in the region.Footnote 80 While heading in the direction of the Hungarian model, the Polish case can hardly be described as a non-democratic regime. This is also reflected in the Freedom House 2020 Report, where Hungary now has the lowest ranking in the Central European region and is considered a ‘hybrid regime’, and Poland’s score reached its lowest point in the survey, downgrading Poland’s status to a ‘semi-consolidated democracy’.Footnote 81
If the Hungarian and Polish cases almost entirely confirm the findings of the two above-mentioned empirical studies, many other more recent populist cases reveal much more complicated pictures concerning the effects of populism on liberal democracy and the rule of law.
Benjamin Moffitt, for example, argues that:
… a number of contemporary cases of populist radical right parties from Northern Europe complicate this characterisation of populism: rather than being directly opposed to liberalism, these parties selectively reconfigure traditionally liberal defences of discriminated against groups – such as homosexuals or women – in their own image, positing these groups as part of ‘the people’ who must be protected, and presenting themselves as defenders of liberty, free speech and ‘Enlightenment values’.Footnote 82
While Moffitt agrees that such a move toward what he calls ‘liberal illiberalism’ is often driven by an opportunistic populist agenda to put a more acceptable face on otherwise illiberal politics, he also emphasises that it is ‘misguided to portray populism as the direct opposite of liberalism’. Nevertheless, while many of these parties may claim to hold liberal values, ‘this is often a shallow commitment that is ultimately used for targeting minorities in a deeply illiberal fashion’.Footnote 83
Drawing a comparison with nationalist populism in East Central Europe, Rogers Brubaker shows how ethno-nationalism in Northern and Western Europe has shifted from nationalism to ‘civilisationism’.Footnote 84 This shift has been driven by the notion of a civilisational threat from Islam and has given rise to identitarian ‘Christianism’, which internalises liberalism, secularism, philosemitism, gender equality, gay rights and free speech as ‘an identity marker of the Christian West vis-a-vis a putatively intrinsically illiberal Islam’.Footnote 85 In East-Central Europe (ECE), on the other hand, ethno-nationalism remains fundamentally nationalist and deeply illiberal. As a result, the ECE version of nationalist populism externalises liberalism:
… construing it as a non-national and even anti-national project that subordinates the interests of the nation to foreign capital, on the one hand, and to foreign models of multiculturalism, Roma rights, LGBT rights, and refugee protection, on the other hand.Footnote 86
The Italian populist coalition between the League and the Five Star movement (M5S), which was in power only for fourteen months between 2018 and 2019, is a good example of the described complexity and ambiguity of populism in power. Matteo Salvini, the influential leader of the League and at that time Italy’s interior minister, was successful in pulling Italy to the far right. The main targets of Salvini’s shift to the right were immigrants and the EU.Footnote 87 Salvini’s political behaviour also showed some strong signs of populist impatience with institutions: he verbally attacked the Italian judges who challenged his hard-line anti-immigration policies.
In her study of the M5S, a senior partner in the Italian populist coalition, however, Lucia Corso shows that the M5S has largely supported constitutionalism and the rule of law.Footnote 88 One of the M5S key electoral promises from the coalition contract stressed the importance of a depoliticised judiciary and proposed to introduce a prohibition against magistrates who have run for political elections while maintaining their office in court. As she argues, the mainstream emphasis on populist purported anti-constitutionalism ‘may lead us to overlook the oppositional aspect of populism and its anti-elitist stance, which persists even when populists take power’.Footnote 89 Moreover, she claims that M5S often resorts to ‘legalism’ in order to carry out its political action, and:
… does not seem to display the features often ascribed to populist politics like decisiveness, disregard of formal law and a drive for a strong cabinet, thus threatening judicial independence. On the contrary, M5S has often relied on the power of the judiciary to carry out its moral battle against allegedly corrupt political power.Footnote 90
On the constitutional front, the populist government proposed a constitutional referendum to reduce the size of the Italian parliament from 630 to 400 in the Chamber of Deputies and from 315 to 200 in the Senate. Before the amendment the Italian parliament was among the largest in the world. The referendum was held in September 2020 and was supported by 70 per cent of Italian voters. Moreover, nearly all Italian constitutional specialists thought that the parliament was too large to govern effectively. Therefore, the referendum can hardly be described as anti-constitutional or anti-liberal. The key argument was that the move would reduce costs and slash privileges for lawmakers. Yet, remarkably, many leading Italian scholars opposed the referendum even though they supported reducing Parliament’s size on the merits.Footnote 91 They opposed what they acknowledged to be a ‘good government’ reform because its primary backers were populists – ‘the wrong means to the right end’, as one post had it.Footnote 92
In his overview of the populist engagement with constitutionalism, Matteo Bonelli argues that the Italian populist coalition ‘left no deep scars on the Italian constitutional system’.Footnote 93 His analysis shows that the populist government had hardly undermined any of the key pillars of Italian constitutionalism. As reported by Bonelli, ‘there has simply been no structural undermining of institutional safeguards and democratic and rule of law institutions’.Footnote 94
Austria, a second Western European country with a populist coalition in power from 2017 to 2019, also offers an example of populist government that had not directly attacked the key pillars of liberal constitutionalism. On 18 December 2017, a new Austrian government took office, consisting of a coalition between the conservative People’s Party (ÖVP) led by populist Sebastian Kurz, and the right-wing populist Freedom Party (FPÖ). In Austria, as in some other Western European democracies, the centre-right party (ÖVP) adopted a new strategy in its struggle with the, at that time, seemingly invincible populist right. To boost its own poll numbers, the ÖVP embraced the anti-immigration, anti-Islam, and tough law-and-order stance of the FPÖ in the run-up to the elections. The right-wing populists didn’t dominate the government but they achieved much of their regressive policy agenda, because their major competitor adopted some of that agenda as its own. But not all of the agenda – and in particular not the parts of the agenda most incompatible with constitutionalism. There have been no attacks on the independent judiciary or legislative branch of government. Apart from immigration, where both parties shared common language and policies, Kurz acted as a force of restraint, blocking several of FPÖ’s radical populist initiatives. For example, unlike FPÖ, he promised to promote economic liberalism and cultural pluralism.Footnote 95 He consistently pushed back against the Freedom Party’s blatantly anti-Semitic, anti-immigrant incidents and sometimes even legally questionable activities.Footnote 96
One possible take from the episode of populism-in-government in Austria is that when a more radical, right-wing populist party like the FPÖ is forced to cohabit in a coalition with a more moderate populist coalition partner, then the behaviour of the senior, moderate partner matters a great deal. As Ziblatt and Levitsky show, when such mainstream parties entered into the ‘fateful alliances’ with more authoritarian parties, their ‘gate-keeping’ function and their resolve to resist the authoritarian impulse of their authoritarian political partners has so far been decisive for the fate of democracy.Footnote 97
Both the Italian and Austrian populist governments were in power only briefly, and all we can say is that those populist governments did not immediately go after liberal constitutionalism. Still, their behaviour is a mark against the argument that populism is always and everywhere anti-constitutional. Coalition needs restrained populists-in-government. That means that we can’t reject the possibility that the more extreme populist coalition party would be anti-constitutional were it able to govern on its own. Here, electoral systems matter. Both Italy’s and Austria’s encourage the formation of coalition governments though one-party government has occurred in modern Austria.
Moreover, even though the populists have not weakened the core institutions of liberal democracy, they strongly attacked many of the ‘unwritten norms’ which provide the institutional glue making the legal institutions work. Both in Italy and Austria, the populist parties questioned the legitimacy of the opposition parties, attacked them on the domestic and European level and showed quite little self-restraint and fair play when they attacked their political ‘enemies’.
A more recent empirical study, analysing data from thirty European countries between 1990 and 2012, suggests that when examining the relationship between populism and democracy, populism should not be considered in isolation from its host ideology.Footnote 98 In other words, instead of studying populism in general, we should analyse real – empirical – effects of ‘really existing populisms’ in their different manifestations and contexts. The study tests distinct effects of left-wing and right-wing populism on democratic quality. Its major findings are that right-wing populism has a stronger negative effect on minority rights than left-wing populism, and that there is no conclusive evidence that both types of populism have the same effect on the ‘mutual constraints’ (checks and balances). Their finding is further strengthened by another special issue’s claims, arguing that:
… rather than simply assuming that populism is good or bad for democracy, empirical research based on the ideational approach allows to analyse the conditions under which populist forces can have a positive or a negative impact on real existing democracies as well as during different phases of (de)democratisation.Footnote 99
What is the empirical record for a democratic or left-liberal version of populism? Moffitt argues that there are left-wing populists ‘who often extend their conception of “the people” to include various minority groups, which on the face of things seems to be in line with pluralism and liberalism’.Footnote 100 Contrary to Mudde, and to Müller, Moffitt shows that left-wing populists ‘have put forward characterisations of “the people” that cannot seriously be considered either “pure” or “homogenous”’.Footnote 101 Examples include Syriza in Greece, Podemos in Spain, Jean-Luc Melenchon’s La France Insoumise, Raffael Correa in Ecuador, and Evo Morales in Bolivia. Mudde and Kaltwasser identify parties such as Podemos and Syriza and movements such as Occupy Wall Street and the Indignados as cases of populism, noting ‘that the latter tried to develop a definition of the “people” that was inclusive to most marginalised minorities – including ethnic, religious and sexual’.Footnote 102 But when it comes to the question how left-wing populists deal with the independence of institutions that are essential for the functioning of liberal democracy, he claims that they ‘are no friends of independent institutions’.Footnote 103 To bolster his claim, Moffitt surprisingly uses only the examples of Latin American left-wing populists (Correa, Chavez and Morales). On the other hand, when it comes to populists’ attitudes toward democracy, Moffitt argues that:
… the majority of left-wing populists in Europe and North America – including leaders such as Bernie Sanders or Jeremy Corbyn, parties such as Podemos, and the movements of the squares … cannot be seriously accused of authoritarianism either.Footnote 104
As Pippa Norris and Ronald Inglehart argue, left-wing populism is less common as a type of populism, but their support has also grown in recent years in Europe and also in the United States.Footnote 105 While Syriza has often been accused of ‘trying to undermine the independence of courts and free media’,Footnote 106 there is no solid empirical evidence to confirm this argument. There is only anecdotal evidence of a few attempts of Syriza to criticise unfavourable judgments of the courts and to influence the media, but Syriza has never tried systematically to undermine the key rule of law institutions, as populists do in Hungary, Poland or Venezuela. As one empirical analysis of Syriza’s political rhetoric shows, it represents the case of:
… inclusionary populisms, reclaiming ‘the people’ from extreme right-wing associations and reactivating its potential not as an enemy but rather as an ally of democracy in times of economic and political crisis.Footnote 107
Not surprising then that Moffitt strongly rejects Yascha Mounk’s claim about Syriza’s purported transition from populism to dictatorship.Footnote 108 Another study argues that Podemos in Spain represents ‘a clear radical left-libertarian universalistic profile advocating minority rights, gender equality and civic liberties, pledging also to fight discriminations’.Footnote 109
These examples of democratic, liberal, socially inclusive forms of populism quite clearly show that authoritarianism and anti-pluralism are not necessarily the key elements of populism. I agree that some populist movements have the characteristics described by Müller, Mudde, Kaltwasser and Walker. Once we examine various populisms, though, we find that the relation between populism tout court and constitutionalism is far more complex than the common view has it. My conclusion is that sometimes we can see such a tension and sometimes we cannot, and that the analysis of specific populisms and their policies in relation to constitutionalism must be highly sensitive to context.
The literature on populism has concentrated mostly on three questions: what is populism, why populism and how does it operate to undermine constitutional democracy?Footnote 110 As Gardbaum correctly points out, the fourth, ‘Leninist’ question – what is to be done? – is becoming the central question. However, without understanding the what, why and how questions, it is difficult to understand the true roots of populism and, consequently, to devise appropriate solutions to populist challenges. After spending the first two sections of this chapter on what, why and how questions, I turn to what is to be done in the next section.
1.4 Solutions
Scholars have started to debate what categories of response to populism are likely to be most useful and effective in dealing with illiberal and authoritarian populist challenges. Gardbaum identifies three broad categories of responses:
(a) the importance of constitutional design,
(b) revitalisation of constitutional/democratic norms, and
(c) substantive policy issues.Footnote 111
It should not come as a surprise that constitutional scholars spend most of their time on the first category. Many of them have argued that the most significant bulwark against the populist attack on constitutional democracy is proper constitutional design.Footnote 112 While they acknowledge that sustaining a democratic order relies on many factors and institutions, including political parties, they cling on to the belief that the reliance on proper constitutional design is the best way to protect democracy from backsliding.Footnote 113 For some time, their wisdom seemed to have been almost validated by political developments around the world. In many emerging democracies, such design included, inter alia, powerful constitutional courts, which have played a major role in building constitutional democracy during transition periods and have served as symbols of the rule of law. The constitutional courts of Hungary and South Africa emerged over a relatively short period of time as the most influential rule of law institutions in their respective countries. Their power to review the constitutionality of statutes challenged the almost absolute supremacy that legislatures had previously enjoyed. Stephen Gardbaum constructs the ‘counter-playbook’, consisting of constitutional courts and other essential constitutional institutions most likely to help resist populist assaults on the separation of powers: his counter-playbook includes federalism, bicameralism, forms of government (presidential vs parliamentary), electoral systems, the independent judiciary and the media.Footnote 114
Yet the last few years have exposed the institutional fragility of the constitutional courts and other rule-of-law institutions when targeted by determined autocratic populist leaders. In countries like Hungary, Poland, Turkey and Venezuela, the new populist governments have managed, with relative ease, to pack the courts with their own loyalists and to curtail these institutions’ independence, rendering them powerless. All this suggests that when a strong authoritarian leader or government is in power, the rule of law might not be the most effective tool for curbing the power of the autocrat. The populist onslaught against the constitutional pillars of democracy has shown that the traditional ‘checks and balances’ such as courts, independent electoral bodies, free media, and civil and political rights might not be as powerful in defending democracy from backsliding towards autocracy as many legal scholars tend to believe. Even Issacharoff, a strong defender of ‘militant democracy’, is willing to concede this point. In a more recent article, he argues that ‘it is doubtful that courts can hold out for long if the institutions of democratic governance do not take root’.Footnote 115 Under such circumstances, there is little that a constitutional court can do to stop the authoritarian drift. In retrospect, we see that the post-communist reformers place too much faith in the courts. Constitutional courts and other rule-of-law institutions in Central and Eastern Europe always lacked the requisite strong support of genuinely liberal and democratic political parties and programmes, leaving the courts vulnerable to attacks from populists. In one of his most recent papers, Krygier thus asks the following question:
… why has it been so easy for populist subversion of constitutionalist and rule of law values and institutions to occur where, only thirty years ago, they seemed to have been welcomed as indispensable ingredients of the normality so many citizens of the region professed to admire?Footnote 116
Sean Hanley and James Dawson argue that the major problem of post-communist liberal democracy is that it never was a real liberal democracy.Footnote 117 Its liberal institutions have always been merged with existing illiberal narratives, such as ethnic nationalism and social conservativism. Moreover, they argue that despite what appearances may suggest, a commitment to the norms of political equality, individual liberty, civic tolerance and the rule of law has never been deeply internalised in the region. Behind a facade of harmonised legal rules transposed from various EU legal sources, several cracks have begun to appear, exposing the fragility of constitutional democracy in these countries. Several recent studies emphasise this aspect and argue that formal democratic institutions operate ‘in the shadow of informal networks’ which undermine formal law and institutions. Responding to Hanley and Dawson, Ivan Krastev argues that the crisis in ECE is not only a crisis of liberal values but also a genuine crisis of liberal democracy, stemming from major economic failures and the fact that the liberal order simply did not deliver what it had promised in 1989.Footnote 118
A recent empirical study finds that ‘the presence of independent courts alone might not be enough to stop a government determined to curb its citizens’ rights’.Footnote 119 Moreover, the same study offers another finding showing that constitutional rights do not appear to be better protected in countries with independent courts equipped with the power of judicial review. The main reason behind this paradox is the fact that the enforcement of rights ultimately falls on citizens themselves. When citizens are organised, they can resist rights violations through various forms of civic action. Where such mobilisation is weak, the protection of rights is less effective.
After reviewing a number of other essential features of liberal constitutionalism (federalism, the separation of powers, electoral systems and the bill of rights), Huq, Ginsburg and Versteeg come to a sobering conclusion: ‘at best, constitutional design features serve as speed bumps to slow the agglomeration and abuse of political power; they cannot save us from our worst selves completely’.Footnote 120
In a recent comparative study of democratic backsliding, Levitsky and Ziblatt argue that institutional safeguards like constitutional checks and balances are less effective in protecting democracy than we think.Footnote 121 More important than institutional safeguards are the ‘unwritten democratic norms’ that reinforce democratic institutions. As essential informal norms, they identify mutual toleration and forbearance (partisan self-restraint and fair play). Mutual toleration essentially means that competing political parties accept one another as legitimate rivals. Forbearance is the opposite of ‘constitutional hardball’ as defined by Mark Tushnet: playing by the rules but pushing against their boundaries.Footnote 122 It entails a partisan self-restraint in using one’s institutional prerogatives. The examples that Ziblatt and Levitsky mention are the sparing use of the Senate filibuster, a bipartisan consensus on impeachment, or the deference of the Senate to the President in nominating Supreme Court justices. Such informal social norms represent the ‘soft guardrails’ of democracy, helping it avoid the extreme polarisation and partisan fight to the death that has destroyed numerous other democracies around the world. Ziblatt and Levitsky develop a litmus test, consisting of four behavioural warning signs that can help us identify an authoritarian leader. They include a rejection of or weak commitment to democratic rules of the game, a denial of the legitimacy of political opponents, the toleration or encouragement of violence and a readiness to curtail civil liberties and media freedom. What is remarkable is how similar these warning signs are to usual strategies that populists use to subvert democratic institutions. The most recent violent attack of Trump’s supporters on the Capitol, the cradle of American democracy, incited by the out-going US president Donald Trump is probably one of the best examples of such authoritarian behaviour.
Wojciech Sadurski concurs, arguing that far more important than constitutional design are social norms, which provide ‘shared understanding and dispositions’ on which constitutional design rests:
Institutions must be underwritten by norms which are by-and-large shared, and by common understanding about what counts as a norm violation, even if formal legal rules are silent about it. No institution can survive without a reasonable consensus about norms.Footnote 123
In addition to informal democratic norms, political parties and civil society play a crucial role in the defence of constitutional democracy. Huq and Ginsburg argue that ‘the near-term prospect of constitutional liberal democracy hence depends less on our institutions than on the qualities of political leadership and popular resistance’.Footnote 124 Moreover, ‘it is crowds marching the streets, and the people taking it upon themselves to enforce the social contract, that ultimately are the best protector of liberal constitutionalism’.Footnote 125 In their book, Why Civil Resistance Works, Chenoweth and Stephan show that non-violent resistance in the form of boycotts, strikes and protests deters autocratic backsliding.Footnote 126 An original, aggregate data set of all known major non-violent and violent resistance campaigns, from 1900 to 2006, is used to test these claims. Similarly, Berman argues that it is a long-term democratic struggle that should be credited for the development of liberal democracy in most of the European states.Footnote 127 After reviewing two centuries of turmoil characterising the development of liberal democracy in the UK, France, Germany, Italy and Spain, Berman concludes that ‘fighting back against the populist tide and avoiding illiberal democracy therefore requires finding ways to remove the barriers that have weakened contemporary democracy and to encourage greater citizen participation’.Footnote 128 This aspect is best illustrated by Martin Loughlin’s argument:
The basic point is that if constitutional democracy is in a critical state, solutions are unlikely to be found by focusing only on ways of strengthening liberal institutions. Remedies must be considered that take seriously the need to reinvigorate democratic aspirations.Footnote 129
As Diamond argues ‘[d]emocracies fail when people lose faith in them and elites abandon their norms for pure political advantage’.Footnote 130 This is exactly what is happening in Hungary and, to a lesser extent, in Poland. In Hungary, increasing numbers of political leaders and citizens are willing to tolerate the authoritarian politics of Orbán’s government in exchange for a better protection of their security, social benefits and political status. Poland is embarking upon such a journey. With the most recent package of legislation aimed at curtailing the independence of the Supreme Court, the PiS government has found itself on the banks of the Rubicon of Polish democracy. The strength of the Polish opposition and the vitality of Polish democracy are being tested here. If PiS gets its way, the gates for a further backsliding of constitutional democracy in Poland will be wide open.
This is not to suggest, however, that during the early stage of the populist turn to authoritarianism, rule of law institutions are not important. The Polish case, where opposition to the new populist government is stronger than in Hungary and where the new government has not yet fully dismantled all the foundations of the rule of law, is a litmus test for the capacity of rule-of-law institutions to prevent democratic backsliding. Two conclusions from this brief review of the literature emerge. One is that law has only a weak role in preventing a breakdown of constitutional democracy when democracy is not the only game in town and when democratic support for constitutional checks and balances is eroding. In other words, law, rule-of-law institutions and lawyers are necessary, but not sufficient, conditions in these circumstances.Footnote 131 The second one shows that the constraining role of law differs in different stages of the rise of populism. During the early stage of the rise of authoritarian populism, constitutional design features serve as ‘speed bumps’ to slow the deconsolidation of liberal democracy.
What is peculiar about the current populist surge is the dominance of authoritarian over democratic populism. How is it that nativist, authoritarian populism has become so powerful? Without understanding the political economy of the populist revolt, it is difficult to understand the true roots of populism, and consequently, to devise an appropriate democratic alternative to populism. Yet, surprisingly few studies of current populist explosion venture in this direction. Most of the accounts try to explain populism as ‘the result of impersonal forces’, of ‘globalisation’ and ‘technological change’, of cultural change, or, even worse, as merely a failure of representative politics, without properly addressing the structural roots of populism as it is embedded in the political economy of modern capitalism. By contrast, Samuel Moyn and David Priestland criticise approaches which focus only on the perceived threat of populism to liberal fundamentals and argue for a stronger emphasis on ‘the deeply rooted forces that have been fueling right-wing populist politics, notably economic inequalities and status resentments’.Footnote 132
The populist backlash in essence represents a delayed Polanyian response to the destructive forces of the unfettered logic of free markets.Footnote 133 As Karl Polanyi demonstrated in his book, The Great Transformation,Footnote 134 when markets become ‘dis-embedded’ from their societies and create severe social dislocations, people eventually revolt. Despite important differences between the new populist forces in Europe, they have:
… more in common than we think. They are all pro-welfare (for some people, at least), anti-globalisation, and most interestingly, pro-state, and although they say it sotto voce on the right, anti-finance.Footnote 135
As Chantal Mouffe argues, populists are not necessarily against the European project as such, but rather against the neo-liberal incarnation of the European project.Footnote 136
Much like in the 1930s, the protagonists of ‘the social’ appear in different political forms, ranging from the extreme right to the extreme left on the political spectrum. Some of populist visions of emancipating ‘the social’ often bear an uncanny resemblance to illiberal and authoritarian ideals from the 1930s. Nevertheless, reinventing the new ‘social’ for a twenty-first century context remains one of the most important tasks for democrats today. Otherwise, they are likely to repeat the mistake of defenders of the ‘interwar democracy’. By focusing on constitutional rights and neglecting social responsibilities, they created an outdated model of constitutional democracy which couldn’t help prevent the rise of authoritarianism in Europe.Footnote 137
1.5 Conclusion
Around the world, governments characterised by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism.
This chapter challenges that commentary. I agree that some variants of populism are incompatible with modern liberal constitutionalism but argue that the tension between populism as such and constitutionalism as such, though real, is significantly narrower than much commentary suggests. My conclusion is that sometimes we can see such a tension and sometimes we cannot, and that the analysis of specific populisms and their policies in relation to constitutionalism must be highly sensitive to context.
