In an age of profound democratic anxiety, significant academic attention has been paid to the crisis in constitutional democracy. Constitutional lawyers, however, are still grappling with the relationship between public law and the current actual and perceived threats facing constitutional democracy in countries worldwide. This Introduction considers how the articles in this special volume address three pressing questions. How should we should define the current threats to democracy, and populist challenge? Second, how might public law be a potential cause or contributing factor? Third, how might public law still provide some answers to the contemporary challenges to constitutional democracy? In Prof Dixon’s view, constitutional democracy is a good worth preserving and there are models of at least relative “success” in the current constitutional universe. But Prof Dixon shares the view of many contributors to the special volume that the challenge is immense, and urgent, and that there are no easy solutions.

Populism is a particular type of constitutional pathology; a brand of groupthink in which a leader establishes a direct connection with the people and, by virtue of this connection, is able to govern outside the established constitutional processes of the state. This Article reflects on the interaction between populism and political parties. It argues that one of the roles of political parties is to act as a medium between political elites and the people; a medium that can, or should, enable the people to exercise control over this elite through their membership of parties. Populism therefore presents a threat to the proper operation of political parties, and the proper operation of political parties correspondingly threatens populism.

This Article begins by reflecting on the nature of populism. It does not pretend to provide a complete account of that phenomenon, but rather aspires to identify one strand of populist rule: A particular type of connection between the leader and her people. Second, the paper reflects on the constitutional role of political parties. Whilst political parties have often been treated critically in British constitutional scholarship, it will be argued that they are essential to the success of the democratic process: Modern representative democracy cannot function in their absence. Finally, these two sections of the paper will be drawn together: One explanation for the rise of populism is the weakness of political parties, and one way of combating, or mitigating, populism is for the state, and the citizenry, to support and facilitate parties. This Article suggests a correlation between the decline of political parties and the rise of populism, but it cautiously avoids making claims of causation. It could be that the decline of political parties leads to the rise of populism, as voters who are faced with a choice of superannuated parties turn, instead, to charismatic individuals. Or it could be that the rise of populism leads to the decline of political parties, as voters develop a direct relationship with leaders and, as a result, cease to engage with each other within the context of parties. Or, perhaps, these interactions might occur together, forming a feedback loop, with the decline of parties leading to the rise of populism which, in turn, hastens party decay.

Latin American history is full of populist experiments. The result of this history is a political culture across the continent characterized by conflict and polarization. The most recent wave of Latin American populism is represented by neo-populism. Neo-populism identifies itself as the “socialism of the 21st century.” Its most representative expression is the Chavista regime, which was led first by Hugo Chávez, and then by Nicolás Maduro. This Article, after examining what populism is, considers how regional human rights institutions of the Americas have dealt with the Chavista regime. In doing so, this Article describes the efforts deployed by both the Inter-American Commission and the Inter-American Court of Human Rights to keep Chávez under control. This Article concludes that regional human rights supervision, being relevant in the context of the Venezuelan experience, was finally incapable of either preventing or stopping the authoritarian path adopted by Chávez. This was because: (a) early supervision over the Chavista regime did not avert its leaders from abusing human rights afterwards; and (b) intensifying regional supervision over the regime became paradoxically self-defeating after it took full control of the State apparatus.

Constituent power is a helpful component of constitutional theory because it provides a conceptual and potentially normative explanation of how a new constitution can be made without any existing legal authority to do so. Contemporary theories of constituent power, however, unhelpfully treat constituent power as a fictive entity, typically the people, that subsists through time. This predominant account of constituent power fails adequately to explain examples of constitution-making and also lends support to the populist claim that a unitary and unchanging people has an immanent but continuing role as a constitutional actor superior to the constitution itself. This enables populist leaders to rely on prevalent understandings of constitutionalism to support the sidestepping and/or removal of constraints on their power. In this Article, I trace the connections between mainstream theories of constituent power and the academically peripheral claims of populist constitutionalism. I argue for a different understanding of constituent power as a capacity that, in principle, may momentarily be exercised by any entity. This explains how a new constitution can unlawfully replace a pre-existing constitution yet come to have lawful authority itself, without implying the diachronic existence of the constituent power as an entity. I illustrate this understanding of constituent power with reference to the constitutional development of Taiwan and Ireland. These examples show—contrary to the predominant account of constituent power—that constitutional systems may be created without the exercise of constituent power and that constitutional law can play an important role in constructing an entity capable of exercising constituent power. Seen in this way, popular references in preambles are important not for their account of how a constitution was made but rather for their account of whom a constitution is for. This account of constituent power undermines core claims of populist constitutionalism. But it also provides a salutary lesson for liberal constitutionalists: a constitution adopted for a people must broadly serve the interests of that people.

This Article analyzes the state of democracy in the EU through the study of the European Citizens’ Initiative. The European Citizens’ Initiative (ECI) represents one of the main ways the European institutions chose during the making of the European Convention, and then reproduced in the Lisbon Treaty, to beat populism by bringing decision-making closer to the citizens and promoting a new legitimization of Europe’s political unity. This Article starts by arguing that if one wants to understand European versions of populism it is necessary to pay attention to the reason why “democratic deficit” and “Euroscepticism” are predominant problems that the European Union is facing. It then analyzes the implementation of the ECI and the main issues of this instrument of democratization pointing at three flaws: a) the problem of e-democracy; b) the difficulty of stimulating large participation of civil society and people for the purposes of the ECIs; c) the cumbersome role of the EU Commission and the difficulties to ensure a real participatory instrument for the European citizens. From the analysis of the ECI this Article first advocates for a more robust public sphere in Europe as indispensable ground for a supranational democracy; second, it supports the revision of the ECI procedural aspects to transform it into a viable channel for amending EU policies in a more democratic way; third, this Article participates in the debate over the brand of democracy most suited to EU governance and polity.

Most contemporary constitutionalists exhibit a highly critical attitude toward populism, seeing it as one of the main reasons for the “erosion” of liberal democratic institutions in a growing number of countries around the world. Other constitutional theorists, who are less hostile to the populist phenomenon, remain open to the prospect of a genuinely populist constitution. Irrespective of their differences, both camps take the existence of populism—itself a highly contested concept—for granted. In challenging this implicit consensus in constitutional theory about the actual existence of some observer-independent “populism,” this essay proceeds from two assumptions. One: like all political concepts, populism is a concept which, irrespective of the intentions of those who articulate it, has polemical implications. Two: like all polemical concepts, populism is a concept that must be “staged”. What that means are, again, two things. First, populism is staged because its meaning emerges against the backdrop of dramatized scenes that confront us with concrete political actors, impersonal technological tendencies, important historical events, elusive cultural atmospheres and broader socioeconomic landscapes. In most constitutionally relevant depictions of those scenes, populism emerges as a grave, if not yet existential, threat to liberal democracy. Which brings us to the second sense in which populism ought to be understood as “staged”: not just as an abstract concept propped up by concrete imaginings of protagonists, events, tendencies, and challeneges, but as a stage-prop: a polemical device whose function is itself dramatizing. Portrayed as a “regime,” painted in dark colours, and situated in opposition to liberal democracy, populism is a figure whose role is to make the face of liberal democracy look more appealing. If so, there is no reason not to look at populism as a rhetorical distraction from other, potentially more fruitful questions such as: What are the actual institutional features of liberal democracy—not as some abstract template of legitimate government —but as a specific, historically mutable, socio-economic and psycho-social regulatory regime? In what sense do such regimes have a “constitution”? In whose interest are constitutional theories that remain indifferent to those regimes’ realities? Offering a fresh look at how liberalist critics of populism project this “ideology” or “regime” on a stage on which it appears as a threat to liberal democracy, this article offers a vantage point from which to begin systematically confronting these questions.

This Article explores whether and how contemporary constitutionalism may have triggered or facilitated populism and its illiberal agenda. In particular, it focuses on some of the legal doctrines that have characterized the growth of transnational and supranational judicial fora, contrasting them with populism in Europe. The Article first sketches the role of courts in shaping contemporary transnationalism and supranationalism in Europe. Then, it analyzes the role that the ideals of progress and equality have played in the judicialization of pan-European legal culture. Finally, it ponders the consequences of the constitutionalization process of European law for the role of democratically accountable institutions.

Populist political movements claim to be democratic in expressing what the people want, against the political establishment. These claims are misconceived to begin with in presupposing a definitive unitary people. Nonetheless, constitutional democracies face a special challenge to resist these claims in principle because they are unmistakably democratic sounding claims; they purport to empower popular will so that the people can rule themselves. Populist movements can be successful at the ballot box and push political culture in antidemocratic directions through democratic means, all the while claiming democratic legitimacy. The very processes of democracy are under threat. Traditionally, political winners are not motivated to change the system that saw them elected; populists are different in this regard. The populist challenge prompts a revisit of the debate about the democratic legitimacy of judges being empowered to displace the decisions of elected legislative assemblies (the constitutional review debate). An underdeveloped aspect of the constitutional review debate was the scope for courts to intervene specifically in political processes to correct them when they have gone awry and to help prevent them going awry in the first place. Judicial intervention is costly in democratic terms, and yet democracy has to be protected. This Article analyzes the search for a balance between popular will shaping democratic processes and judicially managed constitutional limitations on popular will shaping those processes. The recommended judicial role is styled as courts protecting—not perfecting—democracy, and it is a John Hart Ely-inspired modification of a separation of powers defense of constitutional review. In addressing the populist challenge, courts can, in principle, try to be a step ahead in anticipating and, where they can, slowing degradation of democracy and thereby helping to prevent it.

The Japanese Constitution has never experienced any amendment since its enactment in 1947. This article claims that the reason is not the Japanese people’s support of it from the heart. The hypothesis presented in this article is that many other political, structural and cultural reasons have gradually deprived the Constitution’s normative force among people, and have made constitutional amendment unnecessary in Japanese politics.

The populist challenge to constitutional democracy—and constitutionalism as its modus operandi—is significant and raises deep questions regarding the nature of modern democracy. A crucial question pertains to the challenge that our existing (but eroding) democratic systems faces. The way we perceive this challenge is essential for our descriptive and prescriptive contributions. The first, perhaps most widely embraced view, is to perceive populism as a ‘disease’, ‘deviation’, or ‘pathology’ of existing democracy. A second view understands contemporary ‘neo-populisms’ rather as one particular instance of a rather profound, complex, and long-term set of transformations of democracy. Where we stand on this matter is of great importance, as the feasibility and potential success of our responses and solutions depend on our description of the problem. Many of the contributions to this special issue clearly go beyond the current state-of-the-art, in which populism and constitutionalism are often seen as mutually exclusive categories. The special issue provides ample reflection on intrinsic problems in constitutional democracy itself, and, taken as a whole, stimulates a self-reflexive and historically informed scrutiny of the modern projects of liberal democracy and constitutionalism, so as to provide due acknowledgement of the political and conflictive origins of the project, as well as of its current deficits.