What does Populism have to do with Constitutional Law? Discussing Populist Constitutionalism and its Assumptions Lucia Corso
Abstract. The essay aims at discussing a theory of constitutionalism which has fostered a strong debate among US legal scholars, i.e. populist constitutionalism, and at understanding the reference to populism made by populist constitutionalists. More in particular, it will be argued that populist constitutionalists contend that the US Constitution shall be interpreted to protect the silent majority against the minority usually holding institutional offices; that it claims a commitment to a strong congruence between public policy and popular opinion; and that it rests on anthropological assumptions benevolent to ordinary people usually denied by the conventional view of constitutionalism. Keywords: Populism, Democracy, Ordinary People, Constitutionalism.
1. Beyond the oxymoron To many, the idea of a populist constitutional law appears to be an oxymoron. The most common view holds that constitutional law is designed, among other things, to prevent or limit the spread of populism (Ferrajoli 2003a, 2003b; Pinelli 2013), first because populism is usually associated to illiberal politics; second, because populism is viewed at its essence as an anti-system phenomenon, directed at mobilizing masses against established institutions, while constitutionalism is meant to build and fortify political institutions. Henceforth populist constitutionalism is a contradiction in terms. However, in the last twenty years appeals to populism made by constitutional scholars have not been rare in the US legal literature. In 1997 Akhil Reed Amar made the following disclosure: “I might say that I am a constitutionalist, a textualist, and a populist” (Amar 1997, 1657). Three years before Amar’s confession, in the course of the prestigious Seeger’s Lectures, Richard Parker (1993) had launched a populist manifesto with an expressive title: “Here, the people rule” (Parker 1993). Following the populist stream, Rivista di filosofia del diritto [III, 2/2014, pp. 443-470]
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Sanford Levinson launched an article V convention, calling the people of the United States which have allegedly been emasculated from greedy and self-interested politicians to assemble for a constitutional radical amendment (Levinson 1999, 216). We owe, however, to Mark Tushnet the first extensive discussion on the topic. In his provocative book, Taking the Constitution Away from the Courts, Tushnet (1999) has intertwined claims in support of populist constitutionalism with arguments against judicial review. From that moment on, populist constitutionalism has become the object of passionate defenses and fierce attacks (Sunstein 2009; Nowlin 2001, 2003) which have spilled over also onto the legal theory, as new coinages such as “populist natural law” (Michelman 2000) or “populist jurisprudence” (Batt 1995) seem to point out. Intuitively, the combination among populism and constitutionalism sounds odd especially to an European ear. One way of solving such a contradiction is to claim that the appeal to populism made by populist constitutionalists is simply inappropriate from a nominal point of view (Graber 2000, 2002). Although they refer to populism, so the argument rings, populist constitutionalists actually mean something else, e.g., participatory or aspirational democracy. According to this nominal objection, the populism of populist constitutionalism has nothing to do with the analyses of the phenomenon carried out by political scientists, historians, and political philosophers. Departing from such a way of reasoning, it will be argued that the reference made by constitutional scholars to populism is intentionally aimed at embracing some authentic populists’ wishes. More in particular, it will be argued that populist constitutionalists contend that the US Constitution may be interpreted to protect the silent majority against the minority usually holding institutional offices; that it claims a commitment to a strong congruence between public policy and popular opinion; and that it rests on anthropological assumptions benevolent to ordinary people usually denied by the conventional view of constitutionalism. In the end a brief reference to the most common views of populism widespread in the European literature will be made and it will be argued that the skepticism of the European constitutional literature towards populist constitutionalism and the contrary predominance of conventional constitutionalism have its roots in a deep distrust in ordinary people’s wisdom.
2. Political constitutional law In 1985, Mark Tushnet accused the US dominant constitutional legal culture of pervasive formalism, which he detected in an allegedly excessive confidence in the constrains and public criteria which constitutional theory 444
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provided to evaluate judges’ decisions (1985, 1505). At the same time, Tushnet exhorted the growing legion of anti-formalists, which included Robert Cover, Owen Fiss, Cass Sunstein, among others, to make their claims more robust in order to contrast the conventional view of constitutionalism’s three main contentions: i.e., that constitutional law is law and therefore distinct from politics and qualitatively different from ordinary law; that it is mainly enforced by judicial review; that its main function is the protection of individual or minority rights against the flaws of majoritarianism. Tushnet argued that the anthropological foundations of the conventional view were mainly Hobbesian. Few years after such an appeal to anti-formalist’s forces, U.S. constitutional theory has been substantially shaken by the appearance of a growing literature which acknowledge the social and political bases of constitutional law. Since then, political constitutionalism has become a prominent view among US and UK constitutional scholars, as the studies of Ackerman (1991), Waldron (1999), Bellamy (2007) and Kramer (2004) seem to confirm. Although theories captured under this label may vary significantly, political constitutionalists share three main common features. First, they reject a clear cut distinction between law and politics. While for legal constitutionalists written constitutions, constitutive of the legal and political system, superior to other legislation, entrenched against change, and enumerating justiciable rights, guarantee equal respect and concern for all citizens (Ferrajoli 2010), political constitutionalists argue against the normative priority of law over politics. For political constitutionalists judicial review is not crucial and, as a consequence, theories on the interpretation of constitutional rights lose the centrality they have in legal constitutionalism. Second, political constitutionalists depart from the so called substantive concept of democracy whereby democracy assumes certain moral values, notably that all citizens deserve equal concern and respect as autonomous rights-bearers and that a constitution is necessary to ensure that even democratically made laws adhere to them. On the contrary, political constitutionalism stresses the participatory element of democracy and the importance of political procedures, elections above all, over court rules. Third, political constitutionalism rejects the common view which assigns mainly to courts – and to the Supreme Court in particular – the task to implement the Constitution. By advancing a different assessment of powers and responsibilities among political institutions, political constitutionalism emphasizes the role of elected bodies, the Congress, the Presidency, State Legislatures, as well as local bodies such as school boards or the jury, in making the Constitution live. On its appearance, political constitutionalism was predominantly aimed at contrasting the legal view of constitutional scholars who stressed the valWhat does Populism have to do with Constitutional Law?
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ue of rigidity over social or political changes of the Constitution, and at defending pluralism in the interpretation of constitutional rights over the doctrine-oriented approach sustained by supporters of a strong judicial review. While most of the debate was mainly carried in the vein of the querelle between foes and friends of an active Supreme Court (Waldron 2006 and Fallon 2008) some scholars took a different turn. It is with them that political constitutionalism became populist.
3. Populism in the US political tradition Populist constitutionalism is a self-definition. While in political discourse populist is an attribute commonly attached from outside and often with a derogatory meaning, for the scholars who locate themselves inside this stream of thought populism is referred to as a form of distinctive claim. To understand what may seem an anomaly within constitutional theory, it is necessary to remind that populism is a phenomenon which has received a certain degree of approbation by US historians and political thinkers. Hence the opportunity of a brief digression on populist constitutionalism’s ideological background. The term populism was coined in America at the end of the nineteenth century to designate both a political language and a form of political participation aimed at expanding and fully fulfilling the promises of democracy. As the US historian Richard Hofstadter (1955) pointed out, populism is not solely a historically contingent phenomenon corresponding to the rise of the Populist Party in 1892, but it also defines a peculiar spirit recurrent in the US political tradition, consisting of a kind of provincial resentment, a popular and democratic belligerency, a form of suspiciousness, and antiintellectualism. Populism describes the faith in grassroots organizations, in ordinary people’s wisdom and a deep distrust of elite’s values. While the phenomenon has been subject to a harsh attack during the 1950s (Hofstadter 1955, Lipset 1960), a strong pro-populist tradition has remained alive. Historians such as Gordon Wood, Harry S. Stout and Alain Heimert interpreted the Great Revival of the mid-eighteenth century as the first example of American democratic populism where “people were encouraged – even commanded – to speak out” (Stout 1986, 193-194). Margaret Canovan (1981, 233) tracks the first great flowering of populism in the United States in the Jacksonian movement, which was fueled not only by the hostility against the established ruling class of the seaboard states, but also by the conviction that the judgment of the ordinary man was more reliable than that of the highly educated. The core of the US populist ideology is however represented by the Populist Party and the mass movement it was sustained by. Founded in Omaha 446
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in 1892, the Party represented the interests of the farmers which had been seriously hindered by the growing industrialization. The rhetoric of the movement was centered around the idea that society was divided in two. The agrarian radicals of the 1890s used the “two nations” image to distinguish between “producers” and “parasites”, or simply “the robbers and the robbed”, as Sockless Jerry Simpson, the leftist congressmen from Kansas, liked to put it. “There are but two sides of the conflict that is being waged in this country today” declared a Populist manifesto. “On the one side are the allied hosts of monopolies, the money power, the great trusts and railroad corporation, who seek the enactment of laws to benefit them and impoverish the people. On the other are the farmers, laborers, merchants, and all other people who produce wealth and bear the burden of taxation […]. Between these two there is no middle ground” (Hofstadter 1955, 64). The political message of the Populists involved also institutional reforms, mainly addressed at shortening the distance between citizens and people in government. The Populist platform of 1896 called for popular election of United States Senators and of the President and for initiative and referendum, to react to the “plutocracy” which had been “enthroned upon the ruins of democracy.” According to historian Michael Kazin, Bryan, a former member of the Populist Party who run for President three times as a candidate of the Democrats, helped change U.S. society in three significant ways. First, he was a progressive reformer, who called for jailing businessmen who violated antitrust laws, supported measures to limit working hours and set minimum wages, promoted crop subsidies for farmers, championed federal protection for union organizers, and urged passage of a progressive income tax. Many reforms passed during the Roosevelt administration have already been proposed by Bryan, so that after losing the White House, Herbert Hoover snapped that New Deal was “Bryanism under new words and methods” (Kazin 2006, 268). Bryan further urged a complete ban on private donations to political campaigns arguing that “big contributions from those who are seeking Government favors are a menace to honest government” (Kazin 1999, 24; Kazin 2006, 268). Second, Bryan was a celebrity politician and a new type of campaigner who held a personal mail correspondence with citizens of his constituency. As Kazin (2007, 157) puts it, this style would have become prominent in the succeeding years: [A]s the federal government grew in size and complexity over the past century, Americans increasingly hankered for leaders who could make the enterprise of governing seem more personal and comprehensible. The electorate thus struck an implicit bargain with the political class: if we can no longer understand or control much of what What does Populism have to do with Constitutional Law?
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you do, at least give us men, and perhaps women, at the top who can comfort us and, on occasion, provide a thrill.
Finally, Bryan was a grassroots exponent of the Social Gospel. He preached that progressive politics and altruistic religion should complement one another. He routinely drew on Christian verities and quoted the King James Bible (Kazin 2007, 157). His strong evangelism led many liberal intellectuals to blame Bryan of nativism and conservatism and to view him as an intolerant scourge of learning and scientific truth. However, his Social Gospel made him believe that citizens should organize to ensure a decent life for the working-class majority. “God made all men equal”, Bryan once remarked in a plea for higher wages, “and he did not make some to crawl on hands and knees and others to ride upon their backs” (Kazin 1999, 28). Lawrence Goodwyn (1976, 1978) and Norman Pollack (1967, 1990) place American Populists at the forefront of the democratic age; while Kazin defines populism as the “language of the dispirited” (Kazin 1995) and therefore as a discourse which gives voice to individuals which are usually cut off from the public sphere. A recurrent theme in the US historiography is that although populism may lack pragmatism and moderation necessary to carry out long term policies, and although it may often contrast liberal values, secularism above all, it has the worthy potential of renovating political institutions by infusing into politics the prospect of redemption. This thesis is shared by Margaret Canovan who, to capture populism’s place in modern democracies, draws on a posthumous work of Michael Oakeshott and on its distinction between two different political styles, which he termed the “politics of faith” and “the politics of skepticism” (Canovan 1999). Within the former, politics is taken to be a matter of achieving perfection or salvation in this world, which government can bring about. The politics of faith entails mobilization and enthusiasm and rests on the confidence that human beings can be entrusted to achieve this end. Devotees of such a style are impatient of legalistic restrictions that may stand in the way of salvation (Canovan 1999, 8). The politics of skepticism by contrast is both suspicious of power and of enthusiasm and has much lower expectations of what government can achieve. For this style, politics has the sole purpose to keep order and reduce occasions of conflict by maintaining or amending the precious inheritance of rights and institutions, while the rule of law is crucial. Following Oakeshott, Canovan claims that modern democracies shall be understood as a point of intersection between redemptive and pragmatic styles of politics and that populism is likely to appear in the gap among these two poles. “Pragmatically”, Canovan argues, “democracy means institutions: institutions not just to limit power but to constitute it and make 448
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it effective. But in redemptive democracy there is a strong anti-institutional impulse: the romantic impulse to directness, spontaneity and the overcoming of alienation” (9). Pragmatism without a redemptive impulse, may degenerate into a closed institutional logic, or worse into corruption. It is exactly at this point that Canovan explains the rise of populism which tends to move “on the vacant territory”, when too great a gap opens between the haloed democracy and the grubby business of politics (11).
4. Populist constitutionalists at Yale and Harvard Populist constitutionalism started at Yale during the 1990s with the writings of Sanford Levinson, Jack Balkin and Akhil Amar and to a lesser extent of Bruce Ackerman, and soon migrate to Harvard with Richard D. Parker and Mark Tushnet. Not surprisingly, populist constitutionalism shall be read as a response of some constitutional scholars to the widespread allegations of corruption and moral decay which had affected in those years American politics and business. Levinson’s words (1999, 216) resembles those of the most active Populists of one hundred years before: it makes literally no sense to trust Congress to act as an effective agent of change […]. Who can look at the system by which national elections are financed and describe it as anything other than corrupt, increasingly threatening the basic integrity of the American political system?
The lamentation, however, does not end with a vision of despair. Levinson claims that a remedy may come from the Constitution, although not from a faithful respect of constitutional provisions, but mostly from the authentic fulfillment of the document’s spirit. The changes should come, Levinson contends, from an act of the people to pressure the Congress for a constitutional convention under Article V for the purpose of examining the federal election process and proposing amendments to rectify the problems it presents (such as campaign financing and term limits or rules on the Electoral College). The call for a convention is directed to ordinary citizens to make petitions and to mobilize vis-à-vis their state legislatures to work as faithful intermediaries between the people and the federal institutions (Levinson 2006). Populist constitutionalists’ arguments are much more articulated than the general appeals just mentioned above. Although their theories may vary significantly, some recurrent themes may allow to speak of populist constitutionalism as a unique constitutional theory. What does Populism have to do with Constitutional Law?
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5. Majoritarianism: the Constitution as the structure of politics One of the main contentions of constitutionalism, as traditionally understood, is that the Constitution is the straightjacket posed on electoral majorities for the protection of individual and minority rights. This contention is shared by what Judith Shklar would define legalist constitutionalists, a label within which, following the philosopher, both legal positivists and natural law lawyers could be included (Shklar 1964). In other words, counter-majoritarianism is the quintessential of constitutionalism. The metaphor proposed by Elster of Ulysses tying himself up to resist the temptations of the Sirens captures this state of affairs. The two assumptions of such an approach are that (1) there is a principle out there, to continue using Shklar’s terminology, that elected majority may violate; and (2) that elected majorities correspond to the majority of the population. The most common remedy advanced by legalist constitutionalists is judicial review. Judicial review may function because of Justices’ superior legal and moral expertise and/or because their alleged distance from the realm of partisan politics. Populist constitutionalists see things differently. First, they argue that Constitutions are mainly directed at checking self-dealing and partisan politicians in power. And second they contend that such a task is at best performed by the people themselves. To understand these opinions a closer look to individual theories is necessary.
5.1. Akhil Amar Akhil Amar argues that the Bill of Rights is an affirmative constitutional statement deploying local organizations such as state governments, religious groups, and the jury for the purpose of monitoring “agency costs” in the federal government, that is, checking a self-dealing, corrupt central government. This approach emphasizes national majoritarian will against a possibly corrupt central government and contrasts with the normal approach that assign mainly to the Bill of Rights the task of guarding the individual against majority will (Amar 1998). For example, with special reference to the First Amendment, the scholar argues that the Establishment Clause was designed to prevent Congress not only from establishing a religion, but also from “interfering with, or trying to dis-establish” locally established churches. This formulation makes the states direct beneficiaries of the Establishment Clause. The central claim is that the core of the US Constitution is the principle of self-government. When we look at the subsequent acts involving later generations of ‘We the People’ expanding the definitions of ‘the People’ to include blacks, to include women, to
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include people who can’t pay poll taxes, it seems to me that all of this is a continuous enactment of populism. When we look at the text, it starts with ‘We the People do ordain and establish this Constitution,’ which is a performative utterance. […]. So there is a connection between constitutionalism and populism. […]. I don’t think any account of the Constitution is really ultimately persuasive unless it comes to grips with issues of popular sovereignty and self-government over time. (Amar 1997, 1658)
To substantiate his claim, Amar resorts to history. Unlike other colleagues, Amar does not place at the roots of US constitutionalism the conventional story we find in the mostly quoted passages of the Federalist Papers, such as Madison Federalist 10, or Hamilton Federalist 78. On the contrary, Amar stresses the influence of the much more populist Anti-Federalist tradition. It was under the Anti-Federalist’s pressure, Amar argues, that the Bill of Rights was introduced (while Hamilton was expressly contrary to the proposal, Madison accepted it solely for pragmatic reasons, by claiming that the Amendments would have accelerated the ratification). Thus U.S. constitutionalism and especially the provisions added with the Bill of Rights shall be read in the light of its populist contributors. First, Amar contends, AntiFederalists stressed the importance of localism in the institutional structure. Second, they were especially concerned with preserving for ordinary citizens the ability to participate in government. The two claims were connected: ordinary, respectable members of the community, solid citizens who were trusted and admired by others, were much more likely to be able to serve in a local government or a state legislature than in Congress. Following Amar, this was the flip side of the prediction of The Federalist 10, that there would be a lot more refinement of representation at the congressional level than at the state level (Amar 1993, 113). The Anti-Federalists feared that ordinary citizens would simply become consumers, passive folk ruled by a political elite. Third, the Anti-Federalist were suspicious of professionalism and specialization of labor. They were wary of professional politicians always in office; instead, they believed in rotation of office-holding. One of Thomas Jefferson’s two biggest criticisms of the Constitution was that it lacked a provision for rotation of office-holding; simply put, that the Constitution did not impose term limitations. By contrast, the jury idea involved rotation. “In the legislative sphere, the basic Anti-Federalist idea was that you serve in the legislature for a while and then you get out of it and spend some time suffering under the laws that you had a hand in making” (Amar 1993, 114). So, for example, a professional army was very suspicious because professional soldiers and officers could promote their own self-interest, in ways that might be inconsistent with the best interests of the general community. Here is how Amar (1993, 114) connects, localism, trust in ordinary folks, anti-professionalism and the Bill of Rights: What does Populism have to do with Constitutional Law?
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[T]hus they celebrated the citizen militia-ordinary folks, again local, organized around cities and towns keeping a check on the central standing army. So the militia idea was simply, in the military context, the analog of the jury idea […]. Thus, ordinary citizens took their turn in the militia and the jury kept a check on professional politicians. Once again the states’ rights dimension of all this is evident local folks keeping check on central officials.
5.2. Richard D. Parker Richard D. Parker goes even further than Amar. In describing populist constitutionalism he expressly challenges what he claims to be the three basic ideas - three connected orthodoxies – central to conventional discourse about constitutional law (Parker 1993, 531). According to Parker (Ibidem), these three ideas are: (1) The idea that we must define constitutional democracy as opposed to populist democracy: that constitutional constraints on public power in a democracy are meant to contain or tame the exertion of popular political energy rather than to nurture, galvanize, and release it. (2) The related idea that constitutional law is “higher” law, its substance and process superior to “ordinary” law and politics not just functionally, but (somehow) in essential quality as well. (3) The consequent idea that the main mission of modem constitutional law is to stand “above the battle” so as to protect “individuals” and “minorities” against the ruling “majority.”
On the contrary, Parker urges that constitutional law should be devoted as much – and even more – to promote majority rule as to limit it. To develop his claim, Parker starts by criticizing the most common views of democracy held by constitutional theorists. No paraphrases may render justice to his sarcastic tone: [T]he most potent rationalizations for “governance” of the masses by enlightened elites are, nowadays, packaged as paeans to democracy. Against a backdrop of perfectionist premises, they insist that participation by the mass of real people in the real world of politics has value only if other conditions are met – only if reality is radically transformed in one way or another. They deplore the inadequacy (even the “corruption”) of democracy as we know it. And they conclude, regretfully of course, that the world is not yet safe for democracy […]. The most transparently naked rationalization focuses on outcomes of political processes. The political empowerment of ordinary people is good, so the argument goes, only insofar as its likely outcomes are good. Today, the argument continues, the masses tend to have “bad values” or, at the very least, a mistaken understanding of their own interests. Hence, bad outcomes. (Parker 2001, 180)
Then Parker goes on in demolishing the other two versions of democracy widely held by, what he defines, elitist constitutional theorists: 452
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[A] somewhat more subtle version of the argument focuses on the quality of political processes. The participation of the masses in politics is good, it asserts, only so long as the political process is otherwise a good one. Today, it continues, our political process is utterly spoiled-poisoned by a few who, with clever thirty second spots, play on the ignorance, shortsightedness and emotions of the many. Thus, it concludes, the political influence of the many may have to be restricted […].The assumption is that ordinary people are incompetent dupes in need of enlightened cosseting […]. The most sophisticated version of the argument focuses on preconditions of democracy. Mass political participation is good, it claims, only after some level of social and economic empowerment, enlightenment and equality has first been achieved for everyone. […]. Despite the apparent sophistication, it repeats the other versions of the argument. For it assumes that ordinary people who suffer deprivation and inequality need help from their betters before acting politically on their own. (181)
By contrast, Parker claims that in place of these pseudo-democratic rationalizations of elite rule, a movement toward a revitalization of democracy requires a different, more positive as well as more realistic, attitude toward mass participation. The scholar ties such an idea with that of an active engagement in political life. The remedies Parker proposes are both legal, political and cultural. For the objective is to enhance political participations, measures have to be tailored to reduce incumbent’s probability of reelection and to open up the way to new entrants. First, he proposes, to lower barriers to entry - from ballot qualification requirements to exclusions from debates - facing “minor” party candidates and then to promote, once a number of “minor” parties gain a foothold, run-off elections. In the run-offs, the two highest vote-getters would be moved to address issues of concern to the others while, at the same time, the principle of popular majority rule would be vindicated (Parker 2001, 186). Second, the system for drawing legislative districts needs to be transformed. Districting, Parker contends, should be taken from the hands of incumbent-friendly politicians and transferred to incumbent-unfriendly commissions. The commissions should be given one overriding instruction: draw and re-draw district lines so as to promote hotly contested elections in as many as possible. Third, Parker claims, term limits shall be provided. Further Parkers argues that the most important way of enhancing the effect of voting is to eliminate the middleman entirely and to foster forms of direct democracy. In particular, the author proposes to mending processes by which proposals for popular lawmaking are drafted and summarized, then extending the initiative and referendum to all fifty states and even experimenting (at first) with “advisory” or “instructive” initiatives and referenda at the federal level.
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5.3. Mark Tushnet Tushnet (1999) is one of the leading scholar in advancing the case of populist constitutionalism, which he defines as that constitutionalism which treats constitutional law not as a matter in the hands of lawyers or judge but as a creed held and to be developed by political institutions and common people. Tushnet makes two claims. The first is descriptive and the second normative. From a descriptive point of view Tushnet challenges hallowed American traditions of judicial review and judicial supremacy, where the Supreme Court is viewed as the bulwark of individual or minority rights vis-à-vis the government. In contrast, Tushnet offers a much more prosaic image of the Court where Justices do nothing else than participating in the political process. First of all, Tushnet joins the chorus of those political scientists who claim an overall long term alignment between policies in power and court decisions, which the author explains with the appointment process. Possible departures from such a scheme are explained either with different term limits of presidencies and Court Justices or with the peculiar relationship between the political administration in power and the Court. For example, Tushnet argues, although Roosevelt wanted Justices who would endorse the expansion of national power, he did not care about the positions his nominees would take on questions of civil rights and civil liberties (Tushnet 2010, 116). Tushnet even advances the proposal of a cyclical pattern between presidencies, which the author characterizes as dominant, resilient and reconstructive, and Supreme Court jurisprudence. In the end he contends that reconstructions – which occur after a regime had degenerated – are propelled by strong presidencies (Lincoln, Roosevelt, Reagan, Obama) much more than by strong Supreme Court. With the consequence that to rely on enlightened Justice to activate a period of reconstruction seems to be an error. Secondly, the author stresses the marginal impact of constitutional case law in the evolution of fundamental rights. Tushnet argues that even the decisions most celebrated from a countermajoritarian point of view in fact affirmed principles which had already received widespread approval in the society. Tuhnet makes also some normative claims. First, that judicial review may be not solely superfluous but pernicious as well. A populist Constitution, he maintains (1999, 9), will be more effective than a document exclusively protected by the courts. Tushnet believes, for example, that the serious problems of the communist scare of the 1950s were aggravated when Senator Joseph McCarthy’s opponents were lulled into inaction, believing that the judicial branch would step in and declare McCarthy’s actions unconstitu454
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tional. Instead of fulfilling the expectations, the Court allowed McCarthy to continue his crusade until it was ended. Tushnet points out neither the People nor their representatives felt empowered to enforce the Constitution because they mistakenly counted on the courts to do so. The other normative claim is more political. In line with other populist scholars, such as Levinson, Sabato and Parker, Tushnet focuses on the electoral process and suggests that the Constitution may be used in the political debate to challenge the incumbent dominant position and to favor new political entrants. The scholar quotes several Supreme Court’s decisions which have held that states can’t keep third parties off the ballot simply because they want to preserve the two-party system. Tushnet, furthermore, contends that there are good reasons to be suspicious of government efforts to impose candidate-selection rules on political parties, such as the issues of the closed primaries illustrates. He develops his argument by reporting a Connecticut case where the court struck down a law requiring closed primary (Tushnet 2010, 68). Thurgood Marshall, writing for the majority opinion, held that because the law was passed to avoid one party from “raiding” the other, by attracting moderate voters with open primaries, it was meant to preserve the incumbent position of the Democrat which were controlling the state legislature. The Justice explained that a political party “transiently enjoying majority power” can’t use the legislature to tell the other party how it has to conduct its own affairs (Tushnet 2010, 69).
6. The thin Constitution, extrajudicial interpretation and the narrative of aspiration A recurrent theme among populist constitutionalists is that a special regard shall be given to a core of the Constitution, usually defined as the thin Constitution. The thin Constitution, as Tushnet describes it, consists not of canonical or technical rules and standards that lawyers peculiarly know as positive law, but rather of moral principles that every American knows as incontestable (Tushnet 1999, 11). Michelman (2001, 463) attempts to summarize what the thin Constitution is not: first, the provisions of the documentary Constitution dealing with the structures and mechanics of government; second, the canonical, formulaic texts of the Bill of Rights; third, judge-made legal doctrine designed, prudentially, to implement the thin Constitution; fourth, judge-made legal doctrine reporting the Court’s views about the Constitution’s substantive intentions, such as its strong bias against viewpoint-specific restrictions of “expressive conduct” such as flagburning. On the contrary, the thin Constitutions consists of the principles of the Declaration of Independence: “that all people [are] created equal, [and] What does Populism have to do with Constitutional Law?
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that all [have] inalienable rights”; alternatively, they are the Constitution’s “fundamental guarantees of equality, freedom of expression, and liberty”. In Tushnet’s words, the thin Constitution draws from that in the Preamble which “resonate[s] with the Declaration”, that which commits the nation to the pursuit of domestic Tranquility, the common defense, and the general Welfare, all for the sake of Justice and the Blessings of Liberty. In Tushnet’s view, it is the thinness of the thin Constitution that gives Americans the opportunity to “construct an attractive narrative of American aspiration”. Similar remarks are expressed by Jack Balkin according to which the legitimacy of the Constitution depends on the citizens’ faith in the constitutional project and its future trajectory. Like Tushnet, Balkin identifies a constitutional core: the constitutional faith does not have as its object all Constitutional provisions – some of which sound very prosaic – but solely the principles expressed in the Declaration of Independence and in some other fundamental document (such as Lincoln Second Presidential Speech). And similar to Tushnet, Balkin explains that the thinness of the core principles allows the possibility of a shared and ongoing narrative of constitutional redemption (Balkin 2011).
7. Textualism, protestant constitutionalism and public opinion Populist constitutionalists do not reject textualism, although the use they do of this concept is very different than that given by traditional originalists such as Justice Scalia. Because the thin Constitution is embodied in written documents (the Preamble, the Declaration of Independence, Lincoln’s Speech, etc..), the interpretation can be rooted in the text. Levinson and Balkin argue that textualism rather than implying one right answer – usually to be given by legal experts – allows for a direct reading of the fundamental document. The authors draw an analogy with early Protestantism, where believers were given the opportunity to have a direct access to the Bible, rather than being forced to rely on the interpretations given by clergymen and the Church. Textualism and Protestantism are therefore related, so that the fundamental documents, either legal or religious, may ground protests by anyone who enters into direct contact with their text. Amar makes a similar contention, by stressing the connection between populism and textualism, not solely because a shared written text “liberates judges”, but also because it gives ordinary people, whose parents and grandparents came from all different parts of the world, a common vocabulary and grammar for argumentation. Again, populist constitutionalists make two kinds of claims, descriptive and normative. 456
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To substantiate their claim from a descriptive point of view, they refer to the theory of Robert Dahl (1957, 179, 294) and to the more recent literature which describes the Supreme Court as a legitimator of majoritarian politics rather than as a counter-majoritarian protector of civil rights and liberties (Graber 1993; Klarman 1996; Friedman 2010; Karlan 2013). The common explanation for the Court’s docility is the political appointments process. Other scholars have advanced different proposals by stressing an overall congruence between constitutional case law and popular opinion. Emphasizing the social rather than the political impact on Court’s decisions, Siegal and Post argue that the Court is directly responsive to social pressure (Post and Siegel 2004, 1037-38; 2007). The authors present a dialogic model according to which Justices may overrule obsolete precedents for the fear of public backlash or because they may be authentically convinced to change point of view by a massive pressure of public opinion and social movements. Bruce Ackerman maintains that in particular moments, which he defines as constitutional movements, the Court takes distance from political loyalties or previous ideology to please the public. This is how in the long run Court’s decisions align to public opinion (Ackerman 1991). The normative claims that populist constitutionalists make are strictly related to their empirical assumptions. Populism, Tushnet argues, “means the enactment into public policy of the people’s views, whatever they happen to be” (Tushnet 2000, 553). The claim is grounded on four ideas. First, the Constitution is a semi-finished work which needs to be actively fulfilled. It sets ambitious goals, such as individual liberty, political and social equality, which require long term political plans as well as a shared cultural commitment. Second, judicial review is not the best means to reach these constitutional goals. Tushnet contends that the judiciary power is not at all equipped to address most social issues implied in discussion on constitutional rights. Third, contrary to liberal theorists a là Rawls, the most promising outcome of public decisions are not the result of deliberative mechanisms where informed citizens or representatives make use of a public reason, but most likely the product of individuals strongly involved in the cases at issue. So, for example, Tushnet disagrees with those liberals which pretend to decide issues concerning indicted rights and police behavior regardless of the opinion of the people living in the interested areas, such as urban ghettos. To speak in Razian terms, there is an epistemic reason to give people affected by the decision a presumption of good judgment. The fourth idea exposes the conclusion of the Condorcet Jury Theorem (“CJT”) which holds that, where members of some group are asked to resolve some question, and each member is at least more than 50% likely to be right, as the size of the group expands, the likelihood that a majority of the group will be right approaches 100%. The CJT helps to explain the “wisdom of crowds” (Surowiecki What does Populism have to do with Constitutional Law?
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2005), that is, the frequent and apparently magical correctness of large collections of people in making judgments of fact. The four ideas explain the core normative argument of populist constitutionalism which says that the more government institutions reflect popular opinion, the more constitutional rights are likely to be implemented. Populist constitutionalists are not however naïve and propose a set of remedies where elected bodies or society at large forget constitutional values. They know that to remain faithful to the thin Constitution incentives shall be provided (especially for representatives) and they are aware that the people may recurrently abandon the constitutional path. However, they remain skeptical of the capability of judicial review to check the majority in power. On this issue, their theories vary. While the most radicals propose to abandon judicial review whatsoever (Tushnet 1999), others suggest that the Supreme Court may fulfill populist’s wishes provided that it takes into account in its decisions the prospect of a public outrage. Contrary to the conventional wisdom that judicial anticipation of public outrage and its effects is incompatible with judicial independence which implies the possibility of unpopular decisions, populist constitutionalists urge for some form of respect of popular pressure mainly on the basis of epistemic reasons.
8. Ordinary citizens Jeffrey Bell contrasts populism with elitism. Populism, Bell claims, is optimism about people’s ability to make decisions about their lives. Elitism is optimism about decision-making ability of one or more elites, acting on behalf of other people. Populism implies pessimism about an elite’s ability to make decisions for the people affected. Elitism implies pessimism about the people’s ability to make decisions affecting themselves (Bell 1992). Parker (1993, 553) defines the contraposition between populist and antipopulist constitutionalism in terms of sensibility towards the energy of ordinary people. The scholar contends that elitist constitutionalism rests on peculiar assumptions relating both to epistemic and moral capabilities of common people “where ordinary energy is imagined as springing from, as well as activating, states of mind and temperament presumed to be defective: emotional as opposed to reasonable, ignorant as opposed to well informed, […] simple minded as opposed to complex.” The defective states of mind are associated with a tendency to irresponsibility which Parker believes are based on the following alleged juxtapositions short-sighted as opposed to far sighted, narrow-minded as opposed to broad-minded; self-centered as opposed to public-spirited; […]; arbitrary as opposed to principled
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[…]; impulsive as opposed to deliberate; peremptory as opposed to dialogic; closeminded as opposed to open-minded; […] vulnerable to influence and manipulation or conformist as opposed to independent; suggestible as opposed to critical; resentful as opposed to magnanimous; […] rude as opposed to considerate; […]; vulgar as opposed to civilized; intoxicated as opposed to sober; abusive as opposed to respectful; moralistic as opposed to tolerant; prejudiced as opposed to fair; tribal as opposed to cosmopolitan; mob-like as opposed to statesmen like (554).
Parker makes clear that the populist sensibility does not however amount to a “romance of the ordinary”, flipping upside-down the anti-populist identification of who is refined and who is vulgar and valuing ordinariness, emotions, or self-centrism over rationalism. Rather, Parker maintains, that at the heart of the populist sensibility is a refusal of passivity and /or insulation from the political realm, because it involves cutting oneself off from possibilities of political assertion and engagement. […] What is worse, it can if disseminated widely and solidified in institutions affecting everyday life erode self-confidence among ordinary people and metastasize political passivity. And, worse yet, it may embolden elites to claim transcendence, securing an elevated position from which to try to contain, control, or manipulate ordinary political energy (557).
While Parker description recalls Hofstadter’s comments on the belligerent and anti-intellectual roots of US democratic spirit, Balkin offers a more sophisticated account of populist attitude towards ordinary people: [A]s its name implies, populism sees itself primarily devoted to furthering and defending the interests and attitudes of ordinary citizens. It has traditionally been distrustful of large and powerful organizations, whether public or private. It views massive government bureaucracy and corporate privilege with equal suspicion. Moreover, concentrations of power and privilege held too long by the same persons lead inevitably to moral and political corruption. This view has two consequences: The first is a preference for regular rotations of positions of authority and power. The second is a preference for popular participation in economic and political structures that affect the lives of ordinary citizens. [...] [P]opulism has historically been suspicious of elites – whether academic, social, or political – and their claims to expertise and superior judgment. (1995, 1945)
Balkin goes on in describing the ambivalent position of populism towards political participation: [P]eople want to be part of governance, but what they want from government is respect for their ways of living. People wish to participate in government, but they do not wish to be manipulated and shaped by some master plan for effective governance. They want the opportunity to have a say in what affects them, but they also wish to be allowed to live their lives, raise their children, and pursue their own vision What does Populism have to do with Constitutional Law?
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of happiness – whether in families, friendships, or communities – free from the hand of bureaucratic planning or corporate overreaching. Populism thus should not be confused either with some atomistic version of individualism or with currently trendy communitarian alternatives. Populism is no more committed to individualism in its private aspects than it is committed to communitarianism in its public ones (1946).
Then Balkin contrasts populism with progressivism – approximately exemplified by liberal constitutionalism: [C]entral to progressivism is a faith that educated and civilized individuals can, through the use of reason, determine what is best for society as a whole. Persuasion, discussion, and rational dialogue can lead individuals of different views to see what is in the public interest. Government and public participation must therefore be structured so as to produce rational deliberation and consensus about important public policy issues. Popular culture and popular will have a role to play in this process, but only after sufficient education and only after their more passionate elements have been diverted and diffused. Popular anger and uneducated public sentiments are more likely to lead to hasty and irrational judgments (1947).
Balkin explains that like populists, progressives believe that governments must be freed of corrupting influences. But these corrupting influences are described quite differently: They include narrowness of vision, ignorance, and parochial self-interest. Progressivism is less concerned than populism about centralization and concentration of power. Progressivism also has a significantly different attitude towards expertise: far from being something to be distrusted, it is something to be particularly prized. Expertise is necessary to arrive at sound policy judgments; conversely, its lack often leads ordinary citizens to misunderstand the issues and make choices that are not in the public interest. Because of its respect for expertise, progressivism has always been quite comfortable with elite discourse, and progressivism is the natural home for reformers who are members of political, academic, and social elites (Ibidem). Progressivism and populism differ also for their attitude toward popular culture. For populists, popular culture is neither a debilitated version of democratic culture nor a mere diversion from the sober processes of deliberation imagined by progressivism. Moreover, populism accepts, as progressivism does not, that popular culture – which is also democratic culture – is by nature unkempt and unruly, occasionally raucous and even vulgar. It is by turns both eloquent and mawkish, noble and embarrassing, wise and foolish, resistant to blandishments and gullible in the extreme. It is imperfect in precisely the same sense that democracy itself is imperfect (1948).
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9. A look from Europe In continental Europe populism has a negative reputation, mostly because here bad populist experiences – to use Kazin’s words – have outnumbered good ones. Three common views are widely held. The first meaning is dominant in the public debate, where populism refers to the politics of Stammtisch (the pub), and is therefore identified with a highly emotional and simplistic discourse that is directed at the ‘gut feelings’ of the people (Mudde 2007). The second meaning is typical of political scientists who identify populism with an ideology characterized by anti-modernism and a Manichean look on society. The connection between populist ideology and anti-modernism has had a recent theoretical representative in Christopher Lash (1995). Nadia Urbinati explains populists’ aversion towards modernity with “the[ir] belief in an alleged purity of origins against an alleged artificial complexity of civilization” (Urbinati 1998, 110; 2012, 12-13). While the distinction between the honest people versus the corrupt elite is a recurring theme across the literature on populism (Canovan 1981, 1999, 2002; Mény and Surel 2002; Mudde 2004; Laclau 2008; Panizza 2005), scholars do not agree on the kind of antagonism which characterizes populists’ Manichaean view. Contrary to the US literature which stresses the contraposition between the public versus the plutocrats, the toiling multitude versus the money power, the people versus the interests, the common man versus the sophisticated and false elite, the European literature predominantly emphasizes the connection between populism and some thick notion of the people, typically defined with reference to ethnicity, race, or an idealized heartland (Taggart, 2000; Inoescu and Gellner 1969). More recently, the fast growing literature on European neo-populism signals the nativist, chauvinist and tribal tendencies of those political parties or movements which have entered the political scene in many European countries in the past twenty years and have launched fierce attacks against immigrants, the European Union and traditional national parties, among other things (Betz and Immerfall 1998; Albertazzi and McDonnell 2008). Under a third meaning populism is a form of antagonism to representative politics and therefore to politics itself (Maier 2002; Mastropaolo 2012, 2013). Taggart (2000) maintains that populism builds on a fundamental ambivalence towards politics in general, eschewing established forms of political parties and opting instead for the new and spectacular and celebrating its difference from the established forms of politics. In a similar vein, Pombeni (2010) claims that the basic fallacy of the populist thought resides on the reification of the people, which is based on the false assumption that popular What does Populism have to do with Constitutional Law?
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sovereignty rests on an entity that can be conceived independently of some representative mechanisms. Scholars which capture in the antagonism towards representative politics the main core of populism tend to identify the pitfalls of the phenomenon through three distinct kinds of arguments. The first has a moral content and attaches to populism the same moral failures of extreme majoritarianism which constitutionalism is meant to correct (Ferrajoli 2001, 2003b, 2007a e 2007b; Urbinati 1998; Pinelli 2013a, 2013b). The second has a pragmatic content and signals the self-defeating strategy of populist discourse doomed to fail for its refusal of compromise and consociationalism (Taggart 2000; cfr. Lipjiart 1984). The third has a realist basis, and attacks populism for the wrong anthropological assumptions upon which it is based. In this vein, élite theorists such as Schumpeter or Lipset have praised apathy as the virtue of the moderns which allow political experts to act effectively without disturbance, where ordinary people can enjoy leisure and private life. While all three criticisms at their core contrast populism’s reliance on common people with a more skeptical look at human beings, it is the first one which deals with constitutionalism. Ferrajoli contrasts populism with constitutionalism. Populism, Ferrajoli contends, is grounded on two fallacies: the first consists in the idea that the will of the majority of the representatives corresponds to or reflects an alleged unitary will of the majority of the represented; the second consists in the idea that the will of the individual representative could be identified or reflect the alleged unitary will of his voters (Ferrajoli 2003a, 57-62). Ferrajoli contrasts the above fallacies by making explicit reference to Hans Kelsen, and claiming that the will of the majority is solely a legal fiction. To think otherwise, the scholar adds, would mean to substantiate a fictitious concept into reality and to endorse an organic interpretation of the people which has its roots in Rousseau and Schmitt. It is at this point that Ferrajoli introduces his main argument: because of its (probably unconscious) appeal to Rousseau and to its idea of a general will of the people, populism shall be contrasted to liberal constitutional theory whereby an unified will of the population does not exist and the interplay between majority and minority parties within the representative body is regulated by the constitution. In other words, populism contradicts the two main features of constitutional theory: first, by giving substance to a concept, i.e. the people, which is nothing but a constitutional construction; second, by suppressing the checks within which the action of the majority in power shall be contained. According to this view, not only is populism able to pose a threat to democracy, but it is necessarily doomed to follow a paradoxical trajectory. While moving from an attack directed against established political parties it ends up sustaining a self-celebrating attitude of the political class (61). 462
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Following a similar reasoning, Urbinati (1998, 116) points out that Carl Schmitt’s corrosive analysis of parliamentary democracy made through a critique of the Weimer republic resembles populist’s attack on representative institutions. The scholar further contends that the combined action of traditional political parties and academic intellectuals made possible that the téchné politiké, i.e. the art of politics, was not expropriated by the few. The rise of populism shall be explained with the crisis of traditional parties and the contextual confinement of intellectuals into university campuses (115). In a similar vein, Cesare Pinelli contrasts the constitutional culture and the populist culture. While the first rests on the idea that political discourse shall be carried out through discussion and rational deliberation in compliance with constitutional rules and implies therefore a certain degree of education at least on the part of representatives, the latter proposes a simplistic reflection of individual preferences into the will of the leader. Unlike contemporary analyses of the phenomenon which stress the nationalist and tribal tendencies of populist parties, Pinelli (2013) signals the emphasis on mediocrity, ordinariness of contemporary populism which the scholar defines as “a populism of everyday life, which rejects any moral, intellectual, esthetic superiority and which corresponds to the passage from the mass culture of the 60’s, full of heroes acting in the public sphere, to the domestic and minimalist culture of talk show.”
10. Populist constitutional law, critical theory and post-modernism Compared to traditional constitutionalism, populist constitutional law lacks of analytical consistency and probably realism. We know that populism may make strange bedfellows and that may lead to illiberal or malfunctioning democracies. However, discarding too quickly its lessons may equally be a mistake. In the preceding pages we have learned about a legal and political tradition where populism receives a good degree of appreciation (just few years ago, during Obama’s second campaign, from the pages of Dissent Magazine, Kazin exhorted the President to be more populist), for it is associated with a belligerent or protestant attitude towards authority in general, with social and political resentment, with indignation and anti-intellectualism, and with some faith in grassroots organizations. Clearly, these characteristics shall not be the predominant features upon which to build a political system. However, this is the US scholars’ main contention, they may recurrently help to regenerate a declining regime. To follow Hofstadter, populist parties are like bees, for they sting and die, while Kazin attributes to populism the poWhat does Populism have to do with Constitutional Law?
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tential of renovating traditional political parties. Levinson and Balkin are more extreme, by arguing that “from a populist perspective, an alternation between periods of relative inattention and episodes of popular uprising is not a pathological but a normal feature of democratic life. It symbolizes the people’s simultaneous recognition that they ultimately rule and that their government is usually in the hands of people who systematically forget this fact. The model of populist democracy is not prolonged dialogue but periodic revolution” (Balkin 1995; Balkin and Levinson 2001; Ackerman 1991). Even if we doubt of populist constitutionalism’s political proposals, we may still retain some lessons regarding the epistemology which it exposes. In the U.S., the importance of populism rests not only on its distinctive conception of democracy, but on its lessons about the social construction of judgments – the sort of critique often associated with postmodern philosophy. Although it may seem strange to connect populism and postmodernism, that most arcane of academic perspectives, this incongruity is more apparent than real (Balkin 1995). Populist constitutionalism shall be read as a critical theory of the Constitution. Just as critical race theory and feminism ask whites and males to recognize and surrender their privileges as whites and males, so too populism asks elites to recognize and surrender their privileges as members of these distinctive subcultures. In particular, populism requires professors of constitutional law and legal theorists in general to forgo their privileges as academics and above all to question their pre-commitments (Viola and Zaccaria 1993). Traditional constitutionalism, especially the European version, is built upon the horrific memories of totalitarianism and mass hysteria. The post-war European Constitutions, the German and the Italian above all, rest on the assumptions that a procedural concept of democracy is incompatible with liberalism and human rights. The more hidden (and therefore rooted) precommitment, however, does not relate to the institutional setting, but on a vision of the common man. Ordinary people shall not be trusted for they exemplify uncontrolled passions, short-sighted desires, apathy, and self-centrism (Shklar 1998). The mass culture to which legal theorists and constitutional scholars often refer to is depicted in derogatory terms, associated with talk show, political passivity, vulgarity and disengagement. Are these assumptions which have led most European theorists to distrust not solely populism and its excess but democracy as well, while placing hopes upon unresponsive and unaccountable institutions such as courts, administrative agencies or supra-national entities (Guarnieri 2002, Stone Sweet 2000). Where US sociologists and political scientists signal an overall correspondence between the Supreme Court case law and public opinion, most of European constitutional law text books depicts courts as the strongest bulwark of individual rights. 464
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A romantic idea of ordinary men is equally dangerous, for it leads to underestimate the dark side of any human being, both intellectual and illiterate, and worse may result into a uniform or organic concept of the people where individual differences and pluralism are suppressed (Barberis 2006, 61). However, the main goal of populist constitutional scholars is not to get rid of constitutional institutions to simply rely on the spontaneous benevolence of ordinary citizens. They rather pressure for a richer and fuller understanding of the self and its place in the larger political community. All critical theory seeks enlightenment, and enlightenment, like charity, begins at home, with an examination of the self and its precommitments (Viola 2006, Balkin 1995). Through this process populist critique may lead legal theorists to question whether the anthropological assumptions of traditional constitutionalism have not become far too Hobbesian, and whether they rest on a too radical dichotomy between an emotional/ordinary versus a rational/well informed self. Although in the end discarded, a populist critique may foster a deeper reflection on the most ambitious goals of constitutionalism and on the appropriate ends to achieve them and more importantly may lead to a better understanding of each citizen’s commitment to democracy and selfrule. Lucia Corso Università degli Studi di Enna “Kore” Facoltà di Scienze Economiche e Giuridiche Cittadella Universitaria 94100 Enna (EN)
[email protected]
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–– 1998. “Liberalism of Fear”, in Political Thoughts and Political Thinkers, edited by S. Hoffman, 3-20. Chicago: University of Chicago Press. Stone Sweet, Alec 2000. Governing with Judges: Constitutional Politics in Europe. New York: Oxford University Press. Stout, Harry S. 1986. The New England Soul. Preaching and Religious Culture in Colonial New England. New York-Oxford: Oxford University Press. Sunstein, Cass. 2009. A Constitution of Many Minds. Why the Founding Document Doesn’t Mean What it Meant Before. Princeton: Princeton University Press. Surowiecki James. 2005. The Wisdom of the Crowds. New York: Anchor Books. Taggart, Paul. 2000. Populism. Buckingham PA: Open University Press. –– 2002. “Populism and the pathology of representative Politics”. In Democracies and the Populist Challenge, edited by Y. Meny and Y. Surel, 62-80. New York: Palgrave. Tushnet, Mark 1985. “Anti-Formalism in Recent Constitutional Theory.” Michigan Law Review 83: 1502-1544. –– 1999. Taking the Constitution Away From The Court. Princeton, NJ.: Princeton University Press. –– 2000. “Politics, National Identity, and the Thin Constitution.” University Richmond Law Review 34: 545-553. –– 2010. Why the Constitution Matters. New Haven, CT: Yale University Press. –– 2011. “Abolishing Judicial Review.” Constitutional Commentary 27: 581-589. Urbinati, Nadia. 1998. “Democracy and Populism.” Constellations 5: 110-124. –– 2012. “Dalla democrazia dei partiti al plebiscite audience.” Parolechiave 47: 7-21. Viola, Francesco e Giuseppe Zaccaria. Diritto ed Interpretazione. Lineamenti di teoria ermeneutica del diritto. Roma: Laterza, 1999. –– 2006. “Ermeneutica filosofica, pluralismo e diritto.” Etica & Politica 1:1-20. Waldron, Jeremy. 2006 “The Core of the Case Against Judicial Review.” Yale Law Journal 155: 1346-1406.
What does Populism have to do with Constitutional Law?
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