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Populism in a Constitutional Key: Constituent Power, Popular Sovereignty and Constitutional Identity

Published online by Cambridge University Press:  11 April 2016

Luigi Corrias
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Abstract

Populism – Constitutional Theory – Paradox of Constituent Power – Popular Sovereignty – Representation – Constitutional Identity – Democracy

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Articles
Information
European Constitutional Law Review , Volume 12 , Issue 1 , May 2016 , pp. 6 - 26
Copyright
Copyright © The Authors 2016 

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Footnotes

*

Assistant Professor of Philosophy of Law, VU University Amsterdam, The Netherlands. An earlier version of this article was presented at a seminar at the RIPPLE Research Group in Political Philosophy of the University of Leuven (KU Leuven). I would like to thank all participants for their comments and especially Stefan Rummens for the invitation. Furthermore, I am grateful to my colleagues Lyana Francot and Bertjan Wolthuis for their insightful comments. Lastly, I would like to thank the three anonymous reviewers of this journal for their careful reading and invaluable remarks. All mistakes remain my responsibility.

References

1 Mudde, C., Are Populists Friends or Foes of Constitutionalism?, The Social and Political Foundations of Constitutions Policy Brief, The Foundation for Law, Justice and Society, <www.fljs.org/sites/www.fljs.org/files/publications/Mudde_0.pdf>>Google Scholar, visited 9 February 2016.

2 See for instance: Betz, H.-G., Radical Right-Wing Populism in Western Europe (Palgrave Macmillan 1994)CrossRefGoogle Scholar; Mudde, C., Populist Radical Right Parties in Europe (Cambridge University Press 2007)CrossRefGoogle Scholar; Mudde, C. and Kaltwasser, C. R. (eds.), Populism in Europe and the Americas: Threat Or Corrective for Democracy? (Cambridge University Press 2012)CrossRefGoogle Scholar.

3 Examples include: Urbinati, N., ‘Democracy and Populism’, 5 Constellations (1998) p. 110CrossRefGoogle Scholar; Canovan, M., ‘Trust the People! Populism and the Two Faces of Democracy’, 47 Political Studies (1999) p. 2CrossRefGoogle Scholar; Laclau, E., On Populist Reason (Verso 2005)Google Scholar; Panizza, F. (ed.), Populism and the Mirror of Democracy (Verso 2005)Google Scholar; Žižek, S., ‘Against the Populist Temptation’ 32 Critical Inquiry (2006) p. 551CrossRefGoogle Scholar; Abts, K. and Rummens, S., ‘Populism versus Democracy’, 55 Political Studies (2007), p. 405CrossRefGoogle Scholar.

4 For two recent articles on populism from a constitutional point of view, see Pinelli, C., ‘The Populist Challenge to Constitutional Democracy’, 7 EuConst (2011) p. 5Google Scholar and Ballin, E. Hirsch, ‘Henk, Ingrid en de rechtsstaat’ [Henk, Ingrid and the Rechtsstaat], in J. Thomassen et al., Populisme: Verrijking of bedreiging van de democratie? [Populism: Enrichment of or Threat to Democracy?] (Koninklijke Nederlandse Akademie van Wetenschappen 2011) p. 13Google Scholar. Note that both ‘Henk’ and ‘Ingrid’ are typical Dutch names, which the Dutch politician Geert Wilders uses to refer to ‘the common people’. A tradition to which I am not referring is that of so-called popular constitutionalism, see e.g. Kramer, L. D., The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press 2004)Google Scholar.

5 Pinelli, supra n. 4, p. 6.

6 Mudde, supra n. 1, p. 4.

7 This is also the aim of Hirsch Ballin, supra n. 4.

8 Canovan, supra n. 3, p. 3.

9 Mudde, supra n. 1, p. 2.

10 Mény, Y. and Surel, Y., ‘The Constitutive Ambiguity of Populism’, in Y. Meny and Y. Surel (eds.), Democracies and the Populist Challenge (Palgrave 2002) p. 1CrossRefGoogle Scholar at p. 6.

11 For a conceptual and historical introduction to the notion see Kalyvas, A., ‘Popular Sovereignty, Democracy, and the Constituent Power’, 12 Constellations (2005) p. 223CrossRefGoogle Scholar and Loughlin, M., ‘The concept of constituent power’, 12 European Journal of Political Theory (2013) p. 218Google Scholar.

12 Although he uses the (related) notion of popular sovereignty instead of constituent power, this view comes clearly to the fore in a speech of Bruno Mégret of 1999 (then delegate-general of the Front National): ‘Of the people, by the people, for the people; in France, the people are sovereign. It is from them that power proceeds, they decide their destiny, and it is for them that our rulers act. That is at any rate the principle of sovereignty in our nation, that is the deep meaning of the Republican institution, those are the foundations of democracy in France. Far from being a mere constitutional mechanism defined by holding elections, it is, over and above this legal implementation, the well-nigh sacred expression of the legitimacy that comes from the people’. See Surel, Y., ‘Populism in the French Party System’, in Y. Meny and Y. Surel (eds.), Democracies and the Populist Challenge (Palgrave 2002) p. 139CrossRefGoogle Scholar at p. 147.

13 Mudde, supra n. 1, p. 4.

14 See Eijsbouts, W. T., ‘Wir Sind das Volk: Notes About the Notion of “The People” as Occasioned by the Lissabon-Urteil’, 6 EuConst (2010) p. 199Google Scholar at p. 214-215: ‘Populism harkens to the original people, unfettered and unspoilt by the institutions, more direct and more real. It is an attempt directly to mobilise the powers, the authority and the properties of the original people inside the electoral situation. (…) In form, populism will seek the more immediate forms of expression of popular emotions through direct democracy, notably referendum, including the strong leader who will implement the people’s will’.

15 Most recently in the debate in the Dutch Parliament after the Charlie Hebdo terrorist attacks, see ‘De clash tussen Wilders en Samsom’ [The Clash between Wilders and Samson] De Volkskrant, 15 January 2015, <www.volkskrant.nl/dossier-aanslag-op-charlie-hebdo/de-clash-tussen-wilders-en-samsom~a3830319>, visited 9 February 2016.

16 For an overview of the situation in Hungary, see the work of Scheppele, K. L., ‘Hungary and the End of Politics. How Victor Orbán launched a constitutional coup and created a one-party state’, The Nation, 26 May 2014, <www.thenation.com/article/179710/hungary-and-end-politics>>Google Scholar, visited 9 February 2016. More specifically on the role of the Constitutional Court, see Lembcke, O. W. and Boulanger, C., ‘Between Revolution and Constitution: The Role(s) of the Hungarian Constitutional Court’, in G. A. Tóth (ed.), Constitution for a Disunited Nation: On Hungary’s 2011 Fundamental Law (Central European University Press 2012) p. 269Google Scholar.

17 See in this regard Tarchi, M., ‘Populism Italian Style’ in Y. Meny and Y. Surel (eds.), Democracies and the Populist Challenge (Palgrave 2002) p. 120CrossRefGoogle Scholar at p. 122 where this is exemplified by the Italian movement of Guglielmo Giannini, ‘Fronte dell’Uomo Qualunque’ (The Common Man’s Front, UQ): ‘“Qualunquismo” presented itself as the voice of ordinary people, those excluded from the division of power, fed up with greedy and corrupt politicians, indifferent to ideologies they saw as a mere cover for elite ambitions for domination, sceptical of any programme and mistrustful of electoral promises they expected to be systematically broken by those elected. Declaring its aversion to both fascism and anti-fascism, to the monarchist, clerical or conservative Right and to the Republican, Socialist or Communist Left, the UQ focused on the unbridgeable gap between the people on the one hand – united in their desire to be “left in peace”, and to get on with life in the wake of the bloody passions that had for years divided the peninsula – and the professional politicians on the other’.

18 Wherever in this article I am using the notion of the people as a political unity, I will refer to it in the singular.

19 Canovan, M., ‘Taking Politics to the People: Populism as the Ideology of Democracy’, in Y. Meny and Y. Surel (eds.), Democracies and the Populist Challenge (Palgrave 2002) p. 25CrossRefGoogle Scholar at p. 34: ‘As sovereign and rightful rulers, “the people” must be understood as an entity, a corporate body with a continuous existence over time, capable of having common interests and a common will. Furthermore that body must be capable of action, able to express its will and to take decisions’.

20 Taggert, P., Populism (Open University Press 2000) p. 86Google Scholar: ‘At heart, new populism is an attack on the nature of political parties, and therefore on the form that representative politics has come to take in the countries in which it arises. In both the form that they take and in the positions they adopt, new populists embody a radical critique of existing parties’.

21 See the Populist Party Platform of 1892, July 4, 1892, Preamble: ‘The conditions which surround us best justify our co-operation; we meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot-box, the Legislatures, the Congress, and touches even the ermine of the bench. The people are demoralized; most of the States have been compelled to isolate the voters at the polling places to prevent universal intimidation and bribery. The newspapers are largely subsidized or muzzled, public opinion silenced, business prostrated, homes covered with mortgages, labor impoverished, and the land concentrating in the hands of capitalists. The urban workmen are denied the right to organize for self-protection; imported pauperized labor beats down their wages, a hireling standing army, unrecognized by our laws, is established to shoot them down, and they are rapidly degenerating into European conditions. The fruits of the toil of millions are boldly stolen to build up colossal fortunes for a few, unprecedented in the history of mankind; and the possessors of these, in turn despise the Republic and endanger liberty. From the same prolific womb of governmental injustice we breed the two great classes – tramps and millionaires’. Quoted in Taggert, supra n. 20, p. 28.

22 Of course, not all parties advocating more referenda are immediately populist. Yet, as Canovan argues, the argument in favour of the use of referenda may indeed be conceived as part of the populist ideology: ‘But in order to grasp the potential political significance of referenda we need to take account of the way they may appear when seen through the spectacles of the democratic ideology analysed above. (…)Take, for example, the promised British referendum on whether or not to adopt the Euro in place of sterling. (…) [T]he use of a referendum to resolve such a major political issue seems certain to endorse and emphasise the populist ideology of democracy’. See Canovan, supra n. 19, p. 36. See also Taggert, P., ‘Populism and the Pathology of Representative Politics’ in Y. Meny and Y. Surel (eds.), Democracies and the Populist Challenge (Palgrave 2002), p. 62CrossRefGoogle Scholar at p. 72: ‘We can view constitutional politics as setting the rules of the game in which representative politics take place. The ambivalence of populism to representative politics can be perceived not only in what populists advocate, but in the way that they mobilise. (…) In the mechanisms advocated by populists we often find a predilection for referenda and the tools of direct democracy such as citizen initiatives and recall devices’.

23 See for example: Margaronis, M., ‘Fear and loathing in Athens: the rise of Golden Dawn and the far right’, The Guardian, 26 October 2012 <www.theguardian.com/world/2012/oct/26/golden-dawn-greece-far-right>>Google Scholar, visited 9 February 2016.

24 For an analysis of the heated parliamentary debates on this issue, see Fowler, B., ‘Nation, State, Europe and national revival in Hungarian party politics: the case of the millennial commemorations’, 56 Europe-Asia Studies (2004) p. 57CrossRefGoogle Scholar.

25 See Tarchi, supra n. 17, p. 126: ‘When the Lega did enter the political arena it did so because it had been pushed to enter by the desire to assert those values believed to be rooted in the collective historical memory, but which were neglected or even ridiculed by the political elite. The message expressed in the first Lega manifestos and documents was summary, basic and aimed at the man in the street; it appealed to local identity as the basis for reconstructing homogeneous, solid, secure communities free of class discrimination, and with clear, undisputed acknowledgement of a number of interests (and values) common to all their members’.

26 Betz, supra n. 2, p. 130. The quotation is taken from the Front’s 1988 election pamphlet ‘Pourquoi feraient-ils demain ce qu’ils n’ont pas su faire hier?’.

27 Betz, supra n. 2, p. 137: ‘Like the Front National, the Vlaams Blok charged that the threat to national identity was twofold. One stemmed from the growing number of legal and illegal immigrants, the other from the precipitous drop in the birthrate of the Flemish population. Its main slogan “Eigen volk eerst” (The own people first) and the title of the party’s 1991 electoral program “Out of Self-Defense” summed up how the party sought to counter these threat. Self-defense meant above all a quick solution to the question of immigration’.

28 See Müller, W. C., ‘Evil or the “Engine of Democracy”? Populism and Party Competition in Austria’, in in Y. Meny and Y. Surel (eds.), Democracies and the Populist Challenge (Palgrave 2002), p. 155CrossRefGoogle Scholar at p. 166: ‘The FPÖ stresses the potential conflict between different cultures and claims that too many foreigners constitute a danger to Austrian culture. In the most drastic formulation, Andreas Mölzer, currently Mr Haider’s cultural adviser, declared that Austria runs the risk of “Umvolkung” – that is, the impairment of its ethnic stock, and the FPÖ claims that Austria has gone too far in this direction and has called for a “Recht auf Heimat” for Austrian nationals. The party links the foreigner question to issues such as the abuse of welfare provisions and crime’.

29 Arendt, H., On Revolution (Penguin 1963)Google Scholar.

30 Möllers, C., ‘Pouvoir Constituant-Constitution-Constitutionalisation’, in A. von Bogdandy and J. Bast, Principles of European Constitutional Law (Hart, CH Beck, Nomos 2009) p. 169Google Scholar at p. 170 and further.

31 Möllers, supra n. 30, p. 171: ‘[C]onstitution becomes an exclusive concept: certain forms of order are now no longer labelled as faulty or wrong constitutions; rather, their claim to be constitutions at all is denied.’

32 Möllers, supra n. 30, p. 172.

33 Sieyès, E. J., ‘What is the Third Estate?’ in M. Sonenscher (ed.), Sieyès: Political Writings (Hackett 2003) p. 92Google Scholar at p. 137.

34 Carl Schmitt famously speaks of the nation’s ‘formless formative capacity’, see Schmitt, C., Constitutional Theory (Duke University Press 2008) p. 129CrossRefGoogle Scholar.

35 Sieyès, supra n. 33, p. 136.

36 Möllers, supra n. 30, p. 173.

37 See for instance Elster, J., ‘Introduction’ in J. Elster and R. Slagstad, Constitutionalism and Democracy (Cambridge University Press 1988) p. 1CrossRefGoogle Scholar at p. 2: ‘Constitutionalism refers to limits on majority decisions; more specifically, to limits that are in some sense self-imposed’. Or, more recently: Hasebe, Y. and Pinelli, C., ‘Constitutions’ in M. Tushnet et al., Routledge Handbook of Constitutional Law (Routledge 2013) p. 9Google Scholar at p. 12: ‘Broadly defined, “constitutionalism” is the practice and method whereby limits on governmental powers are established and maintained. Constitutionalism promotes the rule of law over the rule of men’.

38 Möllers, supra n. 30, p. 174

39 Möllers, supra n. 30, p. 175.

40 Möllers, supra n. 30, p. 177.

41 For more on this dualist theory, see Corrias, L., The Passivity of Law: Competence and Constitution in the European Court of Justice (Springer 2011)CrossRefGoogle Scholar, especially Chapter 2.

42 Christodoulidis, E., ‘The Aporia of Sovereignty: On the Representation of the People in Constitutional Discourse’, 12 The King’s College Law Journal (2001), p. 111Google Scholar.

43 Christodoulidis, supra n. 42, p. 115.

44 Lindahl, H., ‘Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood’, in M. Loughlin and N. Walker (eds.), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press 2008), p. 9CrossRefGoogle Scholar at p. 18

45 Lindahl, supra n. 44, p. 18.

46 Lindahl, supra n. 44, p. 19: ‘if the activity of constituent power discloses an irreducible passivity in political unity, a no less irreducible passivity is embedded in constituent power’s activity. This insofar as this activity only constitutes a polity if taken up again and carried forward by further acts. Thus, an act of constitution-making can only be viewed retroactively – and provisionally – as an act by the collective’.

47 For revolution, see Corrias, L., ‘Revolution, Authority and the Institution of Legal Order: Phenomenological Reflections’, 100 Archiv für Rechts- und Sozialphilosophie p. 295Google Scholar.

48 Arendt, supra n. 29, p. 202.

49 Derrida, J., ‘Declarations of Independence’, 15 New Political Science (1986) p. 7CrossRefGoogle Scholar at p. 10: ‘The “we” of the declaration speaks “in the name of the people.” But this people does not exist. They do not exist as an entity, it does not exist, before this declaration, not as such. If it gives birth to itself, as free and independent subject, as possible signer, this can hold only in the act of signature. The signature invents the signer. This signer can only authorize him- or herself to sign once he or she has come to the end [parvenu au vout], if one can say this, of his or her own signature, in a sort of fabulous retroactivity’.

50 In this respect, see also Müller, J. W., ‘“The People Must Be Extracted from Within the People”: Reflections on Populism’, 21 Constellations (2014) p. 483CrossRefGoogle Scholar at p. 486: ‘populists do not have to be against the principle of representation. In fact, they can positively endorse it, as long as the right representatives represent the right people who are making the right judgment and consequently willing the right thing, so to speak’. I am grateful to one of the reviewers of this journal for pointing this out to me.

51 To name just a few examples: MacCormick, N., Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (Oxford University Press 1999)CrossRefGoogle Scholar; Walker, N. (ed.), Sovereignty in Transition (Hart Publishing 2003)Google Scholar; Rawlings, R., Leyland, P. and Young, A. L. (eds.), Sovereignty and the Law: Domestic, European and International Perspectives (Oxford University Press 2013)CrossRefGoogle Scholar.

52 Bodin, J., On Sovereignty (Cambridge University Press 1992) p. 1Google Scholar.

53 Bodin, supra n. 52, p. 46. See also Lindahl, H., ‘Vorst, op God na. Politieke macht en de symbolisering van soevereiniteit’ [King, after God. Political Power and the Symbolization of Sovereignty], 26 Nederlands tijdschrift voor rechtsfilosofie en rechtstheorie (1997) p. 122Google Scholar.

54 Bodin, supra n. 52, p. 13 and 76.

55 Sieyès, supra n. 33, p. 136.

56 Sieyès, supra n. 33, p. 136.

57 As nicely put by Gerhard Hoogers: ‘Where the nation is, the constitution is not: and where the constitution is, where the laws are, the state and all its organs and functionaries, there the nation is not. In other words: the nation transcends the legal order and all it stands for, because the legal order originates in and from the nation’. See Hoogers, G., ‘The Paradox of Politics from a Constitutional Perspective. The Constituent Power of the People and the Representation of the General Will’, 38 Netherlands Journal of Legal Philosophy (2008) p. 163Google Scholar at p. 170.

58 Sieyès, supra n. 33, p. 137.

59 Sieyès, supra n. 33, p. 142. See also Hoogers, supra n. 57, p. 170.

60 Wintgens, L. J., ‘Sovereignty and Representation’, 14 Ratio Juris (2001) p. 272CrossRefGoogle Scholar at p. 274.

61 Lefort, C., Democracy and Political Theory, transl. David Macey (Polity Press 1988) p. 18-19Google Scholar.

62 For an overview of this medieval doctrine, the locus classicus remains Kantorowicz, E. H., The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton University Press 1998)Google Scholar.

63 Lefort, supra n. 61, p. 17.

64 In this sense, populism is not unlike totalitarianism in its discourse, as Rummens and Abt argue on the basis of the work of Lefort: Abts and Rummens, supra n. 3. See also Müller, supra n. 50, p. 487: ‘while populism does not oppose the principles of representation and the practices of election, it necessarily has to deny any kind of pluralism or social division: in the populist imagination there is only the people on the one hand and, on the other hand, the illegitimate intruders into our politics, from both above and from below, so to speak’.

65 Rosenfeld, M., The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Routledge 2010) p. 27Google Scholar. The distinction between selfhood and sameness was introduced by the French philosopher Paul Ricoeur, see Ricoeur, P., Oneself as Another (University of Chicago Press 1994) p. 117Google Scholar and further.

66 Rosenfeld, supra n. 65, pp. 27-28.

67 van Roermund, B., ‘First-Plural Plural Legislature: Political Reflexivity and Representation’, 6 Philosophical Explorations (2003) p. 235CrossRefGoogle Scholar at p. 236.

68 Rousseau, J.-J., ‘The Social Contract’ in V. Gourevitch (ed.), Rousseau: The Social Contract and other later political writings, (Cambridge University Press 1997) p. 39Google Scholar at p. 67.

69 Ricoeur, supra n. 65, p. 121.

70 Van Roermund, supra n. 67, p. 237.

71 Van Roermund, supra n. 67, p. 237-238.

72 I draw here on the understanding of collective selfhood as developed by Bert van Roermund and Hans Lindahl, see e.g. Lindahl, H., Fault Lines of Globalization: Legal Order and a Politics of A-Legality (Oxford University Press 2013)CrossRefGoogle Scholar and van Roermund, B., Legal Thought and Philosophy: What Legal Scholarship is About (Edward Elgar Publishing 2013)CrossRefGoogle Scholar.

73 Van Roermund, , supra n. 67, p. 248Google Scholar.

74 For my reading of Kelsen I am indebted to Hong, Q. L., The Legal Inclusion of Extremist Speech (Wolf Legal Publishers 2005)Google Scholar, which contains an incisive analysis of Kelsen’s theory of democracy with special attention for the question of hate speech and the enemies of democracy.

75 Kelsen, H., ‘On the Essence and Value of Democracy’, in A. J. Jacobson and B. Schlink (eds.), Weimar: A Jurisprudence of Crisis (University of California Press 2000) p. 84Google Scholar at p. 86: ‘Generally, one is born into a finished state order, in whose creation one did not take part, and which one therefore approaches from the start as an alien will. Only the furtherance and modification of this order is at issue. From this point of view, however, the principle of absolute (and not super) majority represents the relatively closest approach to the idea of freedom’.

76 Kelsen, supra n. 75, p. 100: ‘The parliamentary majority principle is perfectly suited to preventing class rule. It is telling that experience has shown it to be compatible with protection of minorities. For the concept of a majority assumes by definition the existence of a minority, and thus the right of the majority presupposes the right of a minority to exist. From this arises perhaps not the necessity, but certainly the possibility, of protecting the minority from the majority. This protection of minorities is the essential function of the so-called basic rights and rights of freedom, or human and civil rights guaranteed by all modern constitutions of parliamentary democracies’.

77 Kelsen, supra n. 75, p. 108: ‘The rule of the majority, so characteristic of democracy, is distinguished from every other sort of rule in that it not only – according to its innermost essence – conceptually requires an opposition, the minority, but also recognizes and protects it politically through basic rights and the principle of proportionality. (…) One who appeals only to earthly truth, whose social goals are steered only by human knowledge, can hardly justify the coercion inevitable for implementing the social goals except through the agreement of at least the majority of those for whom this coercive order is supposed to be beneficial. And this coercive order may be constituted only in such a way that the minority, which is not absolutely wrong, absolutely without rights, may at any time itself become a majority’.

78 Merleau-Ponty, M., Adventures of the Dialectic (Northwestern University Press 1973) p. 200Google Scholar.