The intense engagement of populists with constitutionalism—a phenomenon originally related to experiences in Latin America—is increasingly evident in some of the new European Union member states. But the populist phenomenon is clearly not confined to more recently established democracies. Populist constitutionalism stands for a number of distinctive tendencies in constitutional politics and practices which frequently are in tension with—and may even threaten—fundamental values, human rights, representative democracy, and the rule of law. The relation between populism and constitutionalism is, however, not necessarily one of anti-thesis, but rather manifests itself in distinctive ways, depending on specific contexts and variations. In this special issue, we argue that populist constitutionalism is best analyzed in a comparative, and historically and contextually attuned manner. The special issue wants to contribute to understandings of populist constitutionalism, which are both theoretically more robust and able to comparatively reflect on a diversity of “really existing” cases. The various contributions discuss central dimensions to the populist phenomenon. These pertain in particular to: (a) The varieties of populist engagement with constitutionalism; (b) a deeper understanding of the populist mindset; (c) the position-taking and reaction of constitutional scholars to populism; (d) the complex relation and overlap of populism with illiberalism and authoritarianism; and (e) the central nature of constituent power in populist projects.

The paper deals with the relationship of different types of populism with authoritarianism and constitutionalism. In the first part, I try to define various approaches—Left and Right-Wing, “good” or “bad”—to populism, especially from the point of view of whether they aim at changing the liberal democratic constitutional system to an authoritarian one. The following part discusses the rhetoric of authoritarian populists, which makes this type of populism distinct from non-populist authoritarians. The paper also explores the question of whom to blame for the success of authoritarian populisms, and the final part investigates, whether the use of legal tools by an authoritarian populist to dismantle liberal constitutional democracies means that we can speak about a special populist constitutionalism. While the paper tries to find out the joint characteristics of authoritarian populism, it heavily relies on the Hungarian experiences as a kind of model approach in East-Central Europe and maybe even beyond.

Liberal constitutionalism is under attack from a new breed of autocrats broadly classified as populist. These populists understand the weaknesses of constitutional liberalism and attack their opponents with criticisms that take advantage of internal weaknesses of the theory. But a closer analysis of theoretical framework used by populists to substitute for constitutional liberalism reveals that they are not really committed to populism in any serious sense. Instead, they have abandoned liberalism in the quest for raw power. Focusing on Viktor Orbán of Hungary and his chief ideologist András Lánczi, this article shows how their public critique of liberalism has attempted to wrong-foot their critics and how their recipe for gaining and wielding political power is only populist to the extent that these leaders are determined to (and often succeed in) winning elections. By peeling back the cover of populist ideology to look at the theories of legitimation under which they rule, however, we can see that the new breed of autocrats aims at primarily constitutional deconstruction through the concentration of political power in one leader. This sort of challenge to liberal constitutionalism is easily countered.

Populist constitutionalism is an increasingly discussed topic, but so far the analysis of the interrelation between populism and constitutionalism lacks a more systematic and comparative approach, able to bring out significant variety. Most of the recent literature on the phenomenon focuses on (right-wing) populism as a threat to constitutional democracy. This Article sets out to contribute to a more comparative and comprehensive discussion of the relation between varieties of populism—situated on a continuum from left- to right-wing, but also from national to transnational—with varieties of constitutional projects. The objective of this Article is threefold. First, I argue that it is problematic to consider legal constitutionalism as exhausting the possibilities of constitutionalism. Second, if populism is reduced to right-wing projects and as an unequivocal threat to liberal democracy, it becomes difficult to distinguish between dissimilar manifestations of populist projects, in particular regarding constituent politics. Third, while hardly any attention has been paid to constitutionalism and populist claims on the transnational level, in the European context, transnational forms of populism and constituent politics manifest themselves frequently, articulating an incisive critique on the European constitutional and political status quo, and contributing to a re-imagination and democratization of the European constitutional reality.

What role do public law and liberal constitutionalism play in an era of political populism? This article approaches this question by exploring the concept of constituent power in the light of recent constitutional developments in countries with populist governments. It attempts to outline and contrast conceptions of constituent power as inherent in liberal constitutionalist and populist thinking, respectively. While constitutionalists draw heavily upon Kelsenian normativism in framing the way political power is generated, populists juxtapose this with a concept of constituent power that is inspired by Carl Schmitt’s ‘decisionist’ view. The complacency of legality inherent in liberal constitutionalist thinking is susceptible to a populist challenge that draws attention to the necessity for the social embeddedness of any legal order. Populism, it is argued, exposes a core tension inherent in constitutionalism: How do constitutionalists reconcile their democratic aspirations with the simultaneous preclusion of certain political choices from the democratic realm? Populists can attack constitutionalism also because of the deficient conception of constituent power that underlies the latter. The article concludes that, where challenged by populists, public law can at some point no longer rely on its own force to defend itself. Its authority needs to be re-established from an extra-legal, pre-positive perspective. In an era of political populism, constitutionalist public law becomes a discourse that can challenge populism by means of the powerful reasons that inhere in the former.

The article considers populism not as common ideology but as a common strategy for implementing various distinct ideologies. Constitutional democracy and populist strategy are inherently connected. Populist strategies develop a specific rhetoric which takes root in the features of constitutional democracy. The populist rhetoric manipulates the rule-of-law and the majoritarian pillars of constitutional democracy by convincing a fictional majority that constitutional democracy gives rise to a tyranny of minorities. Populism in action represents the second facet of the populist strategy. It corresponds to a specific constitutional strategy of legal and constitutional reforms aiming at disrupting constitutional democracy. After exposing my theoretical assumption, I move to a comparative study of two countries, France and Hungary, selected according to the most different cases approach. I analyze first how Viktor Orban based his constitutional strategy on a progressive deconstruction of the post-communist legacy. I study then how Marine le Pen’s strategy consisted of a comprehensive reform of the French semi-presidential system via referendum. I finally conclude by recalling the essential role academics have to play in the fight against populism. My last point is a provocation, what if calling populism by its real diversity (fascism, racism and antisemitism) was the most efficient way to fight them?

Contemporary discussions of populism elide important distinctions between the ways in which populist leaders and movements respond to the failures of elites to follow through on the promises associated with international social welfare constitutionalism. After laying out the political economy of populisms’ origins, this Article describes the relation between populisms and varieties of liberalism, and specifically the relation between populisms and judicial independence understood as a “veto point” occupied by the elites that populists challenge. It then distinguishes left-wing populisms’ acceptance of the social welfare commitments of late twentieth century liberalism and its rejection of some settled constitutional arrangements that, in populists’ views, obstruct the accomplishment of those commitments. It concludes with a description of the core ethnonationalism of right-wing populism, which sometimes contingently appears in left-wing populisms but is not one the latter’s core components.

Populism is Janus-faced; simultaneously facing different directions. There is not a single form of populism, but rather a variety of different forms, each with profoundly different political consequences. Despite the current hegemony of authoritarian populism, a much different sort of populism is also possible: Democratic and anti-establishment populism, which combines elements of liberal and democratic convictions. Without understanding the political economy of the populist revolt, it is difficult to understand the true roots of populism, and consequently, to devise an appropriate democratic alternative to populism.

“Populism” appears everywhere: a frequently proffered assessment—or perhaps diagnosis—of constitutional systems around the world. Both its supporters and opponents emphasise its newness. But its phisiognomy, causes, and impact on legal orders and institutions are a matter of deep controversy. In a few words, its contours and core components adapt to different constitutional settings. Populist forces back a variety of agendas, which often overlap in a more rhetorically than concrete way.

The authors of this issue divide themselves among opponents to populism and moderately optimistic observers. In this respect, populism has probably become a catalyst both for its supporters and detractors. Populism identifies through ideas that rally increasing number of discontents. But also opponents identify as populists the perceived threats to liberal democracy as they understand them.

Defining populism has not simply proven to be a Sysyphean task; it has also showed that it is all but easy to pin down what a liberal democracy is made of. Contemporary debates about the fate of democracy need to abandon metaphysics for a more realistic, down-to-earth approach that is sensitive of the specificities of each constitutional setting.