Constrained Democracy

A widespread concern among many students of democracy has been the rise of illiberal democracy associated with populism. The term illiberal democracy was coined by Fareed Zakaria in 1997 to describe regimes in which competitive multi-party elections produce governments that tout their democratic credentials at the same time as they pursue policies that chip away at the liberal guardrails, constraints, and checks and balances that make democracy safe for modern constitutional orders (Reference ZakariaZakaria 1997). The trend is to move toward strong executives under the banner of direct popular mandates and to weaken civil and constitutional protections in the name of the exercise of popular sovereignty (Reference Waldner and EllenWaldner and Lust 2018). Often riding waves of nationalist or anti-immigrant sentiment, these regimes depict liberal constraints (for example, minority rights enforced by an independent judiciary) as roadblocks and obstacles put in the path of the people's will by unaccountable or ‘cosmopolitan’ elites who are out of touch with and unresponsive to the real people. Also in evidence is the gradual dampening and stifling of the full force of civil society and the public sphere as instruments of opposition and criticism. The weakening of oppositional and contestatory voices often falls short of doing away with free speech and freedom of association but aims to tilt the playing field in the public sphere in favor of the populist party or leader in power.

Identifying the primary danger of populism as a weakening of constraints, guardrails, and checks on direct plebiscitary and majoritarian power has its roots in democratic theory that has a skeptical and cautious view regarding strong ideas of popular sovereignty and the will of the people (Reference RikerRiker 1988; Reference WealeWeale 2018). The very term illiberal democracy offers a hint of that skepticism. The term suggests that there is a regime type that is indeed a democracy but simply not a liberal one and that liberalism is something added and external to democracy that restrains and checks the popular will (Reference MounkMounk 2018). The view that liberalism and democracy are in tension with each other is shared by both the liberal critics of populism as well as populists themselves. Indeed, some populist leaders are happy to divorce democracy from liberalism, arguing that throwing off stifling liberal constraints on the people's will is precisely what they seek. As Hungarian Prime Minister Viktor Orbán put it in a much-quoted 2014 speech, “We need to state that a democracy is not necessarily liberal. Just because something is not liberal, it still can be a democracy” (Reference OrbánOrbán 2014).

The illiberal democracy critics of populism have then what could be called a “constrained” view of democracy, where democracy is primarily embodied in the representative institutions of electoral democracy that channel and aggregate majority preferences but operate within strong constitutional limits (Reference WolkensteinWolkenstein 2019). Although in some sense this reproduces the same tension between liberalism and democracy as embraced by populists, just reversing the valuation, in another sense the underlying idea of democracy is very different. Two features of the populist view of democracy are particularly problematic from the “constrained democracy” view. The first is that the people rule through majoritarian institutions with as little mediation as possible. The second is that the people (now understood as speaking through the majority) have ultimate authority (sovereignty) in establishing all rules, procedures, and laws with little constraint on this authority.

For populists, democracy is rule by and for the people, and representative institutions are only democratic to the extent that they directly express or channel the people's will. Despite some rhetoric about the superiority of direct democracy to representative democracy, modern forms of populism are all representative in some sense (Reference UrbinatiUrbinati 2019). A directly elected president is still a representative, no matter how charismatically they embody the aspirations of the people. Referenda and plebiscites are shaped and dominated by the voices of party and movement leaders—in other words, representatives—who speak for the people. Populist regimes do not for the most part seek to overthrow representative democracy. They seek to make representative democracy more responsive to the people and sometimes more “like” the people. Thus, the people rule through majoritarian decision procedures, and this in turn leads to a conflation of majoritarian outcomes with the people's will. So, for example, in the aftermath of the 2016 Brexit referendum in which a slim majority approved the UK exit from the European Union, critics of the outcome and procedure were branded as “enemies of the people” by pro-Brexit press and political representatives (Van Crombrugge 2020: 7). This conflation is weaponized when attached to a strong idea of popular sovereignty. As Margaret Canovan notes, “once the notion of popular sovereignty is available in politics it is hard to avoid attempts to translate the abstract constituent sovereignty of a collective people into political action by concrete individuals” (Canovan 2005: 93; Yack 2001). Populism thus gives rise to constitutional change and amendment legitimized by simple majority mechanisms—either referenda, directly elected executives, or majorities in parliament—that undermine the liberal logic of constitutions which, among other things, limit the power of majorities. Conferring constituent power to majorities also undermines strong ideas of the rule of law.

As I previously noted, overarching concern with the need to constrain democracy is often rooted in an implicit democratic theory skeptical or anxious about investing the people with too much power or a more extreme view that implies that democracy is inherently populist (Reference RikerRiker 1988). In what follows I reconstruct two views of popular sovereignty that are available to the constrained democracy group. Whereas the next group I discuss, democratic pluralists, explicitly offer and alternative view of democracy to what they see as the populist hijacking of concepts like popular sovereignty, for theorist primarily worried about the illiberal tendencies of populism, the underlying democratic theory they presuppose is often not made explicit. The first alternative I discuss here questions the coherence of any ideas of popular sovereignty. The second idea of democracy does not give up on popular sovereignty, and indeed often champions it as the most important founding principle of modern democratic orders but limits popular sovereignty to a hypothetical status with only very limited availability for workaday majoritarian politics. I draw on some arguments of public reason liberals as an illustration of this second view.

Minimalist theories of democracy argue that, as an empirical fact and metaphysical principle, there is no popular will, only various competing ways to aggregate individual wills, and that no aggregative mechanisms can plausibly construct a collective will (Reference SchumpeterSchumpeter 1942). Ideas of popular sovereignty are dangerous fictions because they always amount to some group's arbitrary claim to ultimate authority or power. Democracy is not actual rule by the people; democracy is a way to choose rulers that is stable, relatively peaceful, and compatible with modern commitments to human rights. Thus, from one point of view, minimalists completely reject populist claims to be instantiating the will of the people, but, from another point of view, they often have no democratic reasons to criticize populist actors. As Adam Przeworski puts it, “populist parties are not anti-democratic in the sense that they do not advocate replacing elections by some other method of selecting governments” (Reference Przeworski2019: 88). Populist parties in power are often, however, decreasingly liberal and to the extent that stabilizing rules of the game—for example, a neutral umpire in the form of an independent judiciary—are weakened, these regimes threaten the delicate balance of power that maintains peace. Although the rhetoric in populist regimes draws on the democratic imaginary of participation and people power, the intent of many reforms is to solidify the populists in power (Reference MüllerMüller 2016). Minimalists’ democratic bottom line is electoral turnover. As soon as populist attempts to solidify power threaten electoral turnover, most obviously by refusing to leave office or claim victory where there was none, they have stepped over into anti-democratic territory.

Minimalists do not offer much conceptual help in combating the appeal of populist claims, however. Part of the success of populist parties within established democracies is certainly that they tap into a common understanding of democracy as rule by and for the people. They tap into popular frustration that government is not responsive to ordinary people (not “for” the people) and that the people have no or little control over what governments do (not “by” the people). Minimalist theories, which are also sometimes called elitist theories of democracy, need not stand against responsiveness, but they usually do stand against any strong idea of popular control. Indeed, as the name elitist theory suggests, they often side with leaving as much of the governing as possible to competent elites.

A second line of liberal argument to address the problems raised by populist appeals to the ultimate sovereignty of the people does not jettison popular sovereignty but constitutionalizes it. The people are the final source of authority, but the people as a truly inclusive category encompassing all citizens as equal members can only be thought of in hypothetical, counterfactual terms and never as an embodied agent acting in the political world. The people appear in the preamble to constitutions or embodied in a set of principles and arguments but not on the political stage of day-to-day politics. This can be seen in the arguments of public reason liberals, for example. Public reason is a form of reasoning or a set of reasons that ‘all can reasonably accept.’ Public reason shifts the grounds of legitimacy from consent and will to a type of justification that is inclusive of all reasonable interests and claims and looks for a point of consensus. Public reason is the reason of the ‘people’ understood not as an aggregation of natural individuals but rather as a hypothetical construction of reasonable persons guiding and constraining the sorts of proposals and claims we can legitimately make. Rather than consult all the real people, public reason asks us to incorporate the idea of all people as equals into our reasoning. The ideal is that laws and policies should be grounded as much as possible in principles that everyone can reasonably accept. In modern, complex, pluralist democracies those principles will be few and very general. They will be constitutional principles.

Public reason liberals then tend to constitutionalize the people. Christopher Eisgruber, for example, describes the Supreme Court as “a kind of representative institution well-shaped to speak on behalf of the people about questions of moral and political principle” (Reference Eisgruber2001:3). Samuel Freeman argues that for a Rawlsian “when the court effectively maintains the higher law enacted by the people, it cannot be said to be anti-democratic for it executes the people's will in matters of basic justice” (Reference Freeman1994: 661). But talk of ‘willing’ and ‘enacting’ is somewhat misleading or highly metaphorical because the higher law, or the constitution, is the expression of the people's will only to the extent that constitutional principles can be justified by public reason not because any actual people endorsed it in a vote. This view flips the populist logic. Populists see the modern liberal constitution as a counter-majoritarian and so counter-democratic institution. Public reason liberals see the modern liberal constitution as the ultimate expression of the sovereign people. Constitutions are only legitimate to the extent that their principles and applications can be mutually justifiable or acceptable to all. This view then places the abstract, universal, and hypothetical will of the people (what all could accept) against the empirical, partial, and temporal will of the majority. The former, because it can come closer to inclusivity and universality, is a more morally acceptable view of the people while that latter is always potentially exclusionary and partial (Reference Ochoa Espejo, Cristóbal Rovira, Paul, Paulina Ochoa and PierreOchoa Espejo 2017). On this view, then, “We the people of the United States” sets limits to constrain the future actions of majorities which cannot claim the mantle of the people. From this view, populists are wrong to think that liberal constraints are external to the exercise of popular sovereignty; constitutional constraints are justified and flow from the proper view of popular sovereignty.

What these two liberal views have in common is the rejection of the claim that outcomes of majoritarian voting can embody the will of the people. For minimalists this is because there is no will of the people, and for public reason liberals this is because only a hypothetical people can be inclusive. Strong constitutions and liberal constraints are important principles for both views but for slightly different reasons. Minimalists see the constraints as guaranteeing the rules of the game that maintain stability; public reason liberals see these principles as publicly justified, that is, as acceptable to all (the people).

The constrained democracy view seeks to reinstate liberal constraints and stop or reverse the backsliding in populist-led regimes. Critics of this view often point out that there is an assumption here that things were fine before the backsliding. The thrust of the illiberal democracy argument is that we need to return to some status quo ante. This fails to take seriously the democratic deficits that have contributed to the rise of populism in the first place. I turn now to an alternative response to populism that seeks to retain a strong view of popular sovereignty as the rule for and by the people.

Democratic Pluralism

In the face of populism, the democratic theory I canvas in this section reconceives popular sovereignty as dispersed across time and space and proceduralized through an interdependence of democracy and constitutionalism (Reference Arato and JeanArato and Cohen 2022; Reference Habermas and WilliamHabermas 1996; Reference MüllerMüller 2016, Reference Ochoa Espejo, Cristóbal Rovira, Paul, Paulina Ochoa and PierreOchoa Espejo 2017; Reference Rosanvallon and CatherineRosanvallon 2021; Reference RostbøllRostbøll 2023; Reference Rummens, Cristóbal Rovira, Paul, Paulina Ochoa and PierreRummens 2017; Reference UrbinatiUrbinati 2019). This critique of populism focuses on authoritarian-leaning populist attacks on pluralism, opposition, the public sphere, and civil society. I label this group democratic pluralists because they place anti-pluralism at the center of their criticism of populism but also because, in developing alternative ideas of popular sovereignty, they stress the multiple and plural institutional means through which citizens exercise popular sovereignty. Although many in this group, like the constrained democrats we looked at earlier, are worried about the erosion of rule of law and constitutional limits, they do not articulate that worry in terms of an inherent danger of an unchecked popular sovereignty or people power to a liberal order. They take issue with the idea of “illiberal democracy,” arguing that democracy and liberalism are mutually constitutive. Democratic pluralists worry that we are in a crisis of representation in which popular sovereignty is losing ground as technocracy and financial interests steer governance and neutralize the voice of the people. But they reject and find dangerous the populist response to the crisis of representation, especially in the way populists construct the people as a democratic agent.

This group begins its critique of populism not with the dangers of backsliding but with the dangers of populist conceptions of the people. They start here because their goal is to reinvigorate popular sovereignty, strong democracy, and even conceptions of the people that are democratic (or popular) but not populist. “To proceduralize the notion of popular sovereignty is not to abandon the idea that the people can and should rule themselves, but to provide a very different interpretation of the idea than we find in populism” (Reference RostbøllRostbøll 2023: 141). The problem with populism then is not that it is illiberal, but that it is a false, disfigured, or counterfeit view of democracy (Reference Rosanvallon and CatherineRosanvallon 2021; Reference UrbinatiUrbinati 2019).

Several scholars in this group have zeroed in on a particular way that the people are invoked as a defining feature of contemporary populism (Reference AratoAndrew Arato 2016; Reference MüllerMüller 2016; Reference Rummens, Cristóbal Rovira, Paul, Paulina Ochoa and PierreRummens 2017; Reference UrbinatiUrbinati 2019). There are four features of the populist idea of the people that come under criticism. The first feature is embodiment. For populists the people can only be sovereign to the extent that it has power, and it has power only to the extent that it is an agential force in the political world. The problem with embodiment is that the acting agential people will always only be a part of the whole people, who are never a singular agent but a plural amorphous idea. Here pluralists often invoke Claude Lefort's famous dictum that a “revolutionary and unprecedented feature of democracy” is that “the locus of power becomes an empty space” (Reference Lefort1988: 17). This means, first, that the people are a permanently contested, negotiated, plural, ever-changing fiction that can never be fully or unitarily embodied. And, second, modern democracies are made up of complex counterbalancing institutions, electoral turnover, competition, revisability, mediation, and generally an institutional structure that seeks to disperse power.

Populists reject Lefort's view of democracy, explicitly in the case of Reference LaclauErnesto Laclau (2005: 170) and seek to fill up that space. Populists seek “the closure of that place of power in favor of a fictitious image of the people as a homogeneous and sovereign body” (Reference Abts and StefanAbts and Rummens 2007: 415). “The claim to exclusive moral representation of real or authentic people is at the core of populism” (Reference Müller, Cristóbal, Paul, Paulina Ochoa and PierreMüller 2017: 592). Populism involves “the symbolic representation of the whole of ‘the people’ by a mobilized part” (Reference Arato and JeanArato and Cohen 2022: 13). “Populism is a phenomenology that involves replacing the whole with one of its parts” (Reference UrbinatiUrbinati 2019: 13).

The second problematic feature of a populist conception of the people is that populists in power make their claim to be pursuing the will of the people by pointing to success at the polls, whether that be elections or plebiscites and referenda. Thus, there is always a conflation between the majority and the people. Third, the mobilizing power of appeals to the people are maintained via a rhetoric of enemies of the people. Those enemies are often identified as any and all opposition voices in the public sphere, and this results in and feeds off of polarization. Finally, this view of the people is loaded into a strong idea of popular sovereignty. Populists, it is argued, invest the people with a type of permanent constituent power such that referenda and simple electoral majorities are used to amend constitutions. All constitutional limits and constraints exist at the pleasure of the people, and if these are thwarting the people and limiting their exercise, then they can be removed.

These four elements of populist appeals to the people result in, according to the democratic pluralist critique, a type of democracy that is exclusionary, majoritarian, anti-pluralist, and claims an almost unlimited constituent authority of majorities to lay down the rules of the game. Democratic pluralists propose an alternative view of the people. Given the criticisms of populism, this alternative conception of the people would have to have four features. The people would have to refer to the whole, meaning it is inclusive of all citizens as political equals; majority outcomes could not be identified as articulating the will of the people; opposition and contestation would have to be folded into the exercise of popular sovereignty and rule by the people; and popular sovereignty would have to be conceptualized as self-limiting in some way or, as Andrew Arato and Jean Cohen put it, “self-government under law” (2022: 111). Attempts to meet these four criteria are the defining feature of the group I call democratic pluralists. Although there is significant diversity and indeed disagreement when it comes to the details, the group as whole agrees that the four criteria are met through the introduction of a dispersed or proceduralized conception of the people.

Jürgen Habermas’ discursive conception of democracy is probably the most prominent example of a dispersed and proceduralized conception of the people. In his reconceptualization of democracy, “popular sovereignty is no longer embodied in a visible identifiable gathering of autonomous citizens. It pulls back into the, as it were, ‘Subjectless’ forms of communication circulating through forums and legislative bodies” (Reference Habermas and WilliamHabermas 1996: 135–136). Habermas also calls this idea “fully dispersed sovereignty” and “intersubjectively dissolved popular sovereignty” (1996: 486). Sovereignty lacking “overly concrete notions of a ‘people’ as an entity” (1996: 185), and as “communicatively fluid sovereignty” (1996: 186). Pierre Rosanvallon refers to “a generalized and expansive sovereignty of the people” (2021: 11) and Paulina Ochao Espejo describes it this way:

Christian Rostbøll recently echoed this view: “the people never appear as one, but only as a dispersed and diverse plurality. They act together only through shared procedures that connect millions of diverse and dispersed citizens, their opinion formation in civil society, and their will formation in elections and formal representative institutions” (Reference RostbøllRostbøll 2023: 141).

The dispersed idea of popular sovereignty is not the same as the hypothetical idea of popular sovereignty we looked at earlier. This brings us back to the idea of embodiment and Lefort's empty space. The hypothetical popular sovereignty of “We the People” is rarely embodied in everyday democratic politics and does not add up to the rule of the people. It is an upstream view of popular sovereignty often invoked at founding moments or for constitutional essentials. Dispersed popular sovereignty is exercised in everyday democratic politics by real people, so in this sense it is embodied. But that embodiment is detached from a unitary or identifiable agent. Embodiment is understood synchronically across multiple institutions and locations but also diachronically across time in which elections, for example, punctuate an ongoing open-ended process. Elections are important, but so are multiple sites of citizen engagement from street politics to participating in citizens’ assemblies or town halls. This view does not decenter the role of a centralized legislative authority and argue that governance is dispersed in civil society. But it does decenter the sources of claims and demands that legislatures should see themselves as responding to. Thus responsiveness, an important plank in any adequate democratic theory, is expanded beyond responding to majorities as communicated via election results. Populists attempt to simplify democracy and have all power pass through the ballot box; democratic pluralists suggest that “democratic progress implies making democracy more complex, multiplying its forms” (Reference Rosanvallon and CatherineRosanvallon 2021: 159; Reference Rosanvallon and ArthurRosanvallon 2008).

The procedural dispersed view of popular sovereignty pushes back against the final-say tradition of Hobbes and Rousseau that seeks a clear point of ultimate authority. In its place, power and authority are reconceived in legally structured often communicative terms dispersed over time and space within a democratic system. The assessment of whether the democratic system does a fair job in facilitating and empowering rule by the people must be assessed along multiple dimensions.

There is no doubt that cashing out this idea of dispersed popular sovereignty in real political and institutional terms is a challenge. Democratic pluralists often acknowledge that twenty-first-century democracies are suffering from multiple deficits that have pushed many into the arms of populists. The democratic deficit means that citizens “are not being heard, not being included in decision-making processes; it signifies that ministers are not assuming their responsibilities, that leaders are telling lies with impunity; it signifies that corruption reigns, that there is a political class living in a bubble and failing to account adequately for its actions, that the administrative function remains opaque” (Reference Rosanvallon and CatherineRosanvallon 2021: 158).

How to address these deficits? The solution is complex—literally. Dispersed popular sovereignty involves “a plurality of avenues for voice, action, and participation while refusing both the restriction of popular sovereignty to acts of voting and its re-mythologization in populist imaginary of the unitary people incarnate and acting in and through a leader” (Reference Arato and JeanArato and Cohen 2022: 188). Intermediary institutions such as social movements (Reference Arato and JeanArato and Cohen 2022), reimagined political parties (Reference MüllerMüller 2021), interactive representation (Reference Rosanvallon and CatherineRosanvallon 2021), regulated public sphere and media (Reference Habermas and JürgenHabermas 2009, Reference Habermas2022), and redesigned referenda (Reference ChambersChambers 2019) are on this pluralist agenda. This again distinguishes this group from those who worry primarily about the illiberal nature of populist backsliding. Constrained democrats want the constraints put back on; pluralist democrats want us to rethink the sites of democratic agency.