The chapters in this book are timely and collectively offer a theoretically rich, empirically informed and normatively compelling alternative to a prime threat to liberal democracy today: populist constitutionalism. As I write this afterword, democracy and rights are under threat by two connected forces: populism and authoritarianism. There are many competing definitions of populism and its characteristics often vary from context to context. Here I focus on and identify anti-pluralism as an important defining feature of populism.Footnote 1 The claim to speak univocally in the name of the people often comes with authoritarian measures that seek to centralise political authority, to eliminate dissenting views in the public sphere and to undercut institutions of accountability.
Hungary, Poland, Turkey and Venezuela have all seen populist movements strengthen the power of central authorities at the same time as reducing certain types of constitutional, judicial and democratic oversight. In Western Europe, populist parties, although failing to gain electoral majorities, remain strong players in the public sphere and often invoke national constitutions in the cause of nativism. While Donald Trump has so far been unable to translate the populist wave that brought him to power into authoritarian structural reforms, the rhetoric coming out of the White House often echoes that coming out of Budapest, Warsaw and Istanbul, especially in the way it seeks to undercut criticism and dissent in the public sphere.
Whereas both populism and authoritarianism have sometimes been thought to be movements that attempt to bypass, discredit or suspend constitutions, contemporary populism has often progressed and gained ground through embracing and claiming ownership over national constitutions. Thus, constitutional reform has been the preferred means to consolidate the central authoritarian power in Hungary, Poland, Turkey and Venezuela. European and American populist movements have adopted a similar rhetoric even if they have not had a similar institutional success. In the US case in particular, the rhetoric around the First and Second Amendments has been significantly co-opted by populist political forces who present themselves as the champions of constitutional rights.
Populist constitutionalism adopts the forms and processes of constitutionalism in order to serve the overlapping ends of populism and authoritarianism that I have just identified. Populist constitutionalism poses a problem for scholars and citizens alike who believe that constitutional politics should also be democratic politics. How do we tell the difference between democratically driven constitutionalism and populist constitutionalism? Here is where the idea of deliberative constitutionalism comes in and the very important contribution that these chapters make to understanding and mapping: (a) the ways in which citizens can participate in constitution-making without hijacking constitutionalism for majoritarian, nationalist and authoritarian ends; and (b) the important freedoms (especially the freedoms to oppose, disagree and criticise power holders) that constitutions must protect to be minimally considered democratic constitutions.
Populism is univocal. It seeks to speak in the name of ‘the people’, in clear unambiguous terms. This in turn almost always involves vilifying opposition voices by identifying those voices as others or enemies, or not authentic members of ‘the people’. It is not difficult to see how constitutional talk can be hijacked in the name of ‘We the People’. Venezuela, for example, has recently elected (30 July 2017) a Constituent Assembly to reform and rewrite the constitution in the name of ‘the people’. All the form and rhetoric of a popular participatory processes were adhered to; however, only candidates loyal to the ruling party stood for election. The Constituent Assembly will speak in one voice not as the result of a process of inclusive consensus-building, but as the result of a process of exclusion. Opposition, disagreement, criticism and difference have no place in populist constitutionalism. They have no place both in the sense that constitution-making is often majoritarian (for example, the use of referendums for major constitutional change) or undertaken by partisan bodies (the Constituent Assembly in Venezuela or packed courts), as well as the fact that many of the reforms seek to give the people’s true representative more power to interfere in, control and sometimes silence civil society (for example, by limiting the judiciary’s ability to push back on state limitation of the press).
One of the challenges in identifying normative objections to populist constitutionalism is how to hold on to essential ideas of popular sovereignty and citizen participation without surrendering constitution-making and constitutional limits to the anti-pluralist forces of populism. Deliberative constitutionalism, because it invests popular sovereignty in processes of collective egalitarian discourse rather than in outcomes of majoritarian procedures or an identifiable general will, is in a good position to offer a critical yardstick for questioning the democratic credentials (not just liberal) of populist constitutionalism. Deliberation, whether in the jury, a mini-public, between judges, in a parliament or even in the chaotic unstructured public sphere, implies a multiplicity of voices, opinions and claims being voiced. Deliberation involves hearing all sides of a question, weighing conflicting arguments and assessing competing claims. This translates (ideally) into constitution-making that engages, consults, involves, informs and responds to citizens without relinquishing the process to majoritarian dynamics. Most importantly, deliberative constitution-making involves canvassing multiple and sometimes opposition arguments. Arguments, not votes pose the more serious threat to populism. Many of the chapters in this volume investigate, study and assess the success of various constitutional moments from the vantage point of this deliberative ideal. But the chapters also look into the ways that constitutions facilitate and structure deliberation. Here it becomes clear that an important democratic function of constitutions is to safeguard the spaces of argumentation, debate and criticism. To be sure, some chapters also question whether deliberative constitutionalism as a normative ideal is feasible and workable, but even here the chapters contribute to the construction of a field of study that will offer strong opposition to the claims of populist constitutionalism.
