How Populism Affects Constitutional Law

In this introductory chapter, we first argue that populism is not a uniform phenomenon. At the core of populism lies a critique of contemporary liberal democracy and its constitutional orthodoxy, but different kinds of populism may come with widely different attitudes towards constitutionalism and constitutional law. While authoritarian populism poses indeed a threat to constitutional democracy, democratic populism might rejuvenate it. However, populists’ institutional reformism is not per se incompatible with constitutionalism. It depends on the specific direction of the reforms and of the way they are carried out. Next, we revue the literature that claims a strong connection between populism and authoritarianism. This is what the historical evidence for the common genealogy, at least in some cases, of fascism and populism indicates. However, populists challenge democracy, especially its liberal version, but they typically do not aim to destroy it, since populism remains always within the paradigm of electoral democracy. In extremis, authoritarian populism may even evolve into dictatorship. Yet, when this happens, it isn’t populist in any proper sense anymore but rather a ‘pseudo-populist dictatorship’. On the other hand, authoritarian populism is only a potential outcome, while there are other populisms that are not authoritarian. Lastly, we propose a connection between populism and representative democracy’s structural contradictions: the definition of sovereignty’s agent and the contemporary tug-of-war between the people and the nation; issues concerning the participation of the citizens in the exercise of political power; the methods of expression and representation of the electorate; and the contribution of fundamental rules. Hence, we place populism within the problematic of the democratic re-organization of power at a time when the field of politics is shrinking, and the laws of market and/or science tend to become the main regulator of social relations.