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Visions of constitutionalism: Institutions

Progressive populism and democratic constitutionalism

Akritas Kaidatzis

Abstract

Populism entails a critique of liberal constitutionalism. There are many varieties of populism, and hence of populist constitutionalism. This article argues that inclusionary democratic (as opposed to authoritarian) populism is related to popular and political constitutionalism. They share a common concern against the excessive juridification and depoliticization of society, and they call for the democratization of constitutional law, considering its current elitism, professionalism and legalism—that is, its insulation from politics and the people—as a source of peril. The article examines seminal contributions on popular and political constitutionalism by Mark Tushnet, Larry Kramer, and Richard Bellamy. It then identifies the radical-democratic element that these approaches share with progressive populism and discusses some aspects of the populist constitutionalism of the SYRIZA-led government in Greece (2015-2019). Democratizing liberal constitutionalism may counter the rise of authoritarian populism; in that respect, some amount of “healthy” populism might be necessary to fight “bad” populism, the article concludes.

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1 Introduction

  • 1 Walker 2019.
  • 2 Tushnet 2019.
  • 3 Blokker 2019a.
  • 4 Tushnet 2018.
  • 5 Bugarič 2019a.
  • 6 See, e.g., Bugarič 2019b.
  • 7 Scheppele 2019.
  • 8 Howse 2019; Blokker 2019a; Bugarič 2019a.
  • 9 Halmai 2019; cf. Fontana 2018, distinguishing between “bundled” and “unbundled populism.”

1Scholarship on the relation between populism and constitutionalism has evolved from a rather simplistic approach that sees populism solely as a threat to constitutional democracy to more nuanced elaborations. Scholars now acknowledge that populism’s constitutional orientation occupies a place between authoritarian and popular constitutionalism.1 Moreover, not all populism is the same: there are varieties of populism2 and hence of populist constitutionalism.3 Populism can be exclusionary or inclusionary, right-wing or left-wing,4 authoritarian or democratic.5 Authoritarian populism is on the rise worldwide6—even if it’s not always clear whether certain cases are populist at all or rather plainly authoritarian.7 But democratic and emancipatory, or indeed “good,” populism is also possible.8 It is argued, moreover, that only the latter is “true” populism, while the former is “false populism” using populist rhetoric to conceal its authoritarian aims.9

2Nevertheless, any kind of populism entails a critique of liberal constitutionalism. Populist constitutionalism, understood as the populists’ attitude toward constitutionalism, is a form of constitutional critique and “counter-constitutionalism” that

brings to the fore the intrinsic problems of a one-sided legal constitutionalism grounded in hierarchy, judicial prerogative, foundationalism, and depoliticization, which tends to result in a lack of democratic interaction and engagement of larger society with constitutionalism (Blokker 2018: 125).

  • 10 Blokker 2019b; 2018.

3The populists’ main attitude toward public law is what Paul Blokker calls “legal resentment.”10

  • 11 See, e.g., Blokker 2019a; Walker 2019.
  • 12 An early exception being Corso 2014.
  • 13 See infra section 2.

4While recent scholarship acknowledges some, perhaps elective, affinity between that kind of critique and popular or political constitutionalism,11 scholars have been generally reluctant to openly relate the latter to populism.12 However, like populism, popular and political constitutionalism also entail a critique of constitutional orthodoxy. After all, the very term “populist constitutionalism,” before being appropriated by scholars of populism, has been used by constitutional scholars to denote the kind of critical approach to constitutional law that eventually evolved into popular constitutionalism.13

5In this article, I argue that popular or political constitutionalism informs the constitutional attitudes of those endorsing inclusionary democratic (or “good”) populism. Moreover, popular or political constitutionalism provides a means to fight the rise of exclusionary authoritarian (or “bad”) populism. The article proceeds as follows: In the next section, I examine popular (or, originally, populist) and political constitutionalism as alternative understandings of constitutional law, challenging the dominant model of liberal or legal constitutionalism. To do so, I briefly discuss the seminal contributions by Mark Tushnet, Larry Kramer, and Richard Bellamy. In section 3, I argue that popular and political constitutionalism share with progressive populism a common concern against the excessive juridification and depoliticization of society. They call for enhanced popular involvement in determining constitutional meaning, and for the democratization and social responsiveness of constitutional law. In section 4, I test my hypothesis by examining the recent Greek experience. The SYRIZA-led government (2015-2019) adopted a democratic-populist constitutional stance, which seems to be informed by, and at the same time confirm, basic tenets of popular or political constitutionalism. I conclude by highlighting the importance of democratic constitutionalism. In order to fight the threat posed by right-wing authoritarian populism, we need to strengthen the democratic component of liberal democracy.

2 Alternative models of contemporary constitutionalism

  • 14 Ginsburg 2008.
  • 15 Hirschl 2007.

6Judicial review of legislation has been established, almost globally, as an indispensable feature of contemporary constitutionalism.14 Constitutional courts and constitutional adjudication are these days more powerful than ever. While many have hailed this development as rights-enhancing and power-diffusing, others contend that it might conceal an elite-driven attempt to insulate policymaking from democratic politics, or what has been termed “juristocracy.”15 The dominant model of liberal, or legal, constitutionalism is defined by its emphasis on courts and their ability to restrain politics; or, by the primacy of law over politics. There are several objections to this understanding. Empirically, its emphasis on the judiciary might be misleading since much of constitutional law is (still) made outside of the courts. Normatively, it might be democratically undesirable to leave control of constitutional meaning to unelected judges. This kind of critique leads to alternative understandings of constitutionalism.

  • 16 See infra sub-section 2.1.
  • 17 See infra sub-section 2.2.
  • 18 See infra sub-section 2.3.

7In the 1990s, progressive constitutional scholars in the USA contributed to what was originally identified as “populist constitutional law.”16 Rejecting the doctrine of judicial supremacy, they emphasized the role of the elected branches of government, and ultimately of the people themselves, in constitutional law. This kind of critique was later more appropriately re-labeled “popular constitutionalism”.17 In the 2000s, a revival of the old British concept of the political constitution resulted in what constitutional scholars in the UK call “political constitutionalism.”18 This advances the idea that checks on government should be political rather than legal, and should be realized in parliament rather than in courtrooms.

2.1 Populist constitutional law

  • 19 Parker 1993; Balkin 1995. For an excellent overview, see Corso 2014.

8As a reaction to the conservative turn of the U.S. Supreme Court, progressive constitutional scholars in the USA contested the doctrine of judicial supremacy, according to which the courts, and ultimately the Supreme Court, are the final and authoritative interpreters of the constitution. The critics lamented the elitist element in judge-made constitutional law and its insulation from the beliefs and aspirations of ordinary people. Notions of popular sovereignty and self-government are central to this kind of critique; as is an underlying assumption, unmistakably populist, that favors the political energy of ordinary people.19

  • 20 Tushnet 1999: ch. 8.
  • 21 Tushnet 1999: xi.
  • 22 Tushnet 1999: x.

9The most elaborated exposition of this strand of thought can be found in Mark Tushnet’s Taking the Constitution Away from the Courts, a book about what the author calls “populist constitutional law”,20 which is thought of as an alternative to “the elitist constitutional law that dominates contemporary legal thinking.”21 Tushnet argues that we tend to overemphasize the courts’ role in enforcing the constitution while underestimating the role the political branches, especially Congress, can and do play. Much constitutional interpretation takes place outside the courts, in Congress or elsewhere, and the courts’ interpretations frequently interact with those other interpretations. “Constitutional theory,” then, “must make sense of how people deal with the Constitution away from the courts if it is to provide an accurate account of our constitutional practice.”22

  • 23 Tushnet 1999: 9-14.
  • 24 Tushnet 1999: xi.

10How people—as opposed to legal professionals—deal with the constitution is at the heart of a populist theory of constitutional law. Tushnet proposes a distinction between the thick constitution, which “contains a lot of detailed provisions describing how the government is to be organized,” and the thin constitution, which refers to “its fundamental guarantees of equality, freedom of expression, and liberty.”23 While people are generally indifferent to the technicalities of the thick constitution, they do care a lot about the fundamental principles of the thin constitution. Politics partly revolves around their proper realization and the choice among competing visions about their meaning. In that respect, by participating in politics, the people contribute to the creation of constitutional meaning. “Populist constitutional law gains its content from discussions among the people in ordinary political forums,” Tushnet argues, “and political leaders play a significant role in assisting the people as we conduct those discussions.”24

  • 25 Tushnet 1999: 157.
  • 26 Tushnet 1999: 182.
  • 27 Tushnet 1999: 69.
  • 28 Tushnet 1999: 52.

11Tushnet advances the normative claim that there is no compelling reason why one should prefer the courts’ interpretations of the thin constitution over the people’s. This rests on the idea that “we all ought to participate in creating constitutional law through our actions in politics.”25 Hence, constitutional responsibility is distributed broadly throughout the population, and constitutional law is “in the hands of the people themselves” not in the hands of lawyers and judges.26 Populist—as opposed to elitist—constitutional law rests on a commitment to democracy. It takes the people’s constitutional considerations, as articulated through politics, seriously. It focuses on democratic and legislative responsibility for enforcing the thin constitution27 and rejects the idea that the constitution is what a majority of the Supreme Court says it is. For a populist constitutionalist, the constitution would rather be “what a majority of Congress says it is.”28

  • 29 Tushnet 1999: 153.
  • 30 Tushnet 1999: ch. 7; Tushnet 2011.

12A positive argument further supports Tushnet’s normative claim. Examined over longer periods of time, courts tend to be “more or less in line with what the dominant national political coalition wants.”29 Despite being portrayed as a counter-majoritarian institution, judicial review has, on balance, a rather small overall effect; it actually matters less than we tend to assume. Engaging in a thought experiment, Tushnet contends that abolishing judicial review wouldn’t make much difference to society or to the liberties of the American people.30 States such as the UK or the Netherlands prove that a reasonably well-functioning democracy need not have US-style judicial review. After all, courts may still enforce rights even without the power of judicial review of legislation. They can review executive action that infringes constitutional rights; and they can always enforce statutory rights.

  • 31 Tushnet 1999: 174.
  • 32 Tushnet 1999: 186.
  • 33 Tushnet 1999: 181.
  • 34 Tushnet 1999: 187.

13Populist constitutional law, Tushnet concludes, enables us to “take an active role in constructing our constitutional rights without relying on the courts to save us from ourselves.”31 It “returns constitutional law to the people, acting through politics.”32 We shouldn’t be scared by that prospect if we acknowledge that “the Constitution belongs to us collectively, as we act together in political dialogue with each other—whether we act in the streets, in the voting booths, or in legislatures as representatives of others.”33 The closing line of his book is: “As Lincoln said, the Constitution belongs to the people. Perhaps it is time for us to reclaim it from the courts.”34

  • 35 Waldron 2006.

14Tushnet’s approach might seem parochial, as it only deals with U.S. constitutional law. Others have made similar claims in a more conceptual and less context-dependent way. Most prominently, Jeremy Waldron argued not only that judicial review is democratically illegitimate but also that, in a reasonably well-functioning democracy, there is no reason to suppose that rights are better protected by this practice than by legislatures.35 Nevertheless, Tushnet’s contribution is important because he tests his claims in a real existing democracy—and one that is peculiarly fixated on the practice of judicial review. Tushnet’s argumentation is remarkably clear-cut exactly because he examines an extreme case.

2.2 Popular constitutionalism

  • 36 Stavrakakis 2017.
  • 37 Kramer 2004; 2005.

15Scholars soon abandoned the term “populist constitutional law.” This must have something to do with the pejorative sense that populism started to acquire.36 Larry Kramer, in his book The People Themselves: Popular Constitutionalism and Judicial Review, came up with a terminologically more appropriate alternative.37

  • 38 Kramer 2004: 8.
  • 39 Kramer 2004: 8.
  • 40 Kramer 2004: 29.
  • 41 Kramer 2004: 48.

16Popular constitutionalism is “the active sovereignty of the people over the Constitution.”38 For most of its history, Kramer argues, “American constitutionalism assigned ordinary citizens a central and pivotal role in implementing their Constitution,”39 until relatively recently, when the idea of judicial supremacy prevailed. In the past, Americans understood fundamental law as “law created by the people to regulate and restrain the government,” whereas ordinary law was understood as “law enacted by the government to regulate and restrain the people.”40 Hence, while government officials, and ultimately the courts, are the authoritative interpreters of ordinary law, fundamental law cannot be interpreted authoritatively by the same persons it is supposed to regulate; this is the people’s duty. Popular constitutionalism is about “[t]he people’s interpretive authoritytheir active control over the meaning and enforcement of their constitutions.”41

  • 42 Kramer 2004: 108.
  • 43 Kramer 2004: 92.
  • 44 Kramer 2004: 98-99.

17The people enforce the constitution through politics and within the political system by employing what Kramer calls “political-legal” devices.42 These can take various forms. The people may act directly, exercising their rights to vote, petition or assembly. Or indirectly, through their elected representatives. Or even through the courts. Popular constitutionalism is not incompatible with judicial review as long as the courts act as agents of the people, engaging in “a ‘political-legal’ act of resistance.”43 Crucially, this means that courts may only refuse to enforce a law when its unconstitutionality is “clear beyond dispute.”44 Judicial restraint is a built-in mechanism of popular constitutionalism.

  • 45 Kramer 2004: 207.
  • 46 Kramer 2004: 217 (quoting F. D. Roosevelt).
  • 47 Kramer 2004: 168, 185.
  • 48 Kramer 2004: 164.

18This has been “the dominant public understanding” over much of American history, Kramer contends.45 As president Roosevelt famously asserted in a speech in 1937, the constitution is “a layman’s document, not a lawyer’s contract,” and “[w]henever legalistic interpretation has clashed with contemporary sense on broad national policy, ultimately the people and Congress have had their way.”46 Clearly, this no longer holds true. Kramer describes the process of change as the “assimilation of fundamental law into ordinary law,”47 a process of depoliticization and professionalization of constitutional interpretation, which came to be dominated by legal professionals and, ultimately, by the courts. Constitutional law gradually lost its distinctiveness as a special kind of popular law and “was recast as a kind of ordinary law,”48 the kind of law that is the proper domain for lawyers and judges.

  • 49 Kramer 2004: 132.
  • 50 Kramer 2004: 228.
  • 51 Kramer 2004: 248.

19This goes hand in hand with a subtler and more profound change in the understanding of popular sovereignty. For popular constitutionalists, the people are always present in a constitutional democracy, actively preserving sovereignty over their constitution. They shape, through the course of everyday politics, the way the constituted powers interpret the constitution. For judicial supremacists, on the other hand, popular sovereignty is only expressed at the rare moment of founding when the people act as the constituent power, only to virtually disappear thereafter. Hence, while the former consider judicial review “mainly as a device to protect the people from their governors,” the latter view it “first and foremost as a means of guarding the Constitution from the people.”49 But then, “a lawyerly elite” are in charge of the constitution rather than the people.50 Kramer concludes by urging Americans to reclaim their constitution: “The Supreme Court is not the highest authority in the land on constitutional law. We are.”51

  • 52 Tushnet 2005; 2015.
  • 53 Tushnet 2013a.
  • 54 Tushnet 2015.
  • 55 Donelly 2012.

20Acknowledging that the term proposed by Kramer is more appropriate than his own,52 Mark Tushnet clarified that popular constitutionalism is embedded within the structures of the political system and operates in and through political institutions.53 It is about people acting in ordinary politicsonly a (small) part thereof is people in the streets. It does not call for some form of plebiscitary democracy;54 nor for bare majoritarianism or legislative supremacy.55

2.3 Political constitutionalism

  • 56 Tomkins 2005.

21By the turn of the century, several constitutional developments in the UK—i.e., supremacy of EU law, jurisdiction of the European Court of Human Rights, the Human Rights Act 1998 granting UK courts the power to review legislation—advanced the idea of what came to be known as legal constitutionalism. Critics contested the emerging constitutional orthodoxy as both undemocratic and ineffective, insisting that checks on government should be political rather than legal and should be realized in parliament by the people’s representatives rather than in courtrooms by judges.56

  • 57 Bellamy 2007: 260.
  • 58 Bellamy 2007: 9.
  • 59 Bellamy 2007: vii.

22A radical elaboration is Richard Bellamy’s Political Constitutionalism, which the author boldly summarizes as an attempt to defend democracy against judicial review.57 Bellamy’s argument is that rights are better protected through democratic politics than through judicial enforcement. He claims that common perceptions about courts as essential safeguards against arbitrary rule rest on assumptions that don’t hold in reality. Especially in hard cases, “legislatures neither perform so poorly nor courts so well” as is usually assumed.58 His central claim though is normative, based on the contested nature of rights. In an open and democratic society, there is not, and cannot be, a single “true” or “correct” understanding of any given right, waiting for the courts simply to unveil. Reasonable and well-meaning people frequently disagree over the content of rights and their relationship to each other. By striking down democratically enacted legislation, courts may simply substitute their own understanding for the people’s as determined by their representatives. “Far from guarding against a largely mythical tyranny of the majority,” then, the checks imposed by judicial review on majoritarian decision-making risk “entrenching the privileges of dominant minorities and the domination of unprivileged ones.”59

  • 60 Bellamy 2007: vii.

23It is rather “the workings of actually existing democracies,” i.e., party competition and majority rule based on political equality and governmental accountability, that “offer adequate, if not perfect and certainly improvable, safeguards against domination and arbitrary rule.”60 Specifically:

A procedure that allows all views to be expressed, seeks to a degree to integrate them and show equal concern as well as respect to the various issues different perspectives raise, and allows decisions to be challenged and amended to take into account new information and changing values and circumstances, should have a greater chance of securing the assent and collaboration of the political community than one that devolves this decision to a group that is neither representative of, nor directly accountable to, popular opinion. For what touches all should surely be decided by all (Bellamy 2007: 51).

  • 61 Bellamy 2007: 145.

24Hence, democratic decision-making should be seen as actively promoting, rather than threatening, constitutional values.61

  • 62 Bellamy 2007: 262-3.
  • 63 Tushnet 2011: 587 fn. 20; Tushnet 2013a: 8.
  • 64 Tushnet 2013b.
  • 65 Bellamy 2019.

25Bellamy is well aware that the global trend is in the opposite direction, toward the American style of legalism and judicial review. But he insists that legal constitutionalism “is more likely to be part of the problemhelping corrode the very democratic processes it seeks so inadequately to replace,” while the real danger is “tyranny by unrepresentative minorities rather than a majority.”62 Nevertheless, as he acknowledges that there are elements of both legal and political constitutionalism in most constitutions, his analysis leaves room for some kind of judicial review. Mark Tushnet—who, interestingly, considers political constitutionalism as a better term for what Americans call popular constitutionalism63—links political constitutionalism to weak-form judicial review, which allows for legislative responses to courts’ constitutional specifications.64 Bellamy seems to endorse this connection.65

  • 66 Tomkins 2013: 2275.
  • 67 Loughlin 2019: 12.
  • 68 Goldoni 2012.

26Political constitutionalism’s basic premise, the distinction between the political and the legal constitution, has been questioned as either “a rather outdated contrast” concealing the mixed nature of the constitution66 or as leading to “an entirely fruitless debate.”67 Despite internal critiques within the political constitutionalist literature,68 there is nevertheless a strong, and undeniably populist, message in it: more power should be given to the people acting through politics to create constitutional meaning.

3 Common ground: democratic vs liberal constitutionalism

27Despite differences both between and within them, these alternative understandings of constitutionalism share some common ground. The most apparent is that they are meant as a critique of the dominant model of contemporary constitutionalism, or the constitutional orthodoxy. In the U.S. context, this is the doctrine of judicial supremacy. Political constitutionalists call it legal constitutionalism.

  • 69 Tushnet 2015: 8; Tushnet 2013: 2250.
  • 70 Blokker 2019b: 535-6.
  • 71 Blokker 2019b: 535-6. Other terms are also used, such as liberal legalism.

28Mark Tushnet thinks the term “judicial constitutionalism” more accurately displays the target of both popular and political constitutionalism: not law as such, “but rather the assumption that everything deserving the name ‘law’ must be enforced by the courts.”69 Skepticism about judicial review and a call for judicial restraint—in the sense that courts should stick to plain constitutional interpretation and avoid sophisticated constructions—are indeed at the core of these approaches. Moreover, popular and political constitutionalism oppose, more broadly, the “tendency to depoliticization” with its “emphasis on legal rationality, the neutrality of the state, and formal-legal proceduralism.”70 This might be better captured by the term, more familiar to populism scholars, “liberal constitutionalism.”71

  • 72 Ginsburg, Huq & Versteeg 2018: 239-40.
  • 73 Tushnet 2016.

29There is an obvious terminological difficulty here. Liberal constitutionalism can have two different meanings. In a broad sense, it refers to the constitutional settings of liberal democracy, a governmental system of popular sovereignty under the rule of law. This is “a form of constitutionalism that broadly seeks to protect democracy and limit power,”72 a definition that captures the defining idea—combining democracy with liberalism—of modern representative democracy. This very thin, and therefore very broad, definition only excludes such varieties of constitutionalism73 that either deviate from liberal democracy despite nominally adhering to it (e.g., illiberal or authoritarian constitutionalism), or refer to alternative systems of constitutional government that reject Western type representative democracy (e.g., Islamic constitutionalism).

  • 74 Tushnet 2021.

30But, in a narrow sense, liberal constitutionalism is also used to refer to the constitutional settings of those variants within liberal democracy74 in which the combination of democracy and liberalism comes with a preference, even if only slight, for the latter. Take, for example, this description: Liberal constitutionalism

typically hinges on a written constitution that includes an enumeration of individual rights, the existence of rights-based judicial review, a heightened threshold for constitutional amendment, a commitment to periodic democratic elections, and a commitment to the rule of law (Ginsburg, Huq & Versteeg 2018: 239).

  • 75 Liberal constitutionalism in that narrow sense tends to overemphasize the limiting aspect of consti (...)
  • 76 See Post & Siegel 2009.

31The liberal component appears rather thick here, while the democratic relatively thin, virtually reduced to safeguarding free and fair elections.75 Democracy, however, is more than that. Others may prefer variants of liberal democracy in which the combination of democracy and liberalism comes with a preference, even if only slight, for the former. These are variants of democratic (as opposed to liberal in the narrow sense) constitutionalism.76

  • 77 Scheppele 2019.

32Liberal constitutionalism in the broad sense is an overarching category encompassing different variations of both democratic and liberal constitutionalism in the narrow sense. Of course, we need not stick to this terminological ambiguity. We can always distinguish the latter category by calling it legal or judicial constitutionalism, or perhaps more appropriately, constitutional liberalism.77 The nomenclature is not important. The point here is that, when we talk about critiques of liberal constitutionalism, we do not always mean the same thing. Populism entails such a critique. Popular and political constitutionalism also do. In some cases, these coincide, in others, not.

  • 78 Which, however, need not be identified with modern representative democracy as we currently know it (...)
  • 79 Walker 2019: 519.
  • 80 See Bellamy 2007: ch. 6 on “the democratic constitution.”
  • 81 See supra fn. 8.
  • 82 Bugarič 2019b; Halmai 2019; Scheppele 2019.

33Popular and political constitutionalism’s critiques emerge from within liberal democracy.78 They only oppose liberal constitutionalism in the narrow sense while remaining within the ambit of liberal constitutionalism in the broad sense. While unequivocally accepting both sides of “the defining tension of modern constitutionalism,”79 they nevertheless aim to reinforce the democratic component of representative democracy by democratizing constitutional law. They are versions of democratic constitutionalism.80 On the other hand, this is exactly what some versions of (democratic) populism also aim for.81 At the same time, other versions of (authoritarian) populism extend their constitutional critique to liberal constitutionalism in the broad sense, and therefore to liberal democracy as such.82

  • 83 Goldoni & McCorkindale 2019.
  • 84 Gee 2019; Schmidt 2011.
  • 85 The Unger quote appears in both Kramer 2004: 241-242, and Bellamy 2007: 1-2, 209.

34Of course, as there are varieties of populism, there are also varieties of popular or political constitutionalism,83 which, although often associated with progressives and the political left, may also appeal to the political right.84 Nevertheless, there is a tentative connection between at least some versions of inclusionary and emancipatory left-wing populism and those versions of popular or political constitutionalism that are inspired by a radical-democratic vision. There is a well-known quote by Roberto Unger that forcefully captures exactly that kind of connection.85 Unger identifies as one of the “dirty little secrets” of contemporary jurisprudence its “discomfort with democracy” and the “fear of popular action:”

The discomfort with democracy shows up in every area of contemporary legal culture: in the ceaseless identification of restraints upon majority rule, rather than of restraints upon the power of dominant majorities, as the overriding responsibility of judges and jurists; in the consequent hypertrophy of countermajoritarian practices and arrangements; in the opposition to all the institutional reforms, particularly those designed to heighten the level of popular political engagement, as threats to a regime of rights; in the equation of the rights of property with the rights of dissent; in the effort to obtain from judges, under the cover of improving interpretation, the advances popular politics fail to deliver… Fear and loathing of the people always threatened to become the ruling passions of this legal culture (Unger 1996: 72-73).

  • 86 A familiar counter-critique, most forcefully articulated by David Dyzenhaus, is that by questioning (...)
  • 87 The adjective “ordinary” (politics, citizens, law, legislation etc.) appears 55 times in Tushnet 19 (...)

35Popular and political constitutionalism’s critique of excessive juridification is a response to exactly the kind of concerns that Unger voices. This democratic critique is marked by its anti-elitism, anti-professionalism, and anti-legalism.86 The creation of constitutional meaning is not reserved for legal elites acting through formal-legal procedures; it is equally a matter for “ordinary” people acting within “ordinary” politics and through “ordinary” legislation.87 There is a strong inclusionary and emancipatory element in this approach.

36But there is also in (at least some versions of) progressive populism.

4 Progressive populism and democratic constitutionalism in Greece 2015-2019

  • 88 Law 3900/2010.

37Following the global trend, in recent decades the Greek judiciary has more intensely used its power to review legislation. While Greece has no constitutional court, the Council of State, the highest administrative court, has assumed a role vaguely resembling one, especially after 2011 when legislation enabled it to hear cases in pilot trials.88 The delegitimization of the political system during the same period, due to the fiscal crisis, seems to have contributed to this trend. In this section I will discuss three high-profile constitutional cases decided by the Council of State and the reaction of the SYRIZA-led government (2015-2019).

  • 89 Stavrakakis & Katsambekis 2014.
  • 90 Katsambekis 2019; Kioupkiolis & Katsambekis 2020.

38Left-wing SYRIZA (the acronym standing for Coalition of the Radical Left) won national elections both in January and September 2015 on a strong anti-austerity and anti-establishment agenda. As an opposition party, it was exemplified as a case of left-wing populism.89 Despite watering down its populist discourse while in government, SYRIZA nevertheless retained significant elements of an inclusionary and democratic populism, even if in a mild and low-key fashion.90 The way the SYRIZA-led government responded to seminal constitutional judgments exhibits, I argue, the interplay between progressive populism and popular or political constitutionalism.

  • 91 See Christopoulos 2017.
  • 92 Law 3838/2010.
  • 93 Council of State judgment 460/2013.

39(a) Immigrants’ citizenship case.91 A 2010 statute, initiated by the center-left PASOK government, enabled second generation immigrants to obtain Greek citizenship.92 In 2013, the Council of State found the statute unconstitutional and annulled implementing secondary legislation.93 The judiciary thus deprived members of a minority of a right the legislature had previously given them. The decision was hailed by the coalition government then in power, whose main partner, the conservative New Democracy party, opposed immigrants’ citizenship. Finding the previous majority’s statute unconstitutional, the Council of State effectively aligned itself to political change.

  • 94 Law 4332/2015.
  • 95 Katsambekis 2019; Markou 2017.

40A new statute, initiated in 2015 by the SYRIZA-led government, restored the immigrants’ right to citizenship with only minor changes.94 Equal rights for immigrants have been high on SYRIZA’s agenda, related to its populist rhetoric of being a government for “the many,” in contrast to the corrupt elites of the establishment that only really care about “the few.”95 This time, the judiciary didn’t react, and the statute has been successfully implemented ever since.

  • 96 See Kaidatzis 2021.
  • 97 Laws 4051/2012 and 4093/2012.
  • 98 Council of State judgment 2287/2015.
  • 99 In October 2014, the Council of State (judgment 3410/2014) found that the pension cuts were not unc (...)

41(b) Pension cuts case.96 Legislation enacted in 2012 induced significant pension cuts, which disproportionately affected higher-income pensioners.97 Part of the second economic adjustment program agreed between the Greek government and its creditors, the cuts were imposed on top of previous cuts imposed by the first program. In a pilot trial decided in June 2015, the Council of State ruled that the 2012 cuts were unconstitutional.98 It thus provided millions of pensioners with an entitlement to claim restoration of their pensions. The Council of State only found the cuts unconstitutional after the 2015 governmental change,99 reflecting the SYRIZA-led government’s stark opposition to economic adjustment and the ensuing austerity. Again, the Council of State effectively aligned itself to political change.

42Soon thereafter the government succumbed and consented to a third program and a new austerity package, this time, however, offset by welfare policies for its most vulnerable victims. Restoring pensions under these conditions would require a massive re-allocation of budgetary resources, which would mostly affect the needy and poor. Consistent with its inclusionary populist claim to represent “the have-nots,” the government chose not to restore pensions, in order to preserve its welfare policies. The Council of State judgment remained practically ineffective.

  • 100 Ministerial decision 143575/2016.
  • 101 Special religious education is offered in some parts of Greece for pupils of the Muslim minority an (...)
  • 102 Council of State judgment 660/2018.

43(c) Religious education case. In September 2016, the education minister of the SYRIZA-led government approved new religious class curricula that were inter-religious and enabled all pupils to attend class.100 Until then, schools provided Christian orthodox religious education, and non-orthodox pupils were excused from class.101 In March 2018, the Council of State found the ministerial decision unconstitutional and annulled it.102 Once again, the judiciary deprived members of a minority group of a right that this time the executive had given them.

  • 103 Eventually, ministerial decision 101470/2017 was also annulled in October 2019 (Council of State ju (...)

44The government’s response was to simply defy the ruling. In 2017, having enacted a decision identical to the one annulled, the education minister refused to revoke it, and the new religious class curricula remained in force.103

  • 104 For both assumptions, see Yowell 2018.

45What do these cases show us? First, despite widespread belief to the contrary, courts often are majoritarian institutions. In both the immigrants’ citizenship and the pension cuts cases, the Council of State seems to have followed the electoral cycle. Second, and again, despite widespread belief to the contrary, the political branches often do a better job than courts in protecting minorities’ rights.104 In both the immigrants’ citizenship and the religious education cases, the Council of State deprived minorities of acquired rights. It was the political branchesthe legislature and the executivethat created those rights in the first place. And they did so despite large parts of the electorate being hostile to equal rights for immigrants, or inter-religious education. The Council of State, then, might have actually ruled in favor of a majority in the population (again, this is majoritarianism, albeit of a different kind).

  • 105 Kaidatzis 2021.

46Third, courts do not just protect rights as a matter of principle, but also effectively shape and reshape public policies. The pension cuts case seems to be about enforcing pensioners’ economic rights. These, however, require vast budgetary resources, which will inevitably reduce social spending on other policies. The Council of State decision effectively benefits people from the middle classes who are relatively better-off, as they at least get a pension, and they have privileged access to courts over and to the detriment of the poor and socially excluded.105 Thus, it favors a privileged minority over unprivileged ones.

  • 106 Tushnet 2015: 7-8.
  • 107 See Tushnet 1999: 124, 127.

47Perhaps more interesting is the way the political branches, “the people through politics”here, a progressive populist majorityresponded to constitutional judgments with which they disagree. What does that show us? First, it is perfectly possible for the political branches to insist on promoting rights, even in the face of judicial decisions that erroneously find rights-promoting legislation unconstitutional.106 Moreover, the elitist preoccupation that politics is not suitable for protecting minorities’ rights, which are inevitably dependent on the judiciary, might be plainly wrong.107 Finally, committed political majorities may eventually get what they want despite an opposing judiciary: the constitutional judgments discussed here did not have, as a practical matter, any considerable effect.

  • 108 Admittedly, there is a thin line between refusing to enforce a judgment on constitutional grounds a (...)
  • 109 This agenda has also been manifested in laws 4356/2015 recognizing civil partnership for same-sex c (...)

48All this seems like a manifestation of popular or political constitutionalism in practice,108 practiced by a left-wing populist party in government, combining the rhetoric of being a government for “the many” with an inclusionary and emancipatory agenda for unprivileged minorities, be it immigrants, religious minorities, or the poor.109

5 Conclusion

49Popular and political constitutionalism entail a forceful critique of the dominant model of liberal (or legal) constitutionalism, and both share a common concern against the excessive juridification and depoliticization of society. They call for the democratization of constitutional law, considering its current elitism, professionalism, and legalismthat is, its insulation from politics and the peopleas a source of peril. This kind of critique informs some varieties of left-wing inclusionary democratic populism. A prominent, even if rare example, is the mild and low-key populist constitutionalism of the SYRIZA-led government in Greece between 2015-2019, which seems to be informed by, and at the same time confirm, basic tenets of popular or political constitutionalism. The radical-democratic element contained both in (at least, some versions of) popular and political constitutionalism and in (at least, some versions of) progressive populism, seems to provide a means to fight authoritarian populism. It might not be a coincidence that, despite having been brutally affected by the fiscal crisis, Greece did not experience the rise of authoritarian populism as other parts of Europe did. The message, then, seems to be that in order to deter authoritarian populism, we need to strengthen the democratic component in liberal democracy. Some amount of “healthy” populism might be necessary to fight “bad” populism.

—Acknowledgments. This article is part of a research work that is supported by the Hellenic Foundation for Research and Innovation (HFRI) under the 1st Call for HFRI research projects to support faculty members and researchers (Project Nr.: HFRI-FM17-1502). Many thanks to Alexandros Kessopoulos, Yiannis Stavrakakis, and the two anonymous reviewers for comments on earlier drafts.

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Notes

1 Walker 2019.

2 Tushnet 2019.

3 Blokker 2019a.

4 Tushnet 2018.

5 Bugarič 2019a.

6 See, e.g., Bugarič 2019b.

7 Scheppele 2019.

8 Howse 2019; Blokker 2019a; Bugarič 2019a.

9 Halmai 2019; cf. Fontana 2018, distinguishing between “bundled” and “unbundled populism.”

10 Blokker 2019b; 2018.

11 See, e.g., Blokker 2019a; Walker 2019.

12 An early exception being Corso 2014.

13 See infra section 2.

14 Ginsburg 2008.

15 Hirschl 2007.

16 See infra sub-section 2.1.

17 See infra sub-section 2.2.

18 See infra sub-section 2.3.

19 Parker 1993; Balkin 1995. For an excellent overview, see Corso 2014.

20 Tushnet 1999: ch. 8.

21 Tushnet 1999: xi.

22 Tushnet 1999: x.

23 Tushnet 1999: 9-14.

24 Tushnet 1999: xi.

25 Tushnet 1999: 157.

26 Tushnet 1999: 182.

27 Tushnet 1999: 69.

28 Tushnet 1999: 52.

29 Tushnet 1999: 153.

30 Tushnet 1999: ch. 7; Tushnet 2011.

31 Tushnet 1999: 174.

32 Tushnet 1999: 186.

33 Tushnet 1999: 181.

34 Tushnet 1999: 187.

35 Waldron 2006.

36 Stavrakakis 2017.

37 Kramer 2004; 2005.

38 Kramer 2004: 8.

39 Kramer 2004: 8.

40 Kramer 2004: 29.

41 Kramer 2004: 48.

42 Kramer 2004: 108.

43 Kramer 2004: 92.

44 Kramer 2004: 98-99.

45 Kramer 2004: 207.

46 Kramer 2004: 217 (quoting F. D. Roosevelt).

47 Kramer 2004: 168, 185.

48 Kramer 2004: 164.

49 Kramer 2004: 132.

50 Kramer 2004: 228.

51 Kramer 2004: 248.

52 Tushnet 2005; 2015.

53 Tushnet 2013a.

54 Tushnet 2015.

55 Donelly 2012.

56 Tomkins 2005.

57 Bellamy 2007: 260.

58 Bellamy 2007: 9.

59 Bellamy 2007: vii.

60 Bellamy 2007: vii.

61 Bellamy 2007: 145.

62 Bellamy 2007: 262-3.

63 Tushnet 2011: 587 fn. 20; Tushnet 2013a: 8.

64 Tushnet 2013b.

65 Bellamy 2019.

66 Tomkins 2013: 2275.

67 Loughlin 2019: 12.

68 Goldoni 2012.

69 Tushnet 2015: 8; Tushnet 2013: 2250.

70 Blokker 2019b: 535-6.

71 Blokker 2019b: 535-6. Other terms are also used, such as liberal legalism.

72 Ginsburg, Huq & Versteeg 2018: 239-40.

73 Tushnet 2016.

74 Tushnet 2021.

75 Liberal constitutionalism in that narrow sense tends to overemphasize the limiting aspect of constitutionalism, while downplaying its enabling aspect; see Scott 2013.

76 See Post & Siegel 2009.

77 Scheppele 2019.

78 Which, however, need not be identified with modern representative democracy as we currently know it. As Hélène Landemore has recently shown, alternative understandings of liberal democracy are not only thinkable but also feasible. Indeed, her notion of “open democracy” with its emphasis on popular rule is closely related to democratic constitutionalism (Landemore 2020).

79 Walker 2019: 519.

80 See Bellamy 2007: ch. 6 on “the democratic constitution.”

81 See supra fn. 8.

82 Bugarič 2019b; Halmai 2019; Scheppele 2019.

83 Goldoni & McCorkindale 2019.

84 Gee 2019; Schmidt 2011.

85 The Unger quote appears in both Kramer 2004: 241-242, and Bellamy 2007: 1-2, 209.

86 A familiar counter-critique, most forcefully articulated by David Dyzenhaus, is that by questioning liberal constitutionalism, academics on the left undermine law’s normativity and hence seem to embrace a Schmittian notion of “the political” (Dyzenhaus 2004). However, as both Tushnet and Kramer have shown (supra, section 2), popular and political constitutionalism is all about political actors generating constitutional meaning, hence consciously acting constitutionally, and thus not pure decisionism.

87 The adjective “ordinary” (politics, citizens, law, legislation etc.) appears 55 times in Tushnet 1999; 121 times in Kramer 2004; and 35 times in Bellamy 2007.

88 Law 3900/2010.

89 Stavrakakis & Katsambekis 2014.

90 Katsambekis 2019; Kioupkiolis & Katsambekis 2020.

91 See Christopoulos 2017.

92 Law 3838/2010.

93 Council of State judgment 460/2013.

94 Law 4332/2015.

95 Katsambekis 2019; Markou 2017.

96 See Kaidatzis 2021.

97 Laws 4051/2012 and 4093/2012.

98 Council of State judgment 2287/2015.

99 In October 2014, the Council of State (judgment 3410/2014) found that the pension cuts were not unconstitutional but referred the case to the plenary session.

100 Ministerial decision 143575/2016.

101 Special religious education is offered in some parts of Greece for pupils of the Muslim minority and the Jewish communities.

102 Council of State judgment 660/2018.

103 Eventually, ministerial decision 101470/2017 was also annulled in October 2019 (Council of State judgment 1749/2019), when SYRIZA was no longer in government.

104 For both assumptions, see Yowell 2018.

105 Kaidatzis 2021.

106 Tushnet 2015: 7-8.

107 See Tushnet 1999: 124, 127.

108 Admittedly, there is a thin line between refusing to enforce a judgment on constitutional grounds and just plainly ignoring it. The Greek government’s stance was constitutionalist because it was informed by an alternative constitutional vision.

109 This agenda has also been manifested in laws 4356/2015 recognizing civil partnership for same-sex couples, 4491/2017 recognizing the right to change gender identity, and 4538/2018 allowing same-sex couples to foster children.

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References

Electronic reference

Akritas Kaidatzis, “Progressive populism and democratic constitutionalism”Revus [Online], 47 | 2022, Online since 22 March 2022, connection on 26 May 2022. URL: http://journals.openedition.org/revus/8068; DOI: https://doi.org/10.4000/revus.8068

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About the author

Akritas Kaidatzis

Assistant professor of Constitutional Law, Law School, Aristotle University of Thessaloniki (Greece).

Address: Akritas Kaidatzis – Kapsali 7 – 10674 Athens – Greece

E-mail: akritas [at] law.auth.gr

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