I•CON (2019), Vol. 17 No. 2, 535–553	doi:10.1093/icon/moz028
© The Author(s) 2019. Oxford University Press and New York University School of Law.
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Populism as a constitutional
project
Paul Blokker*,
The engagement of conservative, populist governments with constitutional reform and
constitution-making is perceived as a significant threat to the rule of law and democracy
within the European Union. Constitutionalists often assume a relation of mutual exclusion
between populism and constitutionalism. In contrast, I argue that while populism ought to
be understood as a rejection of liberal constitutionalism, it equally constitutes a competing
political force regarding the definition of constitutional democracy. The article first discusses
populist constitutionalism in the context of the two, main modern constitutional traditions:
the modernist and the revolutionary ones. Second, I discuss the populist critique of liberal
constitutionalism, with a central focus on the recent cases of right-wing populism in power
in East-Central Europe. Four dimensions are prominent: (i) popular sovereignty as the key
justificatory claim of populism; (ii) majority rule as the main populist mode of government;
(iii) instrumentalism as the legal–practical approach of populists; and (iv) legal resentment
as the populists’ main attitude toward public law. In conclusion, I argue that while the populist
critique of liberal constitutionalism provides significant insights into structural problems
of liberal democracy, populist constitutionalism ultimately fails to live up to its own democratic
promise.
1. Introduction
A key, but much neglected, instrument of the populist political program is the constitution.
The argument in this article is that populist approaches to constitutionalism and
theruleof lawneedtobeunderstood—atleastinpart—intheirdistinctiveengagement
with legal or liberal constitutionalism. Populists share with other approaches critical
to liberalism a number of points of critique to liberal understandings of constitutionalism
and the rule of law. Populists criticize liberalism’s tendency to depoliticization,
*	 Associate Professor, University of Bologna/research fellow, Charles University in Prague. E-mail: paulus.
blokker@unibo.it. The author acknowledges funding for the research project Transnational populism
and European democracy (TRAPpED), of the Czech Science Foundation (Grantová agentura České republiky)
(Standard Project 18-25924S) as well as funding for the RECONNECT project, from the European
Union’s Horizon 2020 research and innovation programme under grant agreement No. 770142.
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536 I•CON 17 (2019), 535–553
and to distancing and potentially alienating citizens from the institutions. Populists
further claim that an emphasis on legal rationality, the neutrality of the state, and formal–legal
proceduralism tends to weaken the polity, due to its lacking potentiality in
terms of symbolic, sentimental, and collective engagement. Populist constitutionalism
endorses, in this, a program that promises to reduce the distance between ordinary
citizens and the institutions. Populists want to directly link the people to the institutions,
and to reenchant democracy, to make it meaningful to its citizens.
An important thrust in populist constitutionalism is the claim to directly represent
the people and to overcome the significant constraints to popular rule that they
observe in liberal or legal constitutionalism—constraints that are inter alia related
to the entrenchment of norms, judicial independence, and the closed nature of the
legal system. But does its claim to unconstrained popular rule make populism a democratic
project? Similar to observations made by Nadia Urbinati,1
I argue that populist
constitutionalism draws on the principles of popular sovereignty and majority rule,
central to modern, constitutional democracy. Populist constitutionalism could then be
mistaken for a democratic project,2
because of its alleged endorsement of popular rule,
but my argument in the article is that populism has to be qualified differently. While
populism draws on democratic principles, by drawing extreme, one-sided conclusions,
it violates key dimensions of democratic constitutionalism, such as those of pluralism,
inclusiveness, and actual civic participation in constitutionalism.
The article explicitly focuses on the European context, and in particular on the
recent cases of conservative populism in power in East-Central Europe, notably in
Hungary and Poland, from which it will draw a number of examples. First, I will situate
the populist approach to constitutionalism in relation to two main constitutional
traditions in modern times, which I will call the modernist and the revolutionary traditions.
I will emphasize that while populism can be situated within a modern democratic
tradition of constitutionalism, it produces a distorted, one-sided version, which
leads to an undoing of its democratic potential and pushes the populist project toward
democratic dictatorship, that is, a dictatorship in the name of people. Second, in a
more detailed fashion, I will engage in an analysis of the critique populist constitutionalism
raises against liberal or legal constitutionalism. I focus on four prominent
dimensions of the populist critique on liberalism: (i) popular sovereignty as the key
justificatory claim of populism; (ii) majority rule as the main mode of government as
identified by populists; (iii) instrumentalism as the predominant approach of populists
in engaging with public law; and (iv) legal resentment as the populists’ main attitude
toward public law. In conclusion, I argue that while the multifaceted populist critique
of liberal constitutionalism and the rule of law provide us with important insights
regarding the latter’s inconsistencies and failures, populist constitutionalism clearly
fails to live up to its own democratic promise.
1
	 Nadia Urbinati, Populism and the Principle of Majority, in The Oxford Handbook on Populism 571 (Cristóbal
Rovira Kaltwasser et al. eds., 2017).
2
	 This is clearly the thrust in Laclau’s approach. See Ernesto Laclau, On Populist Reason (2005).
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Populism as a constitutional project    537
2.  Contrasting constitutional imaginaries
Populism ought to be understood as both a rejection of liberal constitutionalism and a
political force of competition regarding the meaning, justification, and realization of
constitutional democracy.3
I argue that while populism, in its different guises,4
tends
to consist of a rejection of what I will call here legal or liberal constitutionalism, it has
a claim to a different understanding, which purports to more intensely realize basic
ingredients of democracy, in particular popular sovereignty and majority rule.5
My suggestion
is that in order to make the populist position toward liberal constitutionalism
clearer, one needs to situate it in relation to the two main constitutional imaginaries
in modernity—what I will call here (following, but also differing somewhat from,
other scholars’ accounts) the modernist imaginary and the democratic imaginary.
The argument here is that while populist constitutionalism raises important critiques
regarding legal constitutionalism, and in this approximates a radical, democratic
understanding, its alternative take on constitutionalism undermines democracy and
in particular the idea of the constitution as a vehicle of popular sovereignty.
In modernity, two main constitutional imaginaries and related mindsets can be
identified.6
As I have suggested elsewhere,7
these two imaginaries may be called the
modernist constitutional imaginary (which has largely prevailed, even if in different
guises, since the end of the eighteenth century) and the, much less solidly institutionalized,
democratic constitutional imaginary.8
The imaginaries are understood here as
3
	 See Urbinati, supra note 1.
4
	 As mentioned, here I  will predominantly focus on the recent cases of populist constitutionalism in
East-Central Europe, which tend to be of a right-wing, conservative nature. A more complete, historical
discussion would need to take due account of cases in Latin America, as well as left-wing populism
in general (I have made some attempts to do so elsewhere, Paul Blokker, Populist Constitutionalism, in
Routledge International Handbook of Global Populism 113 (Carlos de la Torre ed., 2018)). Both left- and
right-wing populism tend to deny a strong separation of politics and law and endorse a stronger link
between constitutions and the people. And while arguably left-wing manifestations of populism (as in
Latin America) have shown a more direct engagement with genuinely participatory projects of constitutionalism
(in the form of, e.g., constituent assemblies), both forms of populism tend to suffer from an
exclusionary tendency, which results from the quest for an authentic people, and in practice risk sliding
into either authoritarian or “leaderist”-plebiscitarian modes, ultimately denying their democratic thrust.
5
	 The thrust of my argument is not unlike that of Jan-Werner Müller in claiming that populists are not
against institutions per se but, rather, an attempt to institutionalize their own populist political program.
Cf. Jan-Werner Müller, Populism and Constitutionalism, in The Oxford Handbook of Populism 590 (Cristóbal
Rovira Kaltwasser et al. eds., 2018). I believe I differ from Müller in my acknowledgement of structural
deficiencies in liberal constitutionalism, which in a distinct manner are taken up by populists.
6
	 Paul Blokker, The Imaginary Constitution of Constitutions, 3(1) Social Imaginaries 167 (2017); Hauke
Brunkhorst, Critical Theory of Legal Revolutions: Evolutionary Perspectives (2014); Martti Koskenniemi,
Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization,
8(1) Theoretical Inquiries in Law 9 (2007); Christoph Möllers, Pouvoir Constituant—Constitution—
Constitutionalisation, in Principles of European Constitutional Law (Jürgen Bast & Armin von Bogdandy eds.,
2010). Brunkhorst, building on Koskenniemi’s work, makes a similar distinction between “Kantian” and
“managerial” “constitutional mindsets.”
7
	 See Blokker, supra note 6.
8
	 Cf. Johann P. Arnason, The Theory of Modernity and the Problematic of Democracy, 26(1) Thesis Eleven 20,
39 (1990).
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538 I•CON 17 (2019), 535–553
historically predominant constellations of meaning that—in a variety of ways—have
instituted the indeterminate imaginary significations of mastery and autonomy in
distinctive constitutional orders.9
Rational mastery refers to the distinctively modern
idea of the social world as an object of control, whereas autonomy entails the equally
modern idea of self-constitution and self-government. What is significant is that the
two constitutional imaginaries invoke a contrasting understanding of the modern
polity but remain partial visions, emphasizing either preservation or innovation, and
are of equal significance for the viability and legitimacy of modern constitutional orders
in a democratic sense.10
The modernist imaginary can be related to a view of constitutionalism as the
Enlightenment “belief that political institutions obtain legitimacy if they enshrine
constitutional laws translating abstract notions of justice and personal dignity into
legal and normative constraints for the use of public and private power.”11
The modernist
imaginary understands constitutions as devices of order and stability that tame
the human propensity to violence and unreason.12
Rather than promoting a radical
break with the preceding societal order, the modernist imaginary endorses the idea
of a gradual limitation of political power by legal means, to create a system of limitations
to sovereign power.13
The idea tends to be an evolutionary one, in the sense of
a continuous constitutionalization of the polity, and it displays a distinctive emphasis
on the rule of law, juridification, and the orderly limitation of power. Modernist constitutionalism
is hence not necessarily about democracy, understood as popular selfrule
and empowerment.14
It is rather about the preservation, stabilization, and careful
management of an existing order, by means of a closed, independently operating legal
system.15
The democratic imaginary finds (theoretical) reflection in the thinking of scholars
such as Hannah Arendt, Sheldon Wolin, Cornelius Castoriadis, and, more recently,
Hauke Brunkhorst. It can equally be found in reflections more closely related to (constitutional)
practice, such as those of Thomas Jefferson, as well as in forms of dissent,
as in the anti-foundationalist observations of Vaclav Havel, or in constitutional “antipolitics,”
as for instance has emerged in recent years in Iceland.16
The democratic constitutional
imaginary understands constitutions as creative devices that push forward
human liberty. The emphasis in the revolutionary understanding is the foundation
of an entirely new order on the basis of emancipatory principles, such as equality,
9
	 For the notion of social imaginary significations, see Cornelius Castoriadis, The Imaginary Institution of
Society (1987).
10
	 See Möllers, supra note 6.
11
	 Chris Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical‐Sociological
Perspective (2011).
12
	 Cf. Koskenniemi, supra note 6; Brunkhorst, supra note 6.
13
	 See Möllers, supra note 6, at 174.
14
	 See Möllers, supra note 6, at 176.
15
	 See Brunkhorst, supra note 6.
16
	 Baldvin Bergsson & Paul Blokker, The Constitutional Experiment in Iceland, in Verfassunggebung in konsolidierten
Demokratien: Neubeginn oder Verfall eines Systems? 154 (Kalman Pocza ed., 2013); Nadia Urbinati,
Democracy Disfigured (2014).
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Populism as a constitutional project    539
freedom, and self-rule. The constitutional order is understood as demanding justification
in the exercise of public power,17
linking public power to intra-societal legitimation.
The democratic imaginary is closely related to the idea of a democratic pouvoir
constituant, which perceives the constitution as a “founding act of the people.”18
The
democratic imaginary finds its most distinctive expression in the idea of self-determination
and self-government.19
In Brunkhorst’s “Kantian constitutional mindset,” this
means that it is not just about “the rule of law—but the emancipation from any law that
is not the law to which we have given our consent.”20
But how to fit the populist engagement with constitutionalism into the dual constitutional
traditions of modernity? Populist constitutionalism seems a rejection of
the modern, legal version and some kind of variant of democratic constitutionalism.
The relation between populism and constitutionalism might be understood by reference
to predominantly the democratic imaginary, even if with important differences
and distortions, as populism strongly rejects the modernist, rule of law tradition and
prioritizes popular sovereignty.21
Populism rejects the emphasis on the limitation of
political power through legal norms and the subjection of power to higher norms as
in legal constitutionalism, while it promotes a constitutional order that puts popular
sovereignty and constituent power up front. It denounces the rule of law and the
constitutional state as vehicles that promote the interests of minorities (elites) against
the well-being of the people and claims to build a new constitutional order that will
promote the common good against partial interests.
But does populism’s emphasis on popular sovereignty, the people, and the common
good put populism squarely in the democratic constitutional camp? There are undeniable
indications that it does not. Democratic constitutionalism rejects the preceding
order, or the existing order or status quo it agitates against, and wants to create a
polity anew, eschewing any of the existing traditions. Democratic constitutionalism
puts, in this, the rights of the individual and the idea of equality center stage, against
the corrupting and unequal implications of established traditions based on status and
privilege.22
In this, democratic constitutionalism targets legal constitutionalism as
potentially leading to inequality, as in the lack of possibilities for popular engagement
with constitutional politics and norms, and in the emphasis on elitist, higher public
reason.23
17
	 See Möllers, supra note 6, at 171.
18
	 See id.
19
	 See Brunkhorst, supra note 6, at 46–47.
20
	 See id. at 47 (emphasis in the original).
21
	 Luigi Corrias, Populism in a Constitutional Key: Constituent Power, Popular Sovereignty and Constitutional
Identity, 12(1) Eur. Const. L. Rev. 6 (2016). As Neil Walker states in his contribution to this Symposium,
Populism and Constitutional Tension, 17(2) Int’l J. Const. L. 518 (2019), “the development of populism as
an important strain of our political and constitutional imaginary and the analyst’s preoccupation with
this trend have to do with the relationship of populism to an underlying tension within the long tradition
of modern constitutionalism.”
22
	 See Möllers, supra note 6, at 172.
23
	 Joel Colón-Ríos, Weak Constitutionalism: Democratic legitimacy and the Question of Constituent Power
(2012); James Tully, Public philosophy in a New Key (2008).
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540 I•CON 17 (2019), 535–553
Populist constitutionalism shares this thrust toward denouncing elite rule as detrimental
to the common good and as potentially favoring partial interests. It equally
denounces the professed neutrality and rationality of the law (as we will see in Section
3.4) as potentially resulting in inequality and exclusion. But where the thrust in
democratic constitutionalism is the widening and deepening of possibilities of de facto
citizen engagement with constitutional politics and norms, in populist constitutionalism
the actual engagement of (different groups of) citizens in society is substituted
for by the idea of a united people, represented by the populist leader. The main culprit
is identified in corrupt elite rule, which simply needs to be replaced by government for
the people, but not necessarily by the people.
Populism therefore, at least in part, criticizes legal constitutionalism on similar
grounds as democratic constitutionalism, but its alternative constitutional solution,
“counter-constitution,”24
or “constitutional counter-revolution,”25
is highly different
from the democratic and democratizing idea. This becomes clear in at least some of
the “really existing” examples of populist constitutionalism, such as in Poland and
Hungary. Populist constitutionalism rejects the existing order because of its inequalities
and injustices, as in democratic constitutionalism, but it does so with the aim to
restore (an ideal of) a preceding, historical order. But one can equally identify a messianic,
redemptive dimension, which is future-oriented in that it aims at realizing a pure,
non-corrupted polity in the future (in the Polish case, e.g., in the form of a ‘Fourth
Republic’). Populism understands liberal democracy and the rule of law as a historical
interruption and aberration. It rejects the idea of the legal–constitutional order
because, according to populists, it produces or favors inequalities (e.g. between the
haves and have-nots, between cosmopolitans and locals, or between foreigners and
nationals), as well as, more important, because it leads to the erosion of the historical
nation. The hierarchy of the legal–constitutional order is not to be replaced by an
inclusive, more universalistic order but rather by a return to, or realization of, the past,
that is, of a traditional order, based on “natural” hierarchies related to ethnicity, family,
and tradition.
3.  Four populist critiques of liberal constitutionalism
To explore the distinctive nature of populist constitutionalism in a more detailed
fashion, I propose to “unpack” the populist constitutional approach by analyzing four
of its critical components. These components can be understood as distinctive parts
of the populist critique on liberal or legal constitutionalism. First, populists emphasize
the people and popular sovereignty. This reference to the people provides the main
24
	 Kim Lane Scheppele, Counter-constitutions: Narrating the Nation in Post-Soviet Hungary, Paper presented
at colloquium of the political science department, George Washington University, Washington,
DC, April 2, 2004; Kim Lane Scheppele, The Social Lives of Constitutions, in Sociological Constitutionalism
35 (Paul Blokker & Chris Thornhill eds., 2017).
25
	 Gábor Halmai, The Rise and Fall of Constitutionalism in Hungary, in Constitutional Acceleration within the
European Union and Beyond 215 (Paul Blokker ed., 2017).
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Populism as a constitutional project    541
normative justification for the populist constitutional program. Second, the populist
project is based on an extreme form of majoritarianism, which is the core of the populist
mode of government, or the way in which populists imagine their project politically.
Third, the populists’ practical approach to the law is based on instrumentalism, which
mobilizes the law in the name of a collectivist project. Fourth, the populist attitude toward
the law, or its main prescriptive and evaluative judgments of the law, consists of
a critical, emotional stance, or what I call legal resentment.
3.1.  The people and popular sovereignty
The main justification for the populist constitutional project is the claim to popular
sovereignty. For populists, “their common feature is a political appeal to the people, and
a claim to legitimacy that rests on the democratic ideology of popular sovereignty and
majority rule.”26
Such a perception of popular sovereignty is, for instance, articulated
in an extensive expert opinion, written by Polish constitutionalists close to the populist
government of the Law and Justice Party (PiS). The experts argue in favor of an idea
of Polish democracy in which the “nation as a political community of all citizens that
constitute the state is the primary category,” against a view which is portrayed as primarily
legalistic, in which “the attribute of sovereignty is transferred to the law itself,
in particular to the most important of normative acts—the constitution.”27
Populists further claim that liberal, representative systems with strong judicial components
tend to turn popular sovereignty into an unrealized fiction. In the “White
Paper on the Reform of the Polish Judiciary,” for instance, issued as a response to the
European Commission’s initiation of the article 7 procedure in late 2017, PiS argues
that judicial reforms are necessary to counter an “imbalance between powers.” PiS
states that a “related problem is the peculiar bureaucratic corporate culture which has
emerged in the Polish administration of justice. Citizens view the courts as a closed
community that is very difficult to access, and consider procedures to be complex and
incomprehensible. There is a general sense that the courts are dominated by the ‘cult
of formalism’; in other words, it is more important that a judgement be justified on
formal grounds rather than for it to be actually fair.” “[E]xternal agents” are unable to
influence the judicial institutions, while “citizens were deprived of the ability to exert
such influence either.”28
Populists call for making popular sovereignty a reality, or better, the pinnacle of a
new constitutional order, which hinges on the creation of a more direct relation between
the people and the constitutional complex of norms and values. Indeed, the title
of a debate organized by PiS in August 2017 was “A constitution for the people, not
26
	 Margaret Canovan, Taking Politics to the People: Populism as the Ideology of Democracy, in Democracies and the
populist challenge 25, 25 (Yves Mény & Yves Surel eds., 2002).
27
	 Jan Majchrowski et al., Report of theTeam of Experts on the Issues Related to the ConstitutionalTribunal
of 15 July 2016, at 3, available at http://www.sejm.gov.pl/media8.nsf/files/ASEA-ADRKC8/%24File/
Report%20of%20the%20Team%20of%20Experts%20on%20the%20Issues%20Related%20to%20
the%20Constitutional%20Tribunal.pdf.
28
	 White Paper on the Reform of the Polish Judiciary 19 (2018).
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542 I•CON 17 (2019), 535–553
for the elites.” On various occasions, President Duda has articulated this idea, for instance,
by stating that “[i]t is time for a serious debate on the constitution,” “[n]ot only
among elites and politicians, but among the Polish people,” and “Poles and Poland
have earned a new constitution.”29
The notion of the people as promoted by populists is in itself, however, highly problematic
and in tension with an understanding of democracy as an open and inclusive
political regime. The latter understanding of democracy is based on forms of immanent
legitimacy, that is, a legitimacy grounded in society itself. Popular sovereignty
according to this understanding means that every member of a political community
is able to co-decide the laws of that very same community. The “people” in this democratic
narrative indicates a community of highly diverse individuals and social groups
that actively engage with democratic politics precisely because the laws and final ends
of that community are never transparent and need to be deliberated upon and ultimately
decided upon every time, in a democratic manner, meaning including as many
voices of society as possible and feasible.
The populist understanding of the people is of a highly different kind and tends to
subject individual differences to a collective subject, which finds its origins outside (the
members of) contemporary society strictly speaking and is in this sense pre-political
(as in tradition, culture, or identity). The people is defined outside of an open, rational
discussion over membership and the finalité of a political community, and rather
takes on a closed, imposed form. Andrew Arato’s work is highly pertinent here, in that
Arato has rightly pointed out the theological nature of many key political concepts,30
including that of the people. In contrast to the descriptive concept of population or of
all members of society, the notion of the people indicates a transcendental meaning of
the concept, which has become closed, enchanted, and metaphysical.
This collectivist, historical view comes through in the 2018 State of the Nation
address of the leader of the Hungarian Fidesz party, Viktor Orbán: “I believe that we
Hungarians have a future if we remain Hungarian: if we cultivate the Hungarian
language, defend our Christian and Hungarian culture, and preserve independence
and Hungarian freedom.” And, “Homeland is an anchor needed by everyone in their
hearts. And, in spite of attacks and mockery, patriots deserve recognition for again
and again lowering this anchor: for telling us to our face, time and again, that the
homeland comes before all else.”31
Populists turn to a political theology of the people
for reasons of both legitimacy and the rejection of an indeterminate, pluralistic, and
empirical understanding of modern society. Populists claim to promote the good of
the “ordinary people,” which is, however, not reconstructed in any open-ended way
as, for instance, all the members of a particular society but rather as a distinctive,
collective subject in its own right, identified by a common suffering, set of traditions,
and destiny.
29
	 See http://www.dw.com/en/polands-president-calls-for-constitutional-referendum/a-38725200.
30
	 Andrew Arato, Post Sovereign Constitutional Making: Learning and Legitimacy 269–270 (2016).
31
	 See http://www.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/viktor-orban-s-
state-of-the-nation-address.
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Populism as a constitutional project    543
The unity and undivided nature of the people become in this of primary importance,
while any pluralism or fragmentation is understood as a threat to the populist
mission. The relation between the people and the populist leader needs to be in full
harmony, as it is the latter’s task to promote the people’s real and indivisible will.32
In
this, the leader and his populist party have the task to “regenerate” the people, as the
“empirical people” does not (yet) coincide with the “ideal people,” the chosen ones
or those that are to be “saved.” Arato likens this to the transposition of the idea of
the king’s two bodies, which in modern times has shifted from the monarch to the
people.33
It is the populist leader—as a “church-like” agency—who ideally represents
the empirical people and the leader’s mission is to lead it to become a purified “ideal
people.” This becomes evident in populist argumentation. As Orbán has formulated it:
[W]hat is happening today in Hungary can be interpreted as an attempt of the respective political
leadership to harmonize relationship between the interests and achievement of individuals—that
needs to be acknowledged—with interests and achievements of the community, and the nation.The
Hungarian nation is not simply a group of individuals but a community that must be organized,
reinforced and in fact constructed. And so in this sense the new State that we are constructing in
Hungary is an illiberal state, a non-liberal state. It does not deny foundational values of liberalism,
as freedom, etc. But it does not make this ideology a central element of state organization,
but applies a specific, national, particular approach in its stead.34
The idea of “regeneration” of, in this case, the Hungarian people can also be observed
from the preamble or “avowal” of the new Hungarian Fundamental Law that was
adopted in 2011:
We hold that after the decades of the twentieth century which led to a state of moral decay, we
have an abiding need for spiritual and intellectual renewal. We trust in a jointly-shaped future
and the commitment of younger generations. We believe that our children and grandchildren
will make Hungary great again with their talent, persistence and moral strength.35
3.2. Majoritarianism
Populists imagine political power in a distinctive manner, that is, as the expression
of the will of a cohesive majority. Political government hence means to govern in the
name of the majority. Populism in power consists of a political project that wants to
radically change the rules of the game, to correct alleged past wrongdoings to the
people and to realize a more intimate relation between political institutions and larger
society (which de facto means an attempt to fuse the populist party and state institutions).
The liberal understanding of parliamentary politics and representation is
rejected. The populist claim is that it leads to a fragmentation of society and a loss
of social unity. In this, populists approach the majority as a durable and pre-political
32
	 See Arato, supra note 30, at 272–273.
33
	 See id. at 272.
34
	 See http://budapestbeacon.com/public-policy/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014
(emphasis added).
35
	 Fundamental Law of Hungary of 2012, available at http://www.kormany.hu/download/4/c3/30000/
THE%20FUNDAMENTAL%20LAW%20OF%20HUNGARY.pdf.
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544 I•CON 17 (2019), 535–553
entity, and equate it with a material, social unity, which in right-wing, conservative
populism takes the form of the nation.36
This is in sharp contrast to the liberal understanding
of the majority in procedural terms. In liberalism, the majority is as a constructed
and always again reconstructed set of political forces, which represents social
interests. Populists deny conflict within society or they understand conflict as an inherently
problematic phenomenon, rather than as a legitimate expression of different
viewpoints and interests. Populists such as Orbán and Kaczyński refer to “enemies,”
“those that oppose us” and do not support “our political project,” “good” and “bad”
members of society, and often equate enemies with international, liberal forces (the
“George Soros network,” the “international bureaucrats,” “pro-migrant NGOs,” or
“pseudo-civil society organisations”37
).
Democracy is not to institutionalize conflict but rather to unambiguously promote
the national interest. Orbán has criticized liberal democracy for promoting partial
(foreign) interests rather than the national interest and the common good:
[I]n the past twenty years the established Hungarian liberal democracy could not achieve a
number of objectives. I made a short list of what it was not capable of. Liberal democracy was
not capable of openly declaring, or even obliging, governments with constitutional power to
declare that they should serve national interests. Moreover, it even questioned the existence
of national interests. It did not oblige subsequent governments to recognize that Hungarian
diaspora around the world belongs to our nation and to try and make this sense of belonging
stronger with their work. Liberal democracy, the liberal Hungarian state did not protect public
wealth. . . . And—and here I mostly mean the system of foreign exchange loans—it failed to
protect families from bonded labor.
Therefore, Orbán proposes a different type of democracy, an illiberal democracy or
a “workfare state,” which prioritizes the national interest, which, in a wholly nonsociological
manner, is assumed to be a homogeneous and self-evident interest, that
is, the interest of ethnic Hungarians.
The populist, pars-pro-toto understanding of the majority—not as politically or procedurally
constructed but rather as socially given—results in a denial of the distinction
between ordinary politics (in which conflicts between different social forces play
out) and foundational or constitutional politics (in which the rules of the game are
fixed). As the only subject that deserves representation is a unified people, which is
equated with the majority, there is no need for a higher law that mediates between
and integrates different social forces that compete for political power. Rather, the populist
mission becomes one of more thoroughly and extensively inscribing the people’s
standing, values, and necessities in the constitution. In this, there is a tendency to
“embed” the populist party itself into the state institutions, by means of entrenching
the political power of the populists, in the name of its promotion of the “real people,”
and against divisive forces. It should be further stressed that the constitutional project
36
	 Paul Blokker, Populist Nationalism, Anti-Europeanism, Postnationalism, and the East-West Distinction, 6
German L.J. 371 (2005).
37
	 See http://www.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/viktor-orban-s-
state-of-the-nation-address.
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Populism as a constitutional project    545
of populists is not merely about entrenching political power and changing the rules
of the game, but there is equally an attempt to mobilize the constitution around a
specific socio-political bloc.38
This harks back to Arato’s idea of the populist regeneration
of the people. In constitutional terms, it includes a cultural–symbolic reshaping
of the constitution (as in the preamble or “avowal” of the Hungarian Fundamental
Law or the preamble of the PiS draft constitution of 2010), an approach which also
comes through in the more specific, conservative redesigning of constitutional norms
and principles, as in the case of the attempt of PiS to reshape abortion laws around
the idea of the right to life or in Fidesz’s redefinition of marriage between a man and
a woman and, in general, its political program of “hard work, supporting families, retaining
national identity and preserving independence.”39
3.3. Instrumentalism
The practical approach of populists to the law is an instrumental one, which mobilizes
the law in the name of a collectivist project.40
As observed above, there is a tendency
in populist constitutionalism to collapse the distinction between ordinary and
constitutional politics. In Ackermanian terms, this means that there is a permanent
mobilization of constitutional norms and constitutional issues in daily politics. This
mobilization is not driven by popular mobilization from below but rather by populist
elite entrepreneurship from above. In the political practice of populists—in their “occupation
of the state”41
—one can detect a specific, instrumentalist approach42
to constitution-making
and constitutional revision. The populist constitutional attitude can
be understood as the result of populism’s overall negative evaluation of liberal constitutionalism,
and it manifests itself in the downplaying of the constitution’s status as
a rigid, higher law (a cornerstone of liberal or legal constitutionalism). A number of
dimensions deserve specific attention with regard to populists’ instrumental approach
38
	 Jan-Werner Müller, What Is Populism? 62 (2016).
39
	 See http://www.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/viktor-orban-s-
state-of-the-nation-address.
40
	 See also Walker, supra note 21.
41
	 See Müller, supra note 38; Urbinati, supra note 16.
42
	 The term “instrumentalism” is used here in a (pejorative) sense akin to the one expressed by the Venice
Commission, in its opinion on the fourth amendment of the Hungarian Fundamental Law. See Opinion on
the Fourth Amendment to the Fundamental Law of Hungary, CDLAD(2013)012, Strasbourg, Council of
Europe, 17 June 17, 2013, www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282013%29012e.
The Commission argued that “[f]requent constitutional amendments are a worrying sign of an
instrumental attitude towards the constitution as is the resort to the exceptional two-thirds majority in
constitution-making without a genuine effort to form a wide political consensus and without proper public
debates” (at 30).The Commission decries the frequent and non-transparent nature of reforms and the
abuse of the majority position of the government. There is also affinity with the American concept of
“legal instrumentalism,” at least when it is taken to mean that law is “seen decreasingly in terms of an
order of binding rules, and increasingly as a tool or weapon to be manipulated to achieve desired ends”
(Brian Z. Tamanaha, The Tensions Between Legal Instrumentalism and the Rule of Law, UC Berkeley,
available at https://escholarship.org/uc/item/5321r1r0). Instrumentalism refers then to different
aspects: to the frequency of legal change, to the lack of respect for oppositional forces and consensual
procedures, to the neglect of existing rules and procedures, and to a goal-oriented, political use of the law.
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546 I•CON 17 (2019), 535–553
to constitutions,43
including the frequency of constitutional action, the resulting
increase in the arbitrariness of the law, the overall drive toward extreme majoritarianism
and neglect of oppositional forces, and a certain path dependency in terms of
legal culture.
An important dimension of the populists’ instrumentalist approach is the frequency
of constitutional interventions. Populists tend to engage on a frequent basis with constitutional
revision, not least because they understand the existing order as tainted
with legacies from the past (e.g., communism), and as an order which can be at best
considered a “façade democracy.”44
Frequent intervention is hence necessary to rapidly
change the existing order and realize a “truly” sovereign and independent constitutional
state, as in the project for a Fourth Republic in Poland. The latter project
includes a frequent and enduring legal assault on the Constitutional Tribunal and the
independence of other judicial institutions by the Polish government. Another case in
point is the new Hungarian Fundamental Law, which, since its adoption in 2012, has
already been amended six times (anno 2017), while before its entering into force in
2012, and from the moment Fidesz gained its supermajority in 2010, the prior, 1989
Constitution had been amended twelve times.45
From a liberal or legal perspective, populist constitutionalism leads to a rule of
law crisis and heightens the arbitrary nature of the political regime. This means three
things: that rulers become less accountable due to the absence of institutional control
(for instance, by reducing powers of constitutional courts), lawmaking becomes
increasingly unpredictable and non-transparent for wider society (by, for instance, frequent
usage of decree laws), and it becomes more difficult for citizens to contest the
law, and to voice their concerns and interests regarding new legislation.46
The issue of arbitrariness needs, however, further investigation, as recently suggested
by Gianluigi Palombella.47
The enhanced arbitrariness of political power is a
main ingredient of the rule of law crisis, and is caused by populist politico-legal action,
but should be understood in a comprehensive analytical, rather than merely normative,
manner. If we want to get an analytical grip on populist constitutionalism, we
need to avoid a simplistic (and problematic) counterposing of non-arbitrary, wellfunctioning
rule of law systems to arbitrary, unruly populist regimes. Rather, we want
to explore the underlying assumptions and phenomena that invoke a drive toward a
politically motivated move against liberal, rule of law ideas. This means we need to,
first, scrutinize the erosion of a formalistic understanding of the law due to populist
legal action, but at the same time, and second, we need to analyze the dimensions in
the liberal understanding of the rule of law that may in some ways provoke distinctive
43
	 David Landau, Populist Constitutions, 85 U. Chi. L. Rev. 521 (2018).
44
	 Marta Bucholc & Maciej Komornik, Die PiS und das Recht. Verfassungskrise und polnische Rechtskultur,
66(1–2) Osteuropa 79 (2016).
45
	 Petra Burai et  al., Democratic Backsliding and Economic Performance. Building Unity and Support for
Democratic and Free Market Values in Central and Eastern Europe, Country Report on Hungary 9 (2017).
46
	 Martin Krygier, The Rule of Law: Pasts, Presents, and Two Possible Futures, 12 Ann. Rev. L. & Soc. Sci. 199
(2016); Gianluigi Palombella, Illiberal, Democratic and Non-Arbitrary?, 1 Hague J. on Rule of Law (2017).
47
	 See Palombella, supra note 46.
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Populism as a constitutional project    547
reactions of “re-politicizing” the polity. This means we ought to pay due attention to
the public origin of modern public law (as in the democratic imaginary) and the sociological
dimension of a local/domestic embedment of the law for reasons of legitimacy
and societal relevance.48
If the three dimensions of arbitrariness indicate the need for the rule of law as
a constraint on ruling classes, eroded by populists, a fourth dimension ought to
be considered. This fourth dimension indicates the public, societal nature of legal
regimes, as suggested by Palombella. This fourth dimension emphasizes a potential
arbitrariness of law that diverges from the “perceived normative legality constituting
the raison d’etre of the polity.”49
This latter, political idea of the law or
“droit politique” is invoked by populist forces, who justify their actions by indicating
a societal estrangement from (externally and “arbitrarily”) imposed norms and
rules.50
Instrumentalism in the form of goal-oriented constitutional action reflects
here the populist claim/justification to re-fashion legal structures in order for these
to serve the needs and values of the “real” people rather than those of abstract
foreign (economic) interests.
The frequent legal interventions of populists are for a significant part informed by
what Nadia Urbinati has called an extreme majoritarianism,51
that is, an attempt to
turn the majority into a permanent majority.The majority is not anymore mutable and
temporary, but needs, through legal interventions, to be consolidated into a durable
power basis.The populist majority government tends to take on the role of constituent
power, in a Schmittian move, in order to liberate the people from the constraints of the
liberal, rule of law regime. This form of constitutional executivism tends to be univocal,
partisan, and monistic, and therefore to violate any idea of inclusive, broad-based
constituent power.52
A  particularly manifest populist form of legal–instrumental
action regards judicial independence and judicial review, as independent judges and
courts are understood as an illegitimate constraint on majority rule, and hence legal
means are to be employed to counter this situation. This critique can be understood
as a populist version of the theoretical critique raised against legal constitutionalism
in the form of a “political constitutionalism,” as endorsed, for instance, by Jeremy
Waldron and Richard Bellamy, inter alia, in its questioning of the political engagement
48
	 Paul Blokker, EU Democratic Oversight and Domestic Deviation from the Rule of Law: Sociological Reflections, in
Reinforcing the Rule of Law Oversight in the European Union (Carlos Closa & Dimitry Kochenov eds., 2016).
49
	 See Palombella, supra note 46.
50
	 As Palombella has forcefully argued, to combat the decline of the rule of law in countries such as
Hungary and Poland by external legal censorship, from for instance the part of the EU institutions, would
not necessarily produce positive results and might even increase the weakness of the rule of law in cases
of increasingly illiberal democracies. The societal dimension invoked by populists, in terms of a political,
fundamental, or constituent dimension to the law regarding the “constitutive principles underpinning
the right ordering of the state,” indicates the limitations of a transfer of universalistic rules and norms
into local contexts. See Palombella, supra note 46.
51
	 See Urbinati, supra note 1.
52
	 William E. Scheuerman, Constitutionalism in an Age of Speed, in 19 Const. Commentary 353, 383 (2002).
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548 I•CON 17 (2019), 535–553
of unaccountable constitutional courts and the status of judicial review.53
This comes,
for instance, through in the Polish constitutional crisis, in which the ruling party is
guided by the idea that it is not the Tribunal that ought to have the final say on the
Constitution’s interpretation, but parliament or the government, which has been
directly chosen by the majority. As stated by (the recently deceased) Lech Morawski,
a law professor and one of the contested, new judges of the Polish Tribunal, installed
by the PiS government: “[t]he legislative activity of the [Constitutional Tribunal] significantly
distorts the principle of separation and balance of powers, since in practice
it means that the supreme legislative power is exercised not by the parliament and
the government but by the constitutional court.”54
The populist project to dismantle
judicial independence and judicial review consists then of a “wholesale constitutional
revolution cloaked as a statutory revision and piecemeal tinkering”55
(as PiS does not
have, paradoxically, a sufficiently large majority to change the constitution).
As a final point, some have argued that a certain path dependency in terms of legal
culture can be observed in the populist approach to the law in East-Central Europe.
Bucholc and Komornik speak, for instance, of a certain “legal nihilism” and an instrumental
attitude toward the law manifested by political elites during communist times,
which may be reappearing in current populist attitudes.56
One might detect some
affinity between constitutional instrumentalism in the post-communist democracies
and the so-called theory of constitutional instrumentalism, which has been prominent
in the analysis of socialist or communist constitutions. According to Sidel, this
theory was both a descriptive lens used by scholars observing socialist constitutional
processes in Soviet societies as much as it was a perception amongst components of
Communist Parties themselves.57
Constitutional instrumentalism emphasized the
control of the Party over the Constitution and its manipulation of the Constitution
as a mobilizational device, to be revised when necessary to serve political purposes.58
3.4.  Legal resentment
I have already established in a number of ways that the relation between populism and
(the rule of) law is a strained one. But how can we define the populist attitude to the
law, that is, what are its prescriptive and evaluative judgments of the law? I suggest
53
	 Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2005); Richard Bellamy,
Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (2007). Indeed, as
argued by Tamas Gyorfy, it was after Fidesz came to power in Hungary in 2010 that Hungarian rightwing
intellectuals discovered the theory of political constitutionalism, Tamas Gyorfi, Against the New
Constitutionalism 26 (2016). Further, see Agnieszka Bień-Kacała et al. (eds.), Liberal Constitutionalism—
Between Individual and Collective Interests (2017).
54
	 Lech Morawski, A Critical Response, VerfBlog (June 3, 2017), http://verfassungsblog.de/a-criticalresponse/,
DOI: https://dx.doi.org/10.17176/20170603-165621.
55
	 Tomasz Koncewicz, The “Emergency Constitutional Review” and Polish Constitutional Crisis. Of Constitutional
Self-Defense and Judicial Empowerment, 2(1) Polish L. Rev. 73, 77 (2016).
56
	 See Bucholc & Komornik, supra note 44, at 89; Robert Brier, The Roots of the “Fourth Republic” Solidarity’s
Cultural Legacy to Polish Politics, 23(1) East Eur. Pol. & Societies 63 (2009).
57
	 Mark Sidel, Law and Society in Vietnam: The Transition from Socialism in Comparative Perspective (2008).
58
	 See id. at 18–19.
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Populism as a constitutional project    549
the populist attitude is a critical attitude that could be labeled legal skepticism or “legal
resentment,” a critical, emotional stance toward liberal and legal constitutionalism,
and the latter’s alleged juridification, depoliticization, and rationalization of society.59
In important ways, this attitude might be related to a Schmittian understanding of the
constitution, and to Carl Schmitt’s critique of liberal constitutionalism and its conception
of the rule of law.60
Legal resentment, so I argue, is a crucial dimension of the populist constitutional
program, and comes forth out of a distinctive populist reading of liberal constitutionalism.
The populist approach regards liberal constitutionalism as both a mindset and
a practice. The latter could be aptly described as the post-World War II “default design
choice for political systems across Europe and North America,” in the form of a constitutionalism
that “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.”61
In this, the populist criticisms are not
unlike those that have emerged in academic debates on “new constitutionalism” and
judicial review. Populists tend to be critical about the strong and independent nature
of apex courts, the role and form of judicial review, and the extensive and entrenched
nature of individual rights.
Different populists share a critical, resentful attitude toward the liberal understanding
of the rule of law. I suggest that a number of dimensions clarify populists’
critical attitude toward the liberal understanding of the law. A first dimension is a critical
evaluation of the idea of the law as non-political and neutral. Populists—much like
Carl Schmitt—criticize what is perceived as a strong separation between law, on the
one hand, and politics and morality on the other, in liberal constitutionalism.The populist
understanding of the law denies its closed, self-sufficient, and self-referential nature,
and emphasizes the ultimately always already political nature of the law. Hence,
the law in the populist view becomes inseparable from extra-legal sources, such as
political power and the societal community, and is in this repoliticized. As such, for
populists the law always needs to be the expression of the “national interest.” This,
for instance, comes through in a somewhat “vulgar” way in which Polish populists of
the PiS party attack judges (including those on the Constitutional Tribunal) and liberal
politicians, related to the preceding government of Civic Platform, as (ab-)using
59
	 Paul Blokker, New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary,
Poland, Romania and Slovakia (2013).
60
	 Ernst-Wolfgang Böckenförde, The Concept of the Political: A  Key to Understanding Carl Schmitt’s
Constitutional Theory, 10(1) Canadian J. L. & Jurisprudence 5 (1997).
61
	 Tom Ginsburg, Aziz Z. Huq, & Mila Versteeg, The Coming Demise of Liberal Constitutionalism, 85 U. Chi.
L. Rev. 239. Populists mostly refer to some understanding of this institutionalized form of liberal constitutionalism.
As rightly stressed by one of the reviewers, in liberal constitutional theory, different positions
exist as to the relation between law and politics, and the role of morality in constitutionalism. However,
the populist critique seems to particularly engage with a more formalistic and individualistic understanding,
which it claims inter alia to marginalize or ignore collectivist, cultural traditions in the name of
individual rights protection.
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550 I•CON 17 (2019), 535–553
the rule of law to promote particular (private or group) interests.62
But there is clearly
also a deeper claim, which is that the assumption of a neutral and higher law, which
provides a depoliticized framework for politics, is dismissed. Kornel Morawiecki, the
interim speaker of the Polish lower house, the Sejm, explicated this as “[t]he good of
the nation is above the law. If the law conflicts with that good, then we’re not allowed
to treat it as something that we can’t break.”63
A second dimension is the evaluation of the locus of sovereignty in the populist
narrative. In liberal understandings of democracy, sovereignty is related to the state,
and sovereignty is located in the legal system, and ultimately in the constitution.64
In contrast, populists situate sovereignty squarely in the nation or the people, which
remains ultimately unbound by the law. Populists want to regain political sovereignty,
and in order to do so, need to overcome the restrictions and limitations that rule of
law considerations put onto political leaders. The divided sovereignty of liberalism, in
the sense of a division of powers between state institutions, is in this rejected, while a
recentralization of sovereignty is pursued, which re-invokes the religious and absolutist
understandings of power of pre-modern times. In this view, power is not emerging
from within empirical, modern, actually existing society as such, but has extra-societal,
transcendental origins in the people or the “eternal nation,” and is in turn represented
or embodied by the populist leader.
Third, populists criticize the liberal understanding of the rule of law for its emphasis
on individualism, and hence its eroding effect on unity, as an obstacle to achieving
political unity or to protect the long-term existence of the collectivity. The liberal rule
of law erodes unity, because it divides the polity (in its emphasis on political competition,
different interests to be safeguarded, and individual rights), it weakens its decision-making
powers (through a hierarchy of legal rules and constraints), and opens
the polity up to international influence (e.g., through its universalistic rationality and
design, and its disregard for local mores). Liberal individualism promotes a view of the
demos as the basis of the democratic polity, which is rejected by populists, in order to
be replaced by a collectivist view which emphasizes the belonging of the individual to
a larger community, the ethnos. The function of the law changes in this perspective
from one emphasizing constraints and rights to one underlining duties and a distinctive
cultural and sometimes religious ethos. Constraints and rights become in some
ways superfluous, as the law, as an expression of the populist rulers, is always already
promoting the best interests of those belonging to the nation. The liberal idea of the
law can, in this, be understood as an obstacle to achieve collective goals. In the Polish
context, this has been labeled “legal impossibilism,” to indicate the obstructing nature
of the liberal, legal system.65
62
	 Similar denouncements have been made by Orbán, for instance in his 2014 speech, in which he criticizes
liberal individualism as ultimately adding up to the right of the strongest, and hence as an instrument of
strong economic and political forces, rather than of the “ordinary people.”
63
	 See www.politico.eu/article/poland-constitution-crisis-kaczynski-duda/.
64
	 Celina María Bragagnolo, Legitimacy and Legality: Carl Schmitt and the Dialectic of Modernity (2011).
(unpublished Ph.D. Dissertation, State University of NewYork at Stony Brook), at 59 (on file with author).
65
	 See Bucholc & Komornik, supra note 44.
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Populism as a constitutional project    551
In sum, populists argue in Schmittian terms that the understanding of the rule of
law as a neutral, universalistic framework of the decision-making process undermines
a polity’s potential to promote the “national interest” and to thrive in international
competition (as strongly emphasized in Orbán’s illiberal democracy idea). The law
cannot in and by itself constitute the legitimacy and strong basis for a political community,
it is rather the other way around: the law needs to be the expression of the
political will of such a community. What is more, mere legality is too fragile to contribute
to the resoluteness that is necessary to deal with political conflicts and crises
that affect the collectivity.66
4.  Concluding remarks: Populism and democratic
constitutionalism
Populism, at least in part, criticizes liberal or legal constitutionalism on similar
grounds as (radical-)democratic approaches to constitutionalism, but its alternative
constitutional solution is highly different from a democratizing approach to constitutional
politics and reform, which de facto endorses civic engagement and inclusion in
constitutional matters.67
In cases of “really existing” populist constitutionalism, such
as those of Poland and Hungary,68
a thrust toward equality and emancipation is not
at all of the universalistic and inclusionary kind as in democratic constitutionalism.
Rather, the emancipatory claim of populists is made on the basis of the mobilization
of a united people against a main enemy or set of enemies that allegedly undermine
the common good, while the people at large is equated with the victims or the
marginalized.
The four dimensions of populist critique on liberal constitutionalism and the rule
of law discussed in the article show a distorted approach to democracy. The main justificatory
claim of populists, based on popular sovereignty, is ultimately grounded in
an understanding of the people in pre-political and closed terms, indicating a political–theological
move toward a transcendental notion, which is used in turn to “regenerate”
the “empirical people” into an “ideal people,” as a “People-as-One.”69
In this
move, any division within society is denied and with it the human diversity that is at
the basis of democracy. The mode of government, majority rule, is one of extreme
majoritarianism.70
The image of the People-as-One is imposed on the majority as well
66
	 See Bragagnolo, supra note 64, at 61.
67
	 Paul Blokker, Constitutional Reform in Europe and Recourse to the People, in Participatory Constitutional Change.
The People as Amenders of the Constitution 311 (Xenophon Contiades & Alkmene Fotiadou eds., 2016).
68
	 There are clear differences between Hungary and Poland, in that Fidesz has been able to directly touch
and replace the Hungarian 1989 Constitution since 2010, whereas in Poland, PiS has resorted to a practice
of unconstitutionality, ignoring constitutional rules or strongly distorting them. A further difference
is a strong element of instrumentalism in Hungary, and a more explicit religious conservatism in Poland.
That said, Poland has clearly learned from the Hungarian experience of counter-constitutionalism. See
Kim L. Scheppele, Autocratic Legalism, 85 U. Chi. L. Rev. 545 (2018).
69
	 Claude Lefort, The Political Forms of Modern Society (1986).
70
	 See Urbinati, supra note 1.
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552 I•CON 17 (2019), 535–553
as minorities, and the former becomes understood as a permanent, eternal majority
to be protected by (constitutional) politics. The distinction between constitutional
and ordinary politics collapses, as politics become singularly a matter of promoting
the interests of the “real people.” The practical populist approach toward constitutional
politics is one of instrumentalism, emphasizing a view of (public) law as an
instrument in realizing the higher ends of the majority, in contrast to the idea of the
law as an independent force in democratic politics and as a vehicle for participation
and emancipation. This means frequent, non-transparent, executive-driven engagement
with constitutional change, often justified in terms of reclaiming the law for
the majority. The main populist attitude toward public law displays a legal resentment
against liberal–democratic constitutional regimes, in that it is skeptical regarding the
idea of a non-political, neutral rule of law that transcends politics, the idea that political
sovereignty needs (self-)limitation, and the idea that the law stands at the basis of
both individual and collective autonomy.
One important lesson we may draw from understanding populism as a constitutional
project is the insight that the critical dimension of populism exposes various
problematic dimensions of contemporary liberal–constitutional democratic
regimes. These dimensions include, for instance, the difficulties abstract, universalist,
and internationalist legal narratives face in engaging citizens and in serving as
freestanding justifications for constitutional orders; the ultimately unconvincing or
at least fragile narrative of the neutrality and apolitical nature of the rule of law; the
widespread lack of possibilities for meaningful civic engagement; and the incapacity
of liberal democratic regimes to convincingly and consistently promote the common
good. Populist constitutionalism poses in this a real challenge for liberal, representative
democracy in that it claims to preserve (or even deepen) the democratic nature
of institutions, while simultaneously revolutionizing the same institutions in order
to correspond to the needs and wishes of ordinary people. This challenge, I believe,
is to be taken seriously in the contemporary context in which liberal, representative
democracy appears to be hampering on a whole range of dimensions (including representation,
governing capacity, social equality, and citizen participation). But populism
equally “tests” constitutional democracy in a broader sense. It both challenges the
idea of transferring liberal democratic institutions to post-authoritarian societies by
means of conditionality (as in the EU enlargement process) and questions the idea of
organizing a transnational community of constitutional-democratic states, predominantly
embedded in the economic and legal, or rule of law constitutions (both inspired
by the orderly intuition of the modernist imaginary), while displaying much weaker
forms of political and democratic constitutions.71
As I have argued elsewhere,72
one
important lesson that needs to be learned urgently from the Hungarian and Polish
experiences is that a formalistic and legalistic approach to the rule of law fails to take
into account the necessary societal embeddedness of constitutionalism (in solidarity
71
	 Hauke Brunkhorst, Constituent Power and Constitutionalization in Europe, 14(3) Int’l J.  Const. L. 680
(2016).
72
	 See Blokker, supra note 48.
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Populism as a constitutional project    553
as well as participatory terms) and the deeply contested nature of distinctive elements
of the liberal constitutional program.
As should be abundantly clear from the article, the populist alternative to constitutional
democracy does, however, little to nothing to address the complexities of constitutional
democracy in the contemporary European context and rather paves the way
for what could be called a democratic dictatorship,73
a political project representing
and promoting democracy for the populists’ own majority, while using violent oppression
vis-à-vis others.
73
	 See Arato, supra note 30.
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