Populist Challenges to
Constitutional Interpretation
in Europe and Beyond
Edited by Fruzsina Gárdos-Orosz
and Zoltán Szente
First published 2021
ISBN: 978-0-367-71009-5 (hbk)
ISBN: 978-0-367-71013-2 (pbk)
ISBN: 978-1-003-14894-4 (ebk)
Chapter 1
Populism and populist constitutionalism
Zoltán Szente
CC BY-NC-ND 4.0
DOI: 10.4324/9781003148944-2
Centre for Social Sciences Hungarian
Academy of Sciences Centre of Excellence
1	 Populism and populist
constitutionalism
Zoltán Szente
1.1 Introduction
In order to get closer to answering the questions set out in the Introduction,
i.e. to understand the relationship between populism and constitutional interpretation,
it is necessary to provide the framework of the academic discourse
and the major attempts to conceptualize the two key concepts of this book.
Populist constitutionalism is a kind of intermediate category between these
two concepts and refers to the constitutional approach, aspirations, or activities
of populism. Having regard to the great variety of relevant definitions, this
study has no ambition to develop authentic conceptualizations – our goal is
simply to bring the reader closer to the academic discourse on populism, populist
constitutionalism, and constitutional interpretation, and to provide help
for a better understanding of the studies collected in this volume. In doing so,
we use the classical conceptualization technique which determines the subject
of the research by identifying its most important conceptual criteria.
Among the sources of these criteria, we can find both normative theories
and descriptive works; in fact, this chapter aims to provide a comprehensive
literature review of these categories.
1.2 The impalpable concept of populism
The conceptualization of populism is difficult not only because it is a very
abstract concept, but also because it signifies a phenomenon that does not
fit, or fits only with difficulty, into other existing conceptual frameworks.
This means that the various manifestations of populism cannot be placed
in the traditional dichotomies of the political right and left, democracy and
autocracy, and cannot be attributed to specific time periods or geographical
regions. There is not even a consensus as to whether this concept actually
refers to a particular political organization, ideology, political aspiration, or
style. Therefore, as a specific political phenomenon, it is often compared to
a chameleon that adapts to the colour of its environment.1
1  Paul Taggart, Populism (Open University Press, 2000) 4.
DOI: 10.4324/9781003148944-2
Populism and populist constitutionalism  5
Some claim that almost every scholar has an individual definition of populism
that suits his or her own interests.2
Indeed, the conceptualization of
populism has a specific, ever-expanding literature, but no consensual concept
has emerged as a result. This may also be due to the fact that populism does
not have an exemplar, a universally accepted ideal-type that exists in reality,
and, by the same token, different conceptualizations are attempted in the
discourse on the topic. It is common to highlight only one defining criterion,
but many seek to identify populist policies or movements on the basis
of several criteria,3
and there are even examples which define primary and
secondary aspects (on the basis of which different types of populism can also
be distinguished).4
Some definitions of populism are normative, classifying
certain political phenomena as populist according to whether they meet a
pre-established general conceptualization, while others approach the notion
of populism on an empirical basis by generalizing the main characteristics
of certain political systems or movements. As a consequence, ‘[a] persistent
feature of the literature on populism is its reluctance – or difficulty – in giving
the concept any precise meaning’, and any ‘[n]otional clarity – let alone
definition – is conspicuously absent’.5
Therefore, some suggest that populism should be given a ‘minimalist’
definition that includes as many of the cases discussed as possible in its own
conceptual scope,6
although an overly broad definition would call into question
the use of this category for scientific analysis.
Due to this conceptual diversity and indeterminacy, it is not surprising that
there are also authors who think that the concept of populism as such is less
suitable for exploration by the social sciences.7
However, the use of the term is extremely widespread in political science
and even in constitutional scholarship, and, in addition, despite different
attempts at conceptualization, this phenomenon has several features on
which there is a broad consensus among scholars. Therefore, it is still worth
taking a closer look at the best-known definitions of populism and the criteria
most often attributed to populists.
2 Jürgen Mackert, ‘Introduction. Is There Such a Thing as Populism?’ in Gregor Fitzi,
Jürgen Mackert, and Bryan S. Turner (eds.), Populism and the Crisis of Democracy. Volume
1: Concepts and Theory (Routledge 2018) 2.
3 Yves Mény and Yves Surel, ‘The Constitutive Ambiguity of Populism’ in Yves Mény and
Yves Surel (eds.), Democracies and the Populist Challenge (Palgrave MacMillan 2002) 1–21.
4  For the latter, see for example Paul Taggart, ‘Populism and “Unpolitics”’ in Gregor Fitzi,
Jürgen Mackert, and Bryan S. Turner (eds.), Populism and the Crisis of Democracy. Volume
1: Concepts and Theory (Routledge 2018) 80.
5  Ernesto Laclau, On Populist Reason (Verso 2005) 3.
6 Cristóbal Rovira Kaltwasser, ‘How to Define Populism? Reflections on a Contested
Concept and its (Mis)use in the Social Sciences’ in Gregor Fitzi, Jürgen Mackert, and
Bryan S. Turner (eds.), Populism and the Crisis of Democracy. Volume 1: Concepts and Theory
(Routledge 2018) 64.
7 Cathérine Colliot-Thélène, ‘Populism as a Conceptual Problem’ in Gregor Fitzi, Jürgen
Mackert, and Bryan S. Turner (eds.), Populism and the Crisis of Democracy. Volume 1:
Concepts and Theory (Routledge 2018) 19.
6  Zoltán Szente
1.3 Conceptualizing populism
1.3.1 Historical background
Populism is not a recently discovered concept; its roots go back to the 19th
century, and it was first used, perhaps, for the Populist Party in the United
States and for the Narodnik movement in Russia at the end of that century.
In reality, however, its use became widespread in post-World War II Europe,
when it began to be applied to various political organizations, such as the
French Poujade movement, the right-wing Development Party of the Danish
Mogens Glistrup, and the left-wing movements that emerged in the 1970s
and 1980s, such as the green parties in Western Europe.8
These movements
had different ideologies and political aspirations, but their common features
were radicalism and opposition to the ruling political establishment.
Subsequently, populism emerged in various waves and was most often
linked in the 1990s and 2000s to radical right-wing parties such as the Freedom
Party (FPÖ) led by Jörg Haider in Austria, the French National Front
by Jean-Marie Le Pen, Forza Italia in Italy which was founded and led by
Silvio Berlusconi, or the Pim Fortuyn List (LPF) in the Netherlands. At the
same time, some radical leftist movements have also been characterized as
populists, such as the German The Left (Die Linke) or, at the same time, the
Dutch and Scottish socialist parties. Although mostly outsider parties have
been labelled in this way, some claim that ‘since the early 1990s populism has
become a regular feature of politics in western democracies’.9
However, populism also emerged outside Europe in the 20th century,
and one of its best-known examples was the movement of Juan Perón in
Argentina, which actually created traditions that persist to this day; and several
other Latin American regimes have been considered populists since the
1960s. In the USA such a trait has often been assigned to the so-called alternative
(i.e. not supported by the two major parties) presidential candidates,
such as Ross Perot, Ralph Nader, and Pat Buchanan, but some also consider
McCarthyism, which has been developing since the 1940s, to be populist.10
Furthermore, populism was not limited to outsider or alternative movements,
parties, or politicians, since many observers described such leading
politicians as Tony Blair as populists, on the basis of his third-way program,11
and this is how US President Jimmy Carter described himself.12
The latest surge of populism emerged in the 2010s and has now become
so prevalent that it definitely deserves special attention. It is believed that the
global economic crisis that erupted in 2008, the refugee crisis that peaked in
2015, and the terrorist attacks of 2010s all fuelled increasingly authoritarian
  8  Cas Mudde, ‘The Populist Zeitgeist’ (2004) 39 Government and Opposition 548.
 9 Ibid. 551. See also Jack Haward, Elitism, Populism, and European Politics (Oxford
University Press 1996) 10.
10  Jan-Werner Müller, What Is Populism? (University of Pennsylvania Press 2016) 91.
11  Mudde (n 8) 551.
12  Müller (n 10) 91.
Populism and populist constitutionalism  7
populist regimes in several post-communist countries in Central and Eastern
Europe, strengthened the anti-immigrant and EU-sceptical populist movements
in Western Europe, and played a role in events such as the withdrawal
of the United Kingdom from the European Union. In 2014, 24 of the then
28 member states of the EU had populist parties in their parliaments.13
In the United States, the appearance, and subsequent development, of the
Tea Party since the early 2000s, a process that reportedly culminated in the
election of Donald Trump in 2016, is seen as part of a populist wave. But
populism is present in several countries in Latin America (especially in Venezuela,
Bolivia, Ecuador, and Brazil) and Asia (in the Philippines).
According to some, the novelty of today’s populism is precisely its intensity
and prevalence in constitutional democracies.14
1.3.2 The dimensions of populism
But what connects these vastly different politicians, movements, and political
systems?
According to perhaps the most quoted definition, populism is
a thin-centered ideology that considers society to be ultimately separated
into two homogeneous and antagonistic camps, ‘the pure people’
versus the ‘corrupt elite’, and which argues that politics should be an
expression of the volonté générale (general will) of the people.15
In this sense, populism only provides a framework that can be filled with
substantive ideologies such as socialism or conservatism.16
This means that
although it can be considered an ideology, it is not a system of ideas that
provides a comprehensive explanation for social coexistence or that defines
the ideal of the best political system. Its central idea is to represent the
‘real’ interests of the people,17
as opposed to the political elite that holds
13 Sofie Blombäck, ‘Populism as a Challenge to Liberal Democracy in Europe’ in Antonia
Bakardjieva, Engelbrekt Niklas Bremberg, Anna Michalski, and Lars Oxelheim (eds.), The
European Union in a Changing World Order. Interdisciplinary European Studies (Palgrave
Macmillan 2020) 227−229.
14 Nadia Urbinati, ‘Political Theory of Populism’ (2018) 22 Annual Review of Political
Science 112.
15 Cas Mudde and Rovira Kaltwasser, Populism: A Very Short Introduction (2nd ed. OUP
2017) 5.
16 Axel Mueller, ‘The Meaning of ‘Populism” (2019) 45 Philosophy and Social Criticism,
1029; Bojan Bugarič, ‘The Two Faces of Populism: Between Authoritarian and Democratic
Populism’ (2019) 20 German Law Journal 392; Théo Fournier, ‘From Rhetoric to Action,
a Constitutional Analysis of Populism’ (2019) 20 German Law Journal 363; Mudde (n
8) 544.
17 Julian Scholtes, ‘The Complacency of Legality: Constitutionalist Vulnerabilities to
Populist Constituent Power’ (2019) 20 German Law Journal 352.
8  Zoltán Szente
(or usurps) power.18
In other words, its defining characteristics are popular
sovereignty and anti-elitism, which overrides the traditional left-right dichotomy
of political ideologies19
and is therefore difficult to classify among their
traditional forms.
As has been stated by Jan-Werner Müller, who wrote a short monograph
on the concept, populism is a specific moral conception of politics that contrasts
a morally clean and united people with an elite that is supposed to
be corrupt.20
This kind of interpretation already leads to a conception of
populism that identifies the concept with specific political aspirations. In this
framework of conceptualization, the main objective of populism is to protect
the ordinary citizens from elites and foreign groups (such as immigrants), and
to replace corrupt elites.21
It is a political trend that ‘is inherently hostile to
the idea and institutions of liberal democracy or constitutional democracy’.22
One of the crucial questions in the conceptualization of populism is its
relationship to democracy, which is the most widely discussed topic in the
relevant political science academic discourse. In this respect, the range of
positions to found in the literature is particularly wide. At one end of the
range of opinions are perceptions that view populism as a challenge to liberal
democracy (or its elite) which is not in itself anti-democratic, even if its concept
differs from that of Western-type constitutional democracy.23
According
to this view, populism can also be seen as an attempt at a correction of
democracy that gives voice to groups that are not represented by elites.24
Proponents of this position often cite examples that did not lead to an
authoritarian system25
but, on the contrary, attempted to make democracy
more inclusive.26
And although authoritarian populism has indeed taken on
the hegemonic form today, many authors believe that democratic populism
is also possible. This line has historically included in the United States the
presidency of Andrew Jackson and the New Deal policy of Franklin Delano
Roosevelt, and today in Europe the populism represented by the Spanish
Podemos or the Greek Syriza Party.27
Overall, therefore, after coming to
18  Margaret Canovan, ‘Trust the People! Populism and the Two Faces of Democracy’ (1999)
47 Political Studies 3; Mudde (n 8) 543.
19  Bojan Bugarič and Alenka Kuhelj, ‘Varieties of Populism in Europe: Is the Rule of Law in
Danger?’ (2018) 10 Hague Journal on the Rule of Law 22.
20  Müller (n 10) 39.
21 Roger Eatwell and Matthew Goodwin, National Populism: The Revolt Against Liberal
Democracy (Penguin 2018) 55–56.
22  Mudde (n 8) 561.
23  Eatwell and Goodwin (n 21) xi–xii.
24 Cristóbal Rovira Kaltwasser, ‘The Ambivalence of Populism: Threat and Corrective for
Democracy’ (2012) 19 Democratization 185.
25 Paul Blokker, ‘Varieties of Populist Constitutionalism: The Transnational Dimension’
(2019) 20 German Law Journal 350.
26 Bojan Bugarič, ‘Could Populism Be Good for Constitutional Democracy?’ (2019) 15
Annual Review of Law and Social Science 43.
27  Ibid. 43, 46.
Populism and populist constitutionalism  9
power, despite transforming democratic principles, populism does not break
with democracy itself.28
However, according to the opposite view, a historical comparison shows
that if populists come to power, they will build a system that is democratic
but not liberal in that it merely imitates liberal principles and institutions but
ultimately undermines liberal democracy.29
In fact, this is a more frequent
view, which sees populism as an authoritarian challenge to liberal democracy,
which does not reject the principle of representation in modern democracies
but is not considered democratic precisely because it promotes a conception
of representation that claims exclusiveness inasmuch as populists consider
themselves as the only legitimate representatives of the people. By this
means, they are a real threat to democracy,30
and, in the long run, they dismantle
constitutional democracy31
and do not introduce an open dictatorship
simply because this would come at too high a political price.32
Kim Lane
Scheppele openly views politicians, otherwise characterized as populists, as
autocrats who capture state institutions and use constitutional and democratic
tools to destroy constitutional democracy. The new autocrats not only
exploit popular distrust of public institutions but also attack the principles
of liberal and democratic constitutionalism because they want to consolidate
their own power and, while maintaining the appearance of democracy and
the rule of law, use their democratic authorization to remove the limits on
executive power.33
However, many authors think that the relationship between populism and
democracy cannot be characterized in general terms, because any assessment
of this issue largely depends on the normative presuppositions regarding
democracy: thus, for example, adherents of liberal democracy generally see
populism as a pathological phenomenon, while proponents of radical democracy
hold that it strengthens representation; therefore, the evaluation of the
relationship is less an empirical but rather a theoretical question, the answer
to which depends on speculation as to how democracy should work.34
Some scholars simply use the concept of populism to denote political systems,
parties, or movements that promote populist principles or follow such
an ideology. Populism is accordingly a ‘wide contemplative frame’, marking
very different left- and right-wing political regimes, which have in common
28  Urbinati (n 14) 118.
29  Takis S. Pappas, ‘Populists in Power’ (2019) 30 Journal of Democracy 70, 72, 82.
30  Müller (n 10) 103.
31 Jan-Werner Müller, ‘Populism and Constitutionalism’ in Cristóbal Rovira Kaltwasser,
Paul Taggart, Paulina Espejo Ochoa, Pierre Ostiguy (eds.), The Oxford Handbook of
Populism (Oxford University Press 2017) 603.
32  Müller (n 10) 50.
33 Kim Lane Scheppele, ‘Autocratic Legalism’ (2018) 85 The University of Chicago Law
Review 547.
34  Kaltwasser (n 24) 185.
10  Zoltán Szente
that they refer to the unified people as the ultimate source of political morality
and public power.35
Others see populism only as a specific political style or rhetoric that refers to
the power of the people or is based on anti-minority policies and attitudes.36
1.3.3 Types of populism
The vagueness of the concept of populism is counterbalanced by several
authors by distinguishing between its types, often classifying extremely different
groups or ideological creeds into this category. As already mentioned,
the loose ideological frameworks of populism make it inclusive for traditional
political streams, so it is not surprising that many differentiate between leftwing
and right-wing populism and populists according to what values are
associated with their ideology or ambitions, or from which social group they
expect electoral support.37
For example, Viktor Orbán and his party, Fidesz
in Hungary, the informal leader in Poland, Jarosław Kaczyński and the ruling
Law and Justice Party (Prawo i Sprawiedliwość, PiS), or the German opposition
party Alternative for Germany (Alternative für Deutschland, AfD), are
considered right-wing populists. In contrast, the Greek ruling party, Syriza
and the Spanish opposition Podemos, or Bernie Sanders, a Democratic presidential
candidate in 2016 and 2020, are generally characterized as leftists. It
should also be noted that there are occasionally significant political-ideological
cleavages between like-minded populist parties and movements, which
makes the picture even less clear. In Europe, for example, some left-wing and
right-wing parties support both the euro and European integration, while
many other populist parties are Eurosceptic.38
Similarly, it is common to distinguish between ‘negative’ and ‘positive’,39
‘good’ and ‘bad’, ‘authoritarian’ and ‘emancipatory’40
populism, groups
which are in fact based on the relationship of a particular populist policy
regarding democracy, and accordingly the distinction is made between
authoritarian and democratic populism. Thus, the populist regimes in Hungary
and Poland are often seen as authoritarian based on their nationalism
and the semi-authoritarian nature of their legal and political reforms,41
as
opposed to Western European populism, which has not destroyed liberal
35 Neil Walker, ‘Populism and Constitutional Tension’ (2019) 17 International Journal of
Constitutional Law 517, 519; Fournier (n 16) 363.
36 See on this, Aziz Z. Huq, ‘The People Against the Constitution’ (2018) 116 Michigan
Law Review 1124; and Mueller (n 16) 1130; Fournier (n 16) 365; Blombäck (n 13) 219.
37 Mark Tushnet, ‘Comparing Right Wing and Left Wing Populism’, in Mark A. Graber,
Sanford Levinson and Mark Tushnet (eds.), Constitutional Democracy in Crisis? (Oxford
University Press 2018).
38 Bugarič (n 16) 396.
39  See on this, Henrik Bang and David Marsh, ‘Populism: A Major Threat to Democracy?’
(2018) 39 Policy Studies 3.
40 Bugarič (n 26) 42.
41  For example, Bugarič (n 16) 393, Bugarič and Kuhelj (n 19) 22.
Populism and populist constitutionalism  11
constitutionalism and the rule of law.42
In particular, there are those who
emphasize the democratic features of populism, arguing that populism
provides responses to the real problems of liberal democracies, such as
the gap between the representative institutions and the represented peo-
ple,43
or the ‘lack of possibilities for meaningful civic engagement’ in public
decision-making.44
One of the best-known scholars of populism, Margaret Canovan, says
there can be different varieties of populism depending on against what type
of establishment they mobilize, because her approach is to define someone
as populist because of how he or she relates to the power structure.45
Other
views suggest that while the original notion of populism, based on the juxtaposition
of mass and elite, is often associated with authoritarianism and xenophobia,
the latter phenomena should not necessarily be classified as populism
because this kind of conceptualization is not useful for the analysis.46
1.4 The mysterious notion of populist constitutionalism
The debates on populism have also reached the constitutional discourse, recognizing
that one of the distinguishing features of modern populism is its
‘constitutional project’, that is, the ambitions of populists to pursue constitutional
changes to achieve their goals when they come to power.47
It should
be noted, however, that some opinions, as far as authoritarian populism is
concerned, do not attach particular importance to formal rules because they
believe that these regimes use primarily informal means; and they are rather
characterized by the way they manipulate, circumvent, or evade constitutional
and legal rules that would limit their power. Such systems, which are
sometimes referred to as competitive authoritarian regimes, often operate
within the framework of seemingly democratic constitutions but neutralize
control of power by informal means.48
Nevertheless, after having come to power in several countries, those generally
considered ‘authoritarian populists’ adopted new constitutions to
serve their purposes (such as in Peru in 1995, Venezuela in 1999, Ecuador
in 2008, Bolivia in 2009, and Hungary in 2011), or they achieved significant
constitutional reforms (such as in Turkey in 2017, or in Poland after
2015). As a result, it is now common to believe that it would be erroneous to
underestimate the importance of formal constitutional rules in the so-called
42 Bugarič and Kuhelj (n 19) 23.
43 Andrew Arato, ‘How We Got Here? Transition Failures, Their Causes and the Populist
Interest in the Constitution’ (2019) 45 Philosophy and Social Criticism 1108.
44 Paul Blokker, ‘Populism as a Constitutional Project’ (2019) 17 International Journal of
Constitutional Law 552.
45  Canovan (n 18) 4.
46  David Fontana, ‘Unbundling Populism’ (2018) 65 UCLA Law Review 1496.
47  Blokker (n 44).
48  Steven Levitsky and Lucan A. Way, Competitive Authoritarianism: Hybrid Regimes After
the Cold War (Cambridge University Press 2010) 78−81.
12  Zoltán Szente
‘hybrid regimes’ that also include populist governments. This is shown
by the success and spread of the term ‘populist constitutionalism’, which,
however, has several rival concepts depending on how observers classify the
main aspirations of these movements and their relationship to constitutional
democracy.
1.4.1 ‘Authoritarian’, ‘illiberal’, or ‘populist’ constitutionalism?
Although some scholars suppose that after the recent threats of constitutional
democracy, which have now become a global phenomenon, no new
model of constitutional systems has emerged,49
the constitutional effects of
populism are considered by most academics to be so significant that it is
treated as a separate category.50
The contemporary decline or backsliding of liberal democracies are defined
in various ways, but many of the widely used labels such as ‘constitutional
breakdown’,51
‘stealth authoritarianism’,52
or ‘democratic recession’53
indicate
the process rather than the substance.
The political systems that emerge as a result of these tendencies are often
referred to in political science works as ‘hybrid regimes’,54
or competitive55
or
electoral56
authoritarianism. For many authors, some of the competing terms are
interchangeable concepts or are related to each other as main and sub-groups.
Other scholars prefer to classify this legal transformation as, for example,
‘autocratic legalism’57
or ‘counter-constitutionalism’.58
Among the often-used
terms, ‘abusive constitutionalism’ is frequently cited, according to which modern
authoritarian regimes seek constitutional changes through which they can
consolidate or preserve their power. However, a constitution or constitutional
amendment for such a purpose can be considered abusive, as it is basically
aimed at weakening or breaking down the limits of governmental power or
making it more difficult for the opposition to come to power.59
49  Mark A. Graber, Sanford Levinson, and Mark Tushnet, ‘Introduction’ in Mark A. Graber,
Sanford Levinson, and Mark Tushnet (eds.), Constitutional Democracy in Crisis? (Oxford
University Press 2018) 3.
50  These oppositional categories, however, are not strictly correct, if we consider the question
of whether or not populism has produced its own constitutional theory.
51  Wojciech Sadurski, Poland’s Constitutional Breakdown (Oxford University Press 2019).
52  Ozan O. Varol, ‘Stealth Authoritarianism’ (2015) 100 Iowa Law Review 1673–1742.
53  Larry Diamond, ‘Facing Up to the Democratic Recession’ (2015) 26 Journal of Democracy
142.
54  Matthijs Bogaards, ‘How to Classify Hybrid Regimes? Defective Democracy and Electoral
Authoritarianism’ (2009) 16 Democratization 399–423.
55  Levitsky and Way (n 48).
56 Andreas Schedler, The Politics of Uncertainty Sustaining and Subverting Electoral
Authoritarianism (Oxford University Press 2013).
57  Scheppele (n 33) 545−583.
58 Paul Blokker, ‘Populist Counter-Constitutionalism, Conservatism, and Legal
Fundamentalism’ (2019) 15 European Constitutional Law Review 519−543.
59  David Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 213.
Populism and populist constitutionalism  13
According to other approaches, populism is a political phenomenon
whose constitutional ambitions are better expressed by the terms ‘illiberal’
or ‘non-liberal constitutionalism’,60
which is a stage in the process of a transition
from liberal democracy to an authoritarian system, a special form of
constitutional development that relativizes the rule of law, democracy, and
human rights in politically sensitive matters and institutionalizes populist
nationalism.61
The term can be traced back to a frequently cited article by
Fareed Zakaria,62
but many politicians use the term for their own defini-
tion,63
maintaining however that their illiberal regimes – such as in Poland
and Hungary – can be classified as constitutional democracies.64
The effects of populism on the constitutional system are most often
referred to as ‘populist constitutionalism’,65
a term which is often preferred
because it refers specifically to changes brought about by populist politics,
while the epithets ‘authoritarian’ or ‘illiberal’ have broader meanings that
can also be applied to non-populist regimes.
1.4.2 Populist constitutionalism: an oxymoron, or a special kind
of constitutional system?
The political theory debate about the relationship between populism and
democracy appears in the constitutional discourse mostly in the form of the
dichotomy of populism and constitutionalism, which indicates the only existing
consensus, i.e. that there is a tension between the two pillars of modern
democracies, popular will and constitutionalism.66
While some scholars argue that constitutionalism also makes sense without a liberal
character,67
many claim that illiberal constitutionalism is an oxymoron because
constitutionalism as such can only be liberal, whereas Central and Eastern European
and Latin American populist regimes are seen as authoritarian regimes.68
60 Graham Walker, ‘The Idea of Non-Liberal Constitutionalism’ in Ian Shapiro and Will
Kymlicka (eds.), Ethnicity and Group Rights (New York University Press 1997) 169.
61 Tímea Drinóczi and Agnieszka Bień-Kacała, ‘Illiberal Constitutionalism: The Case of
Hungary and Poland’ (2019) 20 German Law Journal 1141, 1165; Aron Buzogány,
‘Illiberal Democracy in Hungary: Authoritarian Diffusion or Domestic Causation?’
(2017) 24 Democratization 1307–1325.
62  Fareed Zakaria, ‘The Rise of Illiberal Democracy’ (1997) 76 Foreign Affairs 22−43.
63  Drinóczi and Bień-Kacała (n 61) 1148.
64  Ibid. 1149.
65  For instance, in Paul Blokker, ‘Populist Constitutionalism’ Verfassungsblog, 2017/5/04.
https://verfassungsblog.de/populist-constitutionalism/; David Landau, ‘Populist
Constitutions’ (2018) 85 The University of Chicago Law Review 521−543.
66  Mény and Surel (n 3) 7−11.
67 Mark Tushnet, ‘The Possibility of Illiberal Constitutionalism?’ (2017) 69 Florida Law
Review 1367−1384; Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional
Democracy (The University of Chicago Press 2018).
68  See for example Gábor Attila Tóth, ‘Constitutional Markers of Authoritarianism’ (2019)
11 Hague Journal on the Rule of Law 37−61; Gábor Halmai, ‘Populism, Authoritarianism
and Constitutionalism’ (2019) 20 German Law Journal 296–313.
14  Zoltán Szente
Others suppose, however, that ‘[p]opulist constitutionalism is, … limited
to a procedural vision of democracy’,69
that is, populism does not necessarily
undermine constitutional democracy, and the claim that populism is
unconstitutional because of its inherent characteristics is erroneous.70
In the
United States, for example, just as populism has a positive, democratic tradition,
populist constitutionalism has also a progressive trend that would
give the people a greater role in determining the content of the constitu-
tion,71
together with questioning or proposing at least a more moderate
form of judicial review.72
Although the new wave of populism in Europe has
a primarily negative reputation, it is a Janus-faced concept that has different
types, and that can be authoritarian or democratic; the point is that a populist
constitutionalism that combines the principles of liberal constitutionalism
and democracy is possible.73
Populist constitutionalism is not a contradiction
in terms if we mean by constitutionalism only that governmental practice
complies with the constitutional requirements (whatever these are), and
‘it is a theory of constitutions and constitutional practices that emphasizes
their populist character and recommends that they develop along a populist
trajectory’.74
According to its characteristics, populist constitutionalism can also be
understood as a coherent political theory.75
In this view, populist regimes
are fighting not for an improved liberal constitutionalism, but for an alternative
one based on direct legitimacy through the people.76
Just as liberal
constitutionalism is in fact an aspirational idea, so illiberal constitutionalism
can also be a normative concept, albeit in the opposite direction.77
Populism
has a sui generis constitutionalism, a counterpart of liberal constitutionalism,
and ‘constitutional populism’ is characteristic of government-run, institutionalized
populism that pursues populist constitutional reforms, such as in
Venezuela, Bolivia, or Hungary.78
Unlike anti-constitutional regimes, such
systems have constitutions that limit power, but they are not centred on
individual rights, and are not ideologically neutral, but are based on the
69  Fournier (n 16) 381.
70 Bugarič (n 16) 390, 395.
71 See on this, Lucia Corso, ‘What Does Populism Have to Do with Constitutional Law?
Discussing Populist Constitutionalism and Its Assumptions’ (2014) III Rivista di filosofia
del diritto, 443−470.
72 As, for example, in Mark Tushnet, Taking the Constitution Away from the Courts
(Princeton University Press 1999).
73  Ibid. 391. That is, there is not only exclusionary but also inclusive populism. Cédrich M.
Koch, ‘Varieties of Populism and the Challenges to Global Constitutionalism: Dangers,
Promises and Implications’ (2020) Global Constitutionalism 9.
74  Oran Doyle, ‘Populist Constitutionalism and Constituent Power’ (2019) 20 German Law
Journal 164.
75  Ibid. 165.
76  Landau (n 59) 541.
77  Tushnet (n 67) 1368, 1371.
78  Manuel Anselmi, Populism. An Introduction (Routledge 2018) 87.
Populism and populist constitutionalism  15
substantive values of ethnic, religious, or communitarian morality.79
The
constitutional policy of populists creates a radically different constitutional
polity compared to the liberal legal-constitutional system; that is, it is a kind
of response to constitutional orthodoxy,80
even if in some countries, such as
Poland or Hungary, there is a kind of counter-constitutionalism.81
However, the opposing view is that populist or illiberal constitutionalism
is an oxymoron as far as authoritarian populism is concerned because liberalism
is not only a restriction of the majority principle but also a precondition
for democracy that guarantees the rule of law, a system of checks and
balances and fundamental rights. If the main feature of constitutionalism is
the legally limited power of government, then this requirement is not met,
neither by authoritarian nor illiberal constitutionalism.82
In other words, as
populists reject the limits of political power, they also deny the very idea of
constitutionalism,83
because constitutionalism per se means that laws must
conform to liberal principles.84
As the inherent ambition of populism is to
enforce the homogeneous will of a united people, it removes the limitations
of the vox populi such as the separation of power, the autonomy of politically
neutral bodies, or the rights of minorities.85
Thus, it does not make sense to
talk about populist constitutionalism in a meaningful way, because populists
undermine not only its technical and organizational characteristics, but its
basic values.86
Some authors point out that this is not a static situation, but
populist governance slowly, peacefully and, in a formal sense, legitimately
abolishes constitutionalism, and illiberal democracy becomes an oxymoron
only in the long run.87
In a sense, between these two opposing positions is the theory of ‘abusive
constitutionalism’, which means ‘the use of the mechanisms of constitutional
change – constitutional amendment and constitutional replacement – to
undermine democracy’. This approach sees the novelty of the contemporary
global decline of liberal constitutionalism in the fact that autocrats today
no longer come to power through coups and do not preserve it by open
violence, but form governments through democratic elections and retain
79 Li-Ann Thio, ‘Constitutionalism in Illiberal Polities’ in Michael Rosenfeld and András
Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law (Oxford University
Press 2013) 136.
80  Walker (n 35) 529.
81  Blokker (n 58) 520.
82  Halmai (n 68) 311–312.
83  Scholtes (n 17) 353.
84  Scheppele (n 33) 563.
85  Müller (n 31) 598.
86 Martin Krygier, ‘The Challenge of Institutionalisation: Post-Communist “Transition”,
Populism, and the Rule of Law’ (2019) 15 European Constitutional Law Review 570.
87  Wojciech Sadurski, ‘Constitutional Crisis in Poland’ in Mark A. Graber, Sanford Levinson,
and Mark Tushnet (eds.), Constitutional Democracy in Crisis? (Oxford University Press
2018) 272; Gábor Attila Tóth, ‘Breaking the Equilibrium: From Distrust of Representative
Government to an Authoritarian Executive’ (2019) 28 Washington International Law
Journal 321.
16  Zoltán Szente
their power by constitutional means. Such constitutional systems seem distantly
democratic and contain many elements that can also be found in liberal
constitutions; in reality, however, on closer inspection, they undermine
democracy, as in Colombia, Venezuela, and Hungary. ‘They are increasingly
turning towards constitutional amendment and replacement as tools to help
them construct a more authoritarian order’, and use ‘mechanisms of constitutional
change in order to make a state significantly less democratic than it
was before’.88
The background of these conceptualization debates is that while some
accept the formal(ist) notion of constitutionalism, according to which it
means the mere existence and enforcement of a constitution regardless of its
content, others view constitutionalism in a ‘material’ sense; that is, according
to them, it is possible to talk about constitutionalism in a meaningful way,
only if certain (liberal) constitutional principles prevail in practice.
It is also worth noting that some authors distinguish between different
forms of populist constitutionalism within its conceptual scope, making a
distinction between, for example, ‘inclusive’ and ‘exclusionary’,89
‘cosmopolitan’
and ‘communitarian’90
constitutionalism (which are, in fact, repercussions
of the liberal–illiberal dichotomy in other contexts), national and
transnational constitutional populism,91
and so on.
1.4.3 Defining populist constitutionalism: positive and negative criteria
Despite these conceptual debates, there is a broad consensus that populism
has now posed a significant challenge to the institutions and principles of
constitutional democracies, and that the category of populist constitutionalism
has become so widespread that its use or exploration, even in a critical
sense, can hardly be ignored if we want to understand this challenge.
Populist constitutionalism is often defined not only as the antithesis of liberal
constitutionalism, but also on the basis of one or more of its characteristics.
Many authors highlight a single aspect as a defining feature. Of course,
these criteria are very often the same as the different conceptualizations of
populism, or their constitutional transformations. Thus, for example, according
to one conceptual attempt, populist constitutionalism is a constitutional
practice based on the conflict between two homogeneous and antagonistic
groups (a homogeneous people on the one side, and special interest groups
such as the power establishment, technocrats, international organizations,
immigrants, certain minority groups on the other) which redefines the balance
between individual and collective interests.92
Others suppose it to be a
88  Landau (n 59) 191, 195.
89  Blokker (n 25) 343.
90  Koch (n 73) 3.
91  Blokker (n 25) 344.
92  Walker (n 35) 516, 533.
Populism and populist constitutionalism  17
constitutional strategy aimed at consolidating power,93
while some identify
this concept with the specific perception of the nature of constituent power
and popular sovereignty.94
Some conceptual criteria that can be identified from the literature are
negative ones, in the sense that populism and populist constitutionalism are
often defined as criticisms or denials of certain key features of traditional
constitutional democracies. At the same time, there are also positive criteria
that relate to the main values, principles, and institutional solutions of this
type of constitutionalism.
Most of these criteria, as we shall see, are characteristic of authoritarian
populism and its constitutional conception; this is hardly surprising, since in
practice this is the prevailing trend today. It is also important to note that
the following characteristics are not specific to all populist governments or
movements but are present in various countries to different degrees and in
different combinations, and in the end, the various traits cannot be sharply
separated from each other, i.e. there may be significant overlaps between
them.
1.4.3.1 Negative criteria of populist constitutionalism
1.4.3.1.1 CRITICISM OF THE SEPARATION OF LAW AND POLITICS
Populists are usually critical of the liberal conception of constitutionalism
and the rule of law, criticizing its depoliticization because it removes people
from institutions. According to Paul Blokker, there is no difference between
right-wing and left-wing populism in that both oppose the separation of law
and politics, which means that populism rejects the restriction of political
power by legal norms.95
Some scholars apply the theory of political constitutionalism to populist
constitutional policy, claiming that the constitutional ambitions of populism
represent a shift from legal to political constitutionalism; that is, they aim to
establish a new constitutional order that supports the will of the people and
the common good against particular interests.96
However, this interpretation
has also provoked controversy in the literature, as some authors argue that
populist or illiberal constitutional aspirations, insofar as they seek to dismantle
checks and balances, do not meet the democratic requirements of political
93  Simone Chambers, ‘Democracy and Constitutional Reform: Deliberative versus Populist
Constitutionalism’ (2019) 45 Philosophy and Social Criticism 118.
94 Luigi Corrias, ‘Populism in a Constitutional Key: Constituent Power, Popular Sovereignty
and Constitutional Identity’ (2016) 12 European Constitutional Law Review 9; Doyle (n 74)
164.
95  Blokker (n 44) 535−537, 539.
96 Lech Morawski, ‘A Critical Response’ Verfassungsblog, June 3, 2017.; Blokker (n 58)
531−532, Blokker (n 44) 539.
18  Zoltán Szente
constitutionalism, as the latter does not mean unlimited public power, but
this theory stresses that the restriction of power is of a political nature.97
Some argue that populists’ ‘legal resentment’ is motivated by the fact that
the politically neutral conception of law in a liberal democracy undermines
the representation of the national interest because, for example, it allows
constitutional courts and other supreme courts to obstruct the popular will.98
1.4.3.1.2 ANTI-ELITISM
It is a common feature of the various approaches of populism that one, if not the
most essential, characteristic of this political phenomenon is the juxtaposition
of the virtuous people and the corrupt elite, and their opposition to the elite’s
interests. In addition, populists refer to a united people (nation, community), or
‘ordinary’ people as opposed to a privileged cosmopolitan elite, i.e. to average
people whose interests are suppressed by an arrogant elite, corrupt politicians,
or minorities.99
‘Populists are anti-establishment politicians – figures who, claiming
to represent the voice of “the people”, wage war on what they depict as a
corrupt and conspiratorial elite’.100
Notably, it is a radical anti-elitism that recognizes
the will of the people as the only source of constitutional legitimacy.101
Populism differs from other anti-regime groupings in that it questions not only
those in power but also the values of the elite.102
Not only does it sharply criticize
the power elite, but in its political program, it also promises that by coming to
power, people will take back control or take their country back from elites who
usurp power.103
Nevertheless, there is some variety as to what groups are designated as
part of the elite. Most often, politicians and parties in power (if they are not
the populists themselves) are classified in this circle, but officials of the most
anti-majoritarian institutions, such as the judges of the constitutional courts
or ordinary courts, are frequently seen as elitist groups against whom the real
will of the people must be enforced. But international organizations or EU
institutions are also often seen as obstacles to popular will.
 97 Pablo Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’ (2019)
15 European Constitutional Law Review 63, 65; Halmai (n 68) 302, 304; Drinóczi and
Bień-Kacała (n 61) 1161−1162.
  98  Blokker (n 44) 549, 551.
  99  Canovan (n 18) 5.
100  Steven Levitsky and Daniel Ziblatt, How Democracies Die (Crown Publishing 2018) 22.
101 Valerio Fabbrizi, ‘Constitutional Democracy in the Age of Populisms: A Commentary
to Mark Tushnet’s Populist Constitutional Law’ (2019) Res Publica, https://doi.
org/10.1007/s11158-019-09430-7; Bojan Bugarič, ‘Central Europe’s Descent into
Autocracy: A Constitutional Analysis of Authoritarian Populism’ (2019) 17 International
Journal of Constitutional Law 598; B. Guy Peters and Jon Pierre, ‘A Typology of
Populism: Understanding the Different Forms of Populism and Their Implications’
(2020) Democratization, DOI: 10.1080/13510347.2020.1751615; Mudde (n 8) 543,
546; Müller (n 10) 2; Müller (n 31) 593.
102  Canovan (n 18) 3.
103  Mueller (n 16) 1026.
Populism and populist constitutionalism  19
It is to be noted, however, that anti-elitism is often merely rhetoric, used
mostly by populist opposition movements and politicians, and not infrequently
selective – at least as is shown by the fact that some politicians generally
classified as populists themselves belonged to the political (like the
Hungarian Viktor Orbán or the Polish Jarosław Kaczyński) or the economic
elite (like Silvio Berlusconi in Italy or Donald Trump in the United States)
when they came to power. On the other hand, experience shows that populist
governments are not inherently or generally anti-elitists, as they themselves
often pursue elitist policies once they come to power, i.e., their political program
is indeed more about only replacing the ruling or former elite.
The ‘people’, which is postulated as a uniform one, is often opposed
by populist politicians not only to the ruling elite, but also to certain
minority groups, such as LGBTQ communities or immigrants, whose
distinctive features differ from the morality or identity of the majority.
Populist governments can discriminate against enemy groups by legal
means, also stigmatizing NGOs and alternative churches, or restricting
their operations.
1.4.3.1.3 ANTI-INSTITUTIONALISM
Populism is usually characterized not only by its radical anti-elitism but also
by its distrust of traditional institutions. This is often explained by the fact
that populists see these institutions as obstacles to the will of the people, and
when they come to power they weaken or dismantle them if they obstruct
populist governance.104
The illiberal version of populism rejects the constitutional
limits of state power and the protection of minority rights.105
Because
non-majoritarian public bodies are generally seen as unnecessary intermediaries
between the government and the people, anti-institutionalism can be
characteristic even of populist movements that are considered democratic.
As we have pointed out, this kind of mistrust tends to manifest itself primarily
against non-elected or anti-majoritarian institutions, in particular the
constitutional courts, supreme and ordinary courts, and other politically
neutral bodies such as election commissions or ombudsmen. Political attacks
and structural changes can also target different types of supervisory bodies
(such as media authorities, or economic competition authorities). This
can take place in a number of ways, from political pressure to packing the
institutions with loyal people, but here formal legal changes have special
significance.
Constitutional changes offer an effective framework for these efforts, and
populist governments in several countries have attempted to pass a new
constitution or substantially amend the existing basic law. In Venezuela, for
example, President Hugo Chávez convened a Constituent Assembly in 1999
to draft a new constitution, which was confirmed in a referendum in the
104 Bugarič and Kuhelj (n 19) 27, 69, Scheppele (n 33) 549.
105  Castillo-Ortiz (n 97) 49.
20  Zoltán Szente
same year, and in 2009 another referendum abolished the constitutional limitation
on presidential re-election. The same took place in Ecuador after the
election of President Rafael Correa in 2007. In Hungary, the MPs of the ruling
party coalition, which won a constitution-making majority in the 2010
general elections, voted for a new constitution in 2011, which has since been
adapted nine times in favour of the current political interests of the governing
parties. Russia and Turkey accomplished several constitutional reforms
in the 2000s that strengthened presidential power, while in Poland, without
formal constitutional amendments, significant structural changes were made,
including through parliamentary legislation which put the Constitutional
Court and the Judiciary under political control.
The lack of confidence in the existing institutional system naturally stems
from a populist political view that identifies public bodies with a corrupt
elite,106
but perhaps more weight is given to power interests, that is, to neutralizing
independent countervailing bodies and dismantling the system of
checks and balances.
As a matter of fact, what we have seen with anti-elitism also applies in this
respect: populists are not generally anti-institutional, for when they come to
power, they try to put public authorities at the service of their own ends.107
As Levitsky and Ziblatt claim, for autocrats, independent institutions are
both a threat and an opportunity, so they are transformed so as to serve as
an effective means of selectively enforcing laws, punishing opponents, and
protecting their own people.108
Institutional changes are therefore devoted
to strengthening the executive and occupying and weakening countervailing
powers.109
Overall, populist constitutions do not abolish the institutions of liberal
democracy but merely imitate their operation, as they do not work in accordance
with their original function but serve the interests of the authoritarian
government.110
1.4.3.1.4 ANTI-PLURALISM
There is also a broad consensus among scholars that populists are against pluralism,
considering themselves the only genuine representatives of the real
interests of the people.111
Most populist parties are critical of the ­functioning
of representative democracy and often question the legitimacy and role of
traditional parties.112
This is because, according to the populist political view,
106  Landau (n 59) 526.
107  Müller (n 31) 598; Müller (n 10) 39; Landau (n 59) 537−539.
108  Levitsky and Ziblatt (n 100) 78.
109 Chris Thornhill, ‘Constitutionalism and Populism: National Political Integration and
Global Legal Integration’ (2020) 12 International Theory 2.
110  Tóth (n 68) 52−53.
111  Mudde (n 8) 543; Müller (n 31) 593; Müller (n 10) 3; Bugarič and Kuhelj (n 19) 26.
112  Blombäck (n 13) 221; Urbinati (n 14) 113.
Populism and populist constitutionalism  21
the people are united and indivisible, with a clear and recognizable will, and
pluralism is a threat in their eyes to the real public interest.113
Anti-pluralism can be mere rhetoric, or in the constitutional sense it can
mostly mean the restriction of freedom of expression and other political
rights, the biased transformation of the electoral system, the obstruction of
the operation of opposition parties, and so on.
1.4.3.1.5 ILLIBERALISM
As has been said, the emergence of populist movements is often seen as a
challenge to liberal democracy, and their aspirations or views on the constitution
are frequently referred to by many as illiberal constitutionalism. This
is emphasized by many authors because this category is sufficiently broad to
include politicians and parties that are not anti-democratic114
within a populist
conception. Certainly, this definition is not acceptable for those who
identify democracy with its liberal form, supposing that populist constitutionalism
rejects, or at least limits, the system of checks and balances, judicial
review of laws, and in general any players with a veto which restricts the real
will of the people,115
because these guarantees are considered by many to be
essential requirements and accessories of modern democracies.
However, the populist form of constitutionalism can be considered anti-liberal
not only because of the rejection of power-sharing, but also because of
the limitation of the protection of minorities and individual rights, which follows
from the foundations of communitarian populism, according to which
the public interest and the general will of the people should take precedence
over individual and particular interests.
Both the dismantling of institutional barriers and the erosion of the rule
of law, as well as the restriction of the protection of minorities and individual
rights require constitutional-legal changes, as exemplified by populist constitutions
and recent constitutional developments in countries with populist
governments. Although there have been few or no examples of such institutional
changes in several Central and Eastern European post-Soviet states,
Poland’s and Hungary’s performance have deteriorated significantly in various
independent surveys, rule of law and corruption indices, and reports
of international human rights organizations since they have been ruled by
populists, while Russia, Turkey, and Venezuela have generally been classified
as consolidated autocracies.
1.4.3.2 Positive criteria of populist constitutionalism
Nevertheless, there are not only negative indicators among the criteria of
populist constitutionalism, denying or criticizing certain constitutional
113  Blokker (n 44) 543.
114  Fabbrizi (n 101).
115 Ibid.
22  Zoltán Szente
principles and institutions, but also positive criteria that offer a kind of
answer or solution to the perceived or real democratic deficit of liberal constitutionalism.
Some say, for example, that in Poland and Hungary, conservative
populists want to build an alternative, ‘counter-constitutional’ order to
replace liberal constitutionalism.116
Among these positive characteristics, those on which there is a broad consensus
can be considered ‘primary’ criteria, while others are ‘secondary’ features
that are attributed to populist constitutionalism by some academics but
do not have a general recognition in scholarship. Many of these criteria are
also closely related to and overlap each other, but it is worth separating them
for analysis and clarity.
1.4.3.2.1 POPULAR SOVEREIGNTY AND DIRECT DEMOCRACY
Populist constitutionalism arises with the claim to directly represent the ‘average
people’, that is, to enforce popular sovereignty.117
As the public interest
is uniform and can precisely be defined,118
the function of representation is
to implement it consistently and without hindrance.119
This is based on a
conception of popular sovereignty that sees the majority formed in elections
as the sole source of democratic legitimacy.120
Consequently, the people are the constituent power, not in the institutionalized,
indirect form as in liberal democracies, but as an imaginary entity
whose will is not limited by the existing constitutional order. In other words,
a populist interpretation of constituent power puts the rule of the people
above the rule of law,121
whatever that means.
Several authors point out that populists do not mean people in the empirical
sense, that is, the community of citizens, but that there is no longer any
consensus on what the constructivist conception of the people exactly signifies.
Some say populism identifies the people with the majority of the elector-
ate,122
but they can think of the sovereign in the abstract sense, the ‘ordinary
people’ or the nation123
(ethnic community), while the concept of people
often appears as a sort of mystical, homogeneous, and moral entity,124
a ‘collective
subject’ stuck together by tradition, common suffering, and destiny.125
116  Blokker (n 44) 542.
117  Ibid. 536−537.
118  Müller (n 10) 26; Corrias (n 94) 11.
119  Scholtes (n 17) 354.
120  Mueller (n 16) 1033.
121  Corrias (n 94) 9.
122  Mueller (n 16) 1036).
123  Mudde and Kaltwasser (n 15) 9.
124  Mudde (n 8) 546; Müller (n 10) 28.
125  Blokker (n 44) 542.
Populism and populist constitutionalism  23
Yet, references to ‘people’ may lead to different value choices, depending on
whether they are referred to in terms of plebs, demos, or ethnos.126
Some authors argue, however, that this reference to the people in terms
of an abstract and unified entity is merely rhetoric, and populism is in fact
a plebiscite conception of democracy in which the expression of the will of
the electorate is limited to participation in elections.127
Populists more often
than not consider the people to be a passive mass, and once the representation
of the genuine will of the people has taken place, there is no need for
further popular participation.128
In contrast, many authors argue that populism
is characterized by a preference for direct democracy over institutionalized
representation.129
In practice, the picture is very controversial. For example, while the Brexit
referendum, generally held to be a populist enterprise, brought about significant
political and constitutional changes in the United Kingdom, which
is traditionally averse to direct democracy, unrestricted populist governance
in Hungary confined the institution of referendum to serve governmental
interests.130
1.4.3.2.2 AUTHENTIC POPULAR REPRESENTATION
According to a significant part of the literature on populism, this political
ideology, style, or rhetoric is characterized by the claim to be an authentic
and exclusive representation of the people imagined in the aforementioned
sense.131
Populist parties differentiate themselves from other parties
by claiming that they represent the real interests of the people instead of
the elite,132
and they build their legitimacy on this base.133
It is clear that the
claim to authentically represent the people is a logical consequence of the
aforementioned anti-pluralism, and that populists have as little trouble with
126  Rogers Brubaker, ‘Why Populism?’ in Gregor Fitzi, Jürgen Mackert, and Bryan S. Turner
(eds.), Populism and the Crisis of Democracy. Volume 1: Concepts and Theory (Routledge
2018) 28.
127  Thornhill (n 109) 3.
128  Müller (n 31) 594.
129 Bugarič (n 16) 392; Bojan Bugarič, ‘Central Europe’s Descent into Autocracy: A
Constitutional Analysis of Authoritarian Populism’ (2019) 17 International Journal of
Constitutional Law 598, Fabbrizi (n 101), Chambers (n 93) 117, Corrias (n 94) 12, 19.
130  Since 2010, hundreds of referendum initiatives have been rejected by the Fidesz-controlled
NationalElectoralCommission,andonlyonenationalreferendum,initiatedbythegovernment
in an obviously unconstitutional manner, has taken place. See for this Zoltán Szente,
‘The Controversial Anti-Migrant Referendum in Hungary Is Invalid’ https://constitu-
tional-change.com/the-controversial-anti-migrant-referendum-in-hungary-is-invalid/.
131 Müller (n 31) 593; Gábor Halmai, ‘A Coup Against Constitutional Democracy. The
Case of Hungary’ in Mark A. Graber, Sanford Levinson, and Mark Tushnet (eds.),
Constitutional Democracy in Crisis? (Oxford University Press 2018) 253.
132  Corrias (n 94) 11.
133  Canovan (n 18) 4.
24  Zoltán Szente
representation if they are the representatives, just as political-administrative
elitism is not the devil’s work if they themselves make up the elite.134
The
almost natural consequence of this is the de-legitimization of the opposition,
the limitation of its resources, and the disregarding of its proposals and initiatives,
and the elimination of political discourse with the opposition parties.
Although the claim to be the authentic representatives of the people is
often only part of the communication of populist politicians and movements,
ample evidence indicates that in practice, populist governments, when they
have the opportunity, seek to consolidate their power using constitutional or
legal means. There are several ways to do this. Whereas government control
of the media, widespread patronage, smear campaigns against the opposition,
and their delegitimization are basically elements of the political toolbox,135
such efforts can be effectively facilitated by various legal techniques. For
example, biased intervention in the electoral system to provide illegitimate
advantage for the governing parties over the opposition can most effectively
be achieved through constitutional and legal reforms.
In the populist mindset, the authentic representation of the people also
legitimizes the desire to see the one-time election victory – that is, the
populist parliamentary majority – as a permanent but at least long-lasting
mandate, so that later general elections become mere electoral approval of
government policy.136
1.4.3.2.3 EXTREME MAJORITARIANISM
Populist constitutionalism can be characterized by the absolutization of the
majority principle as long as the ‘right’ parties have won the election.137
This
majoritarian conception of democracy regards electoral empowerment as an
expression of the will of the people and, on that basis, rejects the constitutional
restriction of power.138
This vision looks at politics as a zero-based
struggle for dominance between political adversaries, claiming that only
parties or politicians that have won a majority in elections can legitimately
participate in political decision-making.139
This idea may justify weakening
non-elected controlling institutions, rejecting any veto of majority decisions
based on legal or constitutional considerations, and ultimately contrasting
the majority principle with the rule of law.140
Here again, the repudiation of
134  Müller (n 10) 30.
135  Landau (n 59) 199; Mueller (n 16) 1037, 1041.
136  Müller (n 10) 63; Mueller (n 16) 1041.
137  Blokker (n 44) 543.
138 Landau (n 59) 533; Mudde (n 8) 561; Mueller (n 16) 1035; Scheppele (n 33) 562;
Urbinati (n 14) 113.
139  Mueller (n 16) 1036.
140  Fournier (n 16) 366.
Populism and populist constitutionalism  25
pluralism can be observed, as it considers the actual governing majority as a
permanent one rather than a result or outcome of the continuous political
struggle between rival parties, and it is reluctant to recognize minority interests’
need for protection against the will of the majority.141
In reality, this does not mean a total denial of the protection of minorities
or individual rights, but it does mean that these rights, depending on the
weight of the presumed or real community interests, can be restricted to
a much greater extent than in the practice of consolidated constitutional
democracies.
1.4.3.2.4 THE STRONG LEADER (PERSONIFICATION OF POWER) AND THE
STRENGTHENING OF EXECUTIVE POWER
Another widely recognized feature of populist constitutionalism is the concentration
of power in the hands of a charismatic, strong leader.142
Populists
such as the American Donald Trump, the Russian Vladimir Putin, Recep
Tayyip Erdoğan in Turkey, the Venezuelan President Nicolás Maduro, the
Hungarian Prime Minister Viktor Orbán, and even the Polish Jarosław
Kaczyński, who is without any leading position in government, and the
French and Dutch opposition party leaders Marine Le Pen and Geert Wilders
are all allegedly claiming that they are the genuine leaders of their people
against corrupt elites.143
One of the characteristics of populist political leaders is that they differentiate
themselves from the traditional elite by not following conventional
forms of political behaviour in their politics or communication style,144
by
blending visions, and by flexibly alternating their statements and opinions.
They also need to do so because, in fact, they often belonged to the former
elite themselves, sometimes for decades,145
such as the aforementioned politicians
Orbán or Wilders; or Trump or Berlusconi, who belonged to the
economic elite before starting their political careers.
Constitutional law can also be an effective tool for centralizing power,
either by strengthening the executive (see, for example, the institutionalization
of Latin American ‘super-presidential’ systems or the Turkish presidential
system) or by neutralizing counterbalancing institutions or removing
re-election barriers (as occurred in several South American countries or in
Russia with the 2020 constitutional amendment).
141  Fontana (n 46) 365.
142 Bugarič and Kuhelj (n 19) 27; Drinóczi and Bień-Kacała (n 61) 1159; Landau (59) 539;
Müller (n 10) 33; Pappas (n 29) 71−72. However, some do not consider this, together
with some other criteria, to be a criterion for populism. See Kaltwasser (n 6) 68.
143 Bugarič (n 129) 598.
144  Blombäck (n 13) 220.
145  Fontana (n 46) 1502; Müller (n 10) 34; Mudde (n 8) 560; Peters and Pierre (n 91) 5.
26  Zoltán Szente
1.4.3.2.5 THE INSTRUMENTALIZATION OF LAW
As has been said earlier, one of the peculiarities of contemporary populism is the
recognition that the constitution can provide an effective toolbox for preserving
power and breaking down checks and balances, so populist regimes are characterized
by active constitution-making, as far as this is possible for them.
Nevertheless, the perception of law as an instrument of power itself is not
one of the openly acknowledged values of populist political ideology, although
in practice, this approach makes it easier to realize these values. Consequently,
we can identify it as a common feature of populist constitutionalism. This way
of thinking regards law on the one hand as a means of realizing political will,
and on the other hand as a necessary condition for the preservation of pow-
er.146
Besides this, in authoritarian populist systems, the formal legitimization
of political decisions and the maintenance of the appearance of democracy and
rule of law are important functions of the legal system.147
Constitutional changes provide particularly effective opportunities for all
this, provided that the populists are able to enforce their perception of the
role and normative nature of the constitution. This is because constitutional
changes override all previous rules and can have a lasting effect. At the same
time, in a case in which the aim of the constitution-making is to radically
change the political system and to consolidate governmental power, the
function of the basic law will change significantly: it will be no longer a guarantee
of the status quo, but an engine of transformation. This necessarily
conflicts with the normative and permanent nature of the constitution, not
only where populists have the opportunity to amend the constitutional text
as they wish (such as in Hungary, Russia, or Turkey), but also where – in
the absence of a constitution-making majority – they achieve the same effect
through the reinterpretation of the constitution (as in Poland).
Some scholars point out that the legalization of political decisions, regardless
of their content, merely formally upholds constitutionalism; that is, it
actually only imitates legality.148
For this purpose, populists actually adopt
‘pseudo-’ or ‘façade constitutions’149
which, instead of restricting power,
help to secure and perpetuate the power of populists, and with which autocrats
disguise the true character of the system. And while many researchers
on populism note that populist regimes carefully maintain formal legalism, in
reality they very often circumvent or simply ignore their own constitution.150
146  Blokker (n 44) 545; Landau (n 59) 532; Müller (n 10) 63; Müller (n 31) 598.
147  Tóth (n 68) 52.
148  Levitsky and Ziblatt (n 100) 77; Scheppele (n 33) 573.
149  See Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) 56 American
Political Science Review 853, 861; David S. Law and Mila Versteeg, ‘Sham Constitutions’
(2013) 101 California Law Review 863−952; and Tóth (n 68) 51.
150  Walker (n 35) 520.
Populism and populist constitutionalism  27
1.4.3.2.6 OTHER (SECONDARY) CRITERIA
These ‘secondary’ criteria are often specific to certain regions or countries,
or only to populist politics associated with specific ideologies, or deserve to
be mentioned precisely because of their constitutional significance.
One of these characteristics is the preference for the concept of constitutional
identity. Some argue that populists aim to define and defend the
identity of the community,151
or to set in stone their own image of the peo-
ple152
through constitutional changes. Moreover, constitutionalization can
be a means of giving the nation a nationalist and religious concept and thus
supporting authoritarian intentions.153
The background motivation can be
to symbolically strengthen the political unity of the people (or the supporters)
and, through this, to legitimize populist governance,154
despite the fact
that, according to experience, the values included in the constitutions do not
usually contain the real popular values.155
The legitimacy of populist rule is also supported by the abusive legal borrowing
of certain legal institutions or procedures; more precisely, the way of
argumentation which justifies some controversial constitutional-legal solutions
by the fact that they also occur in consolidated democracies. These
regimes frequently refer to the institutional patterns of developed Western
democracies156
and object to the ‘double standard’ that is used by those
who criticize the populist institutional and legal reforms. Indeed, there are
examples of almost all of the institutional settings brought about by populist
regimes in consolidated democracies, but they meet the requirements of the
rule of law individually and not as a whole.157
The use of foreign patterns
taken out of their context leads to a ‘Frankenstein state’ that ‘is composed
of various perfectly reasonable pieces, and [whose] monstrous quality comes
from the horrible way that those pieces interact when stitched together’.158
Some scholars also specify crisis management as a source of legitimacy for
populism because an external threat gives populists the opportunity to legally
break free from the limits of power.159
In Turkey, for example, the failed coup
in 2016 provided an opportunity for the government to impose repressive
measures, followed by the introduction of a presidential system in 2017 with
a referendum strengthening President Recep Tayyip Erdoğan’s power, while
151  Blokker (58).
152  Müller (n 31) 603; Corrias (n 94) 23.
153  Halmai (n 68) 310; Cesare Pinelli, ‘The Rise of Populism and the Malaise of Democracy’
in Sacha Garben, Inge Govaere, Paul Nemitz (eds.), Critical Reflections on Constitutional
Democracy in the European Union (Hart 2019) 42.
154  Thornhill (n 109) 2; Walker (n 35) 522.
155  Mila Versteeg, ‘Unpopular Constitutionalism’ (2014) 89 Indiana Law Journal 1137.
156 Rosalind Dixon and David Landau, ‘1989–2019: From Democratic to Abusive
Constitutional Borrowing’ (2019) 17 International Journal of Constitutional Law 493.
157  Mark Tushnet, ‘Varieties of Populism’ (2019) 20 German Law Journal 386.
158 Kim Lane Scheppele, ‘The Rule of Law and the Frankenstate: Why Governance
Checklists Do Not Work’ (2016) 26 Governance 560.
159  Levitsky and Ziblatt (n 100) 93.
28  Zoltán Szente
in Hungary the outbreak of the coronavirus pandemic in 2020 led to the
declaration of an emergency situation providing an unlimited authorization
for the Orbán government, the most important elements of which were later
enacted, i.e. perpetuated, by the two-thirds parliamentary majority of Fidesz
after the end of the special legal order. Some authors presume that populists
sometimes invent or exacerbate a crisis situation themselves because citizens
are more tolerant or even supportive of authoritarian measures in times of
crisis that threaten their security.160
Populism usually does not emerge in stable,
orderly conditions, which is also the reason why populist governance is
said to be difficult to maintain in the long run, or after normalcy returns.161
Among the operational characteristics of populist, illiberal states, the restriction
of certain fundamental rights, as well as the intolerance of or discrimination
against certain minorities, can be highlighted. This usually affects political
rights, especially freedom of expression, academic freedom, and the right of
assembly and association. Presumably, the more authoritarian a populist system
becomes, the more likely it is that personal freedom will be restricted.162
Negative campaigning, and direct and indirect discrimination against Roma,
immigrants, LGBTQ communities or certain religious ‘sects’ that do not
belong to the people or endanger their culture and identity, are also frequent
phenomena. These actions may not only be taken through political or
administrative measures, but they may also gain a legal-constitutional basis
through legal preference, for example, for the traditional family model, the
discriminatory regulation of the status of churches and NGOs, or the tightening
of certain fundamental rights restrictions.
These manifestations of ‘nativism’ are often associated with anti-globalism,
insofar as populism is hostile to all ‘foreign’ political values because it sees
them as a threat to national sovereignty or to the true will of the people. In
populist rhetoric, this threat is most often represented in Europe by the EU
institutions and the European courts, but the alleged evidence of the threat
can be, for example, EU immigration policy or criticisms from international
organizations (interpreted as attacks on ‘Hungarians’, ‘Poles’, or ‘Turks’). It
is important to add, however, that some views also see progressive political
tendencies (such as the Greek Syriza Party) which are not characterized by
anti-liberalism and nativism, as populist.163
Clientelism, state capture, and the ‘Gleichschaltung’ of certain social systems
(putting them under direct political control), which are also characteristic
of populist governments, require the use of legal instruments as well.
160  Levitsky and Ziblatt (n 100) 94, 208; Müller (n 10) 43; Blombäck (n 13) 223.
161  Paul Taggart, ‘Populism and the Pathology of Representative Politics’ in Yves Mény and
Yves Surel (eds.), Democracies and the Populist Challenge (Palgrave MacMillan 2002) 69.
162 See e.g. Sadurski (n 51); Sadurski (n 87) 268−270; Tóth (n 68) 54; Bugarič (n 129)
607−608.
163 Robert Howse, ‘In Defense of Disruptive Democracy − A Critique of Anti-Populism’
(2019) 17 International Journal of Constitutional Law 643. Howse defines populism as
any action against the elitist policies of advanced liberal democracies. Ibid. 641.
Populism and populist constitutionalism  29
According to some authors, the systematic patronage, clientelism,164
and the
‘colonization’ of the state – that is, the ‘occupation’ of the most important
institutions (filling them with politically loyal people) – are features
of populism.165
In a sense it is not surprising, because if populists consider
themselves to be the only true representatives of the people, it is justified to
take possession of public institutions and to take action against those who
obstruct the pursuit of the genuine public interest.166
It is to be noted, furthermore,
that the power ambitions of populists are not limited to political
institutions, but are also aimed at influencing certain social sub-systems, as a
consequence of their identity-based ideology. This can be manifested by stigmatizing
the politically suspicious non-governmental organizations, restricting
their operation, interfering in the scientific and artistic sphere and in the
system of public education, for which legislation provides opportunities, as is
also the case in the often statist, protectionist economic policy.
Whatever combination of the aforementioned primary and secondary criteria
of populist constitutionalism is achieved in a country, it is sure that
they raise a significant challenge to traditional representative government
and liberal constitutionalism. And if they have, or may have, such an important
effect on the functioning constitutional systems, then it can be rightly
assumed that this influence extends to the methods of constitutional interpretation
and, of course, to its outcome. However, in order to assess this
effect, it is necessary to clarify the nature and definition of the constitutional
interpretation which is as controversial as the concepts of populism and populist
constitutionalism themselves. It is discussed in the next chapter.
164  Müller (n 31) 597; Pappas (n 29) 72, 74.
165  Pappas (n 29) 73; Landau (n 59) 200.
166  Müller (n 31) 596.