THE PEOPLE AGAINST THE CONSTITUTION.

Author:Huq, Aziz Z.
Position::Book review
 
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WHAT IS POPULISM? By Jan-Werner Muller. Philadelphia: University of Pennsylvania Press. 2016. Pp. 103. $19.95.

INTRODUCTION

As the twenty-first century staggers into its adolescence, a specter haunts its liberal democracies. The new century was famously supposed to mark an "end of history," an age in which liberal democracy would congeal, inexorably and glacier-like, into a global, hegemonic plateau. (1) Instead, the new century has proved convulsive, angry, and pregnant with fearful uncertainty, even though it has not yet been punctuated by the world wars that convulsed its precursor. Whether it is slouching toward global catastrophe, or redemption, remains a live question on which reasonable minds can disagree.

Why has our century proved so febrile? One obvious candidate cause is political violence. The new century has been tragically striated by international terrorism, which took on new forms and political salience in the wake of September 2001. But liberal democracies have faced intensive terrorism threats from overseas since the early 1970s. (2) Even if today's specter may be accelerated by public anxiety about terrorism, (3) it cannot be reduced to the fear of political violence.

A more consequential specter has instead emerged from within. For in the first decade of the twenty-first century, a distinct form of political mobilization has simultaneously and unexpectedly emerged in several more or less entrenched democracies. In Washington, Warsaw, Caracas, Budapest, and Ankara, a political movement, party, or leader has seized the commanding heights by deploying political strategies or claims that can loosely be denominated as "populist" (although that label is rarely embraced by those to whom it is affixed). And even when populism falters at the polls, it can score destabilizing policy victories, as the surprise outcome of the British referendum on European Union membership demonstrates. In either case, populism as movement or governance repudiates some or all of the values and institutional commitments underpinning liberal democracy. Commitments that once seemed secure, unquestioned, and even hegemonic suddenly are publicly scorned and ridiculed as alien and unwelcome impostures.

All this is obvious. But what exactly is "populism"? The question is more perplexing than it seems at first blush. To the extent populism is often characterized as a "style," (4) it can seem elusive and subjective. Further, the term appears to encompass campaigning or governing in a way that claims the authority of the people. But to the extent the term sweeps in political movements or institutional arrangements that purport to vocalize "We the People," it might cover almost any kind of democratic politics. This provides little analytic clarity. It also fails to capture the sense of novelty in recent developments. For example, in the United States, conjuring the "people" in political rhetoric has never been the preserve of one racial or social class. It rather evinces some "idealistic discontent that did not always obey demographic borders." (5) But movements identified as populist today often isolate a single ethnic or racial group as "the people," either implicitly or explicitly, in a deeply exclusionary manner.

Nevertheless, it will not do to reject the concept out of hand. A set of recognizably parallel political strategies has yielded striking political developments, such as the 2016 Brexit and U.S. election surprises, the near-victories of the Front National in France in 2017, and the Freiheitliche Partei Osterreichs in Austria in 2016. (6) It is thus hard to deny that something distinctive is at work within contemporary democracy, something that should engage students of constitutional democracy in particular.

Legal scholars, and in particular constitutional law scholars, are only beginning to grapple with the idea of populism and its implications for the range of normative ends public lawyers typically pursue. It would be regrettable indeed if constitutional scholars, whether focusing on the domestic American context or applying a comparative lens, ignored the rise of populism. The phenomenon presents a legion of new questions about the vitality, feasibility, and future of what otherwise might have seemed fixtures in the constitutional firmament--among them, the centrality of competitive elections to the constitutional form, the (contested) ideal of the rule of law, the primacy of judicial review in constitutional enforcement, and the force of individual rights. Populism calls all of these apparent bedrock principles into question. The threat to the constitutional predicates of liberal democracy from this new style of politics may be either more or less grave. Some elements of current constitutional dispositions may be exposed whereas others are sheltered. But without a vocabulary for designating the basic dynamics of populism, and thereby plotting its potential repercussions, legal scholars are bereft of basic, albeit needful, analytic tools for estimating the threat's magnitude and implications.

This Review frames populism as a problem for public law scholars in general and American constitutional scholars in particular. Its focal point is a monograph entitled What is Populism? by Jan-Werner Muller, (7) a text that provides perhaps the most resonant recent theoretical introduction to contemporary populism. Muller sets forth a succinct and generalizable account of the basic internal logic of populism as a strategy for both mobilizing public sentiment and also deploying the levers of state power. He defines "populism" as a coherent political strategy based on a "moralistic imagination of politics" as a Manichean confrontation between a morally purified "people" and a corrupt and irremediable "elite" (pp. 19-20; emphasis omitted). As I explain below, Muller's approach conflicts with other scholarly definitional efforts in illuminating ways. Set in the wider intellectual context, his monograph provides an effective fulcrum with which to dissect the complex relationship between populism and liberal constitutionalism in its American variant.

Building on Muller's account of populism, I sketch three ways in which core elements of that account raise fresh challenges and questions about American constitutional law. First, it is worth asking whether populism as it manifests today is consistent with the purpose and design of political representation by the national institutions fashioned in the Constitution. Second, populism calls into doubt important norms of legality upon which systemic constitutional stability rests. Third, Muller's definition of populism engenders serious challenges to traditional understandings of whether and how individual constitutional rights can be vindicated. To the extent one perceives a new efflorescence of populism in national American politics--and there is ample evidence, somewhat on the left and increasingly on the right, to support this perception--the development presages an embarrassment of novel analytic, prescriptive, and normative questions for American constitutional scholars. For ordinary citizens who stand outside the scope of the populist project, the prospect of populist rule bodes ill for stability, legality, and the preservation of rights related to equality and democratic participation.

In Part I, I begin by situating Muller's analysis and reconstruction of a theoretically coherent account of populism as a political form in the larger context of political-theory work on democracy and populism. In particular, I contrast Muller's definition with its competitors in the political-science literature. In Part II, I deploy Muller's theorization of populism as a platform to identify three implications of his analysis for U.S. constitutional law sketched above. This is an exercise in diagnosis, and the question of how to remedy populism's pathologies must await another occasion given the limits of the essay form.

  1. THE DIFFICULTY OF DISCERNING POPULISM

    1. Varieties of Populism

      Talk of "populism" is hardly new. To the contrary, the term can be used to capture a range of historical phenomena across a widely dispersed geographic range. Mapping this range clarifies the challenge of identifying a workable definition of populism, as opposed to "a map of the linguistic dispersion that has governed the uses of the term 'populism.'" (8) The result, as Muller notes with worry at the opening of his monograph, is that "we seem to lack coherent criteria for deciding when political actors turn populist" (p-2).

      A history of populism might start with the early nineteenth-century European reaction to increasing commercial and social cosmopolitanism that stressed "spiritual superiority," ethnic identity, and cultural nationalism. (9) In the United States, it is possible to affix the label "populist" to national movements such as Andrew Jackson's Democratic-Republican party in the 1820s and 1830s, the Know-Nothings of the 1840s, and the Populist Party of the 1880s. Even within a singular national context, variation, rather than continuity among so-called populists, dominates. Hence, the Know-Nothings are centrally identified by their ugly polemics and actions against Catholics, East Asians, and immigrants of all stripes. (10) The more agrarian and egalitarian populist movement demanded redistribution on the ground that "[w]ealth belongs to him who creates it" (11) but lacked the consistent bile of its Know-Nothing precursors. Still, they were a "grass-roots revolt against the elite or plutocrats." (12)

      A "modern form of populism" is traceable to General Juan Domingo Peron's Argentina (1946-1955), which was to prove a model for subsequent Mexican and Brazilian leaders in short order. (13) In Western Europe, aversion to the actions of fascist governments before and during World War II dampened the appeal of far-right parties, slowing the rise of populism in most contexts. (14) Political movements...

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