Academic journal article Michigan Law Review

The People against the Constitution

Academic journal article Michigan Law Review

The People against the Constitution

Article excerpt


WHAT IS POPULISM? By Jan-Werner Muller. Philadelphia: University of Pennsylvania Press. 2016. Pp. 103. $19.95.


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 оÖsterreichs 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. …

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