Populist Constitutions

15 Pages Posted: 16 Oct 2017

See all articles by David Landau

David Landau

Florida State University - College of Law

Date Written: October 1, 2017

Abstract

This essay draws on recent academic definitions of populism and recent examples of its use in order to show that there is an affinity between populism and widespread constitutional change. It argues that populists use constitutional change to carry out three functions: deconstructing the old institutional order, developing a substantive project rooted in a critique of that order, and consolidating power in the hands of populists. Thus, access to the tools of constitutional change may accentuate both the promise of populism as a corrective to stagnating liberal democracies, and the threat that it poses to those constitutional orders. I also argue that there is a trajectory to populist constitutionalism: populist constitutions begin by emphasizing their promise to improve upon existing liberal democratic constitutional orders and obscuring their underlying consolidation of power, but if populists are able to maintain power for long periods of time they will likely become overtly illiberal, arguing that their substantive goals cannot be met within the confines of liberal democracy. This suggests at least two separate agendas: one that prevents the forms of constitutional change that allow populists to mold the constitutional order so that they become difficult to dislodge, and a second that makes a stronger affirmative case for the virtues of liberal democracy.

Keywords: Populism, Constitutionalism, Authoritarian Constitutionalism, Democratic Erosion, Democratic Backsliding, Constitutional Change

JEL Classification: K10

Suggested Citation

Landau, David, Populist Constitutions (October 1, 2017). 85 University of Chicago Law Review, 2018, Forthcoming; FSU College of Law, Public Law Research Paper No. 861. Available at SSRN: https://ssrn.com/abstract=3053513

David Landau (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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