The Populist Assault on the Constitution

Populism is widely imagined and analyzed as a sceptical force in constitutional democracy. Populism is understood as a disruptive phenomenon, contesting constitutional rules, the rule of law, and the separation of powers. The chapter contributes to the conceptualization and analysis of the populist phenomenon in relation to modern constitutionalism. The intention is to bring out not only the disruptive dimension of populism and its reactionary nature (with regard to liberal constitutionalism) but equally to highlight the alternative approach to constitutionalism populism represents. The chapter seeks to ‘deconstruct’ populism in its relation to constitutionalism. In the first part, the chapter discusses a distinct number of interrelated and legally relevant dimensions of populism. First, it argues that the promotion of majoritarianism constitutes the populists’ main relation to the constitution. The united People, in the form of a political expression of a substantive and durable majority, is the main inspiration for populist democracy, in strong contrast to the liberal ideas of inclusive consensus, pluralism, interest representation, and minority protection. Second, populists portray an instrumentalist, political, and ad hoc relation to the law. Third, populist constitutionalism is deeply sceptical with regard to the formalistic, positivistic approach to the law in liberal constitutionalism. In the second part of the chapter, populist tendencies in the relation to constitutionalism will be explored in the context of the Italian ‘season of constitutional reform’ (which started in the early 1990s). The analysis will regard the constitutional politics, and modes and procedures, of two reform processes in particular (Berlusconi’s and Renzi’s attempts at reform in 2005–6 and 2014–16 respectively) as well as the terms of the substance of reforms, regarding issues of strong leadership, the reduction of checks and balances, and the simplification of politics. Three dimensions in the two constitutional reform processes will be highlighted: a partisan/majoritarian dimension, an emphasis on instrumentalism, and a sceptical view towards liberal understandings of the law. In the concluding remarks, similar dimensions will be briefly explored in relation to the current populist government of the Lega and the Movimento Cinque Stelle (M5S or ‘Five Star Movement’)