I. Introduction
The rise of populism in national as well as international politics is a multifaceted phenomenon. However, contemporary scholarship mainly addresses the crisis of political representation as the key facilitator behind the emergence of populism.Footnote 1 Scholars who support this view argue that the institutional system is blind to the claims, necessities, interests, and discontents of people. This crisis infects both Western countries with strong democratic institutions and those with weak democratic institutions. Nevertheless the root cause of this crisis varies from country to country. Different contexts and conditions give rise to different kinds of popular claims which traditional political parties are leaving unattended. In the European context, for instance, populist parties have put issues like national identity, immigration and multiculturalism at the centre of the public debate;Footnote 2 whereas in Latin America, they frequently allude to issues related to economic or other mismanagement that concern historically disadvantaged groups.Footnote 3 The commonality behind different root causes of the crisis is government’s lack of responsiveness to citizens’ demands and interests. This creates political space to mobilise anti-elite or anti-establishment popular sentiments.Footnote 4
Some scholars refer to this as a dilemma of representative democracy that compromises the principles of liberty and equality, which are essential to democracy. As Zilla explains, representative democracy brings with it two differentiations. On the one hand, a vertical difference between rulers and constituencies that allows inequality in access to political power and the risk of tyranny by the ruling minority. The author calls this ‘the dilemma of incongruity’ that can be attenuated by introducing power control and power dispersion mechanisms.Footnote 5 On the other hand, a horizontal differentiation exists between preferences that are strongly represented (or considered in the decision-making process) and those that are only weakly represented (or not considered at all), with the risk of tyranny by majority will. In this last sense, ‘from the perspective of those citizens whose preferences might not be included in the process of policy-making but who are nevertheless bound to or affected by political decisions, representative democracy might resemble heteronomy’.Footnote 6 Zilla calls this ‘the dilemma of disparity’, which can be reduced by protecting minorities, enhancing pluralism, diversifying representation, and fostering participation. Nevertheless, it can be the case that the more strongly represented preferences were not even the majoritarian ones.Footnote 7
These dilemmas of representative democracy are rhetorically solved by populist discourse. The first dilemma in its problematic realisation (as when it generates a crisis for representative democracy) facilitates the populist discourse. Populists promise to rule in favour of ‘the people’, considering preferences that were ignored before, ‘solving’ in that way the second dilemma and, together with it, recovering the lost principles of liberty and equality for democracy.Footnote 8 In this sense, democratic deficit nourishes populism; the vague substance of populism tends to take advantage of the discursive potentialities of exclusion.Footnote 9 Populism therefore urges public law to revisit and rethink institutional designs.Footnote 10 In contemporary times, it is essential to discuss the roles of participatory systems and the institutional interfaces between political representatives and the people.
This is one of the tasks of public law. But how can it be accomplished? It is possible to identify two different approaches to this question, which are not mutually exclusive.Footnote 11 On the one hand, some scholars present what I call a ‘reactive approach’ to populism. As an intuitive response, they propose to hamper popular participation by avoiding plebiscites, referendums, or any other kind of public engagement.Footnote 12 The idea is to close the political (and constitutional) system in order to protect it from backlashes or populist attacks. In this approach, Constitutional Courts and judicial review play a crucial role.Footnote 13 On the other hand, it is possible to respond to populism from a ‘structural point of view’. This approach considers that the emergence of populism has its roots in the multifaceted crisis of political representation which has identifiable institutional correlates.Footnote 14 Hence, to resist populism, public law should take into account the lack of responsiveness and accountability of representative systems. This article puts forward a proposal in that direction; it advances a response to populism in the form of new institutional design that generates strong participatory mechanisms to appropriate ‘the popular’. In this manner, public law can repair (and occupy) the cracks that allow the discursive strategy of populism.
The structure of the article is as follows. First, I characterise some aspects of populism. Then, I analyse certain particular features that can emerge from the attempt to constitutionalise populism. I refer to this phenomenon as ‘constitutional populism’. Second, I address the question of ‘what should public law do in response to populism’ and critically explore the ‘reactive approach’ to preliminarily conclude that this strategy alone is deficient and gets us nowhere. I instead suggest, thirdly, a structural approach to populism which aligns with popular constitutionalism. Thus, I propose a conceptual distinction between popular constitutionalism and constitutional populism. I argue that constitutional law should focus on the creation of inclusive and interdependent institutions based on the idea of participation. This idea of participation should go beyond the functions of expression and political legitimisation; rather it should focus on the aspects of deliberation, shaping power, and control.Footnote 15 Finally, I use new Latin American constitutionalism (NLC) as an example of possible reactions/responses before a deep crisis of representation in two different ways. On the one hand, the NLC can be seen as configuring clear cases of constitutional populism. On the other hand, it tried to introduce arrangements of popular constitutionalism that allow facing systematic exclusion and strengthening democracy. In the wake of rising populism, this article contributes to the existing scholarly debate by critiquing populism and its constitutional expression and advancing arguments in favour of popular institutional systems.
II. The challenge of populism
Populism is a contested concept,Footnote 16 difficult to comprehend outside of its contexts.Footnote 17 Its democratic affiliation is widely debated, although most scholars believe that populism is democratic but refers to a borderline Footnote 18 or disfigured Footnote 19 case of democracy. It is also agreed that it is in obvious tension with liberalism and the principles of constitutional democracy, since these emphasise restrictions on State power and the protection of minority rights. Both of these aspects limit majoritarian rule, which is preponderant in the case of populism.Footnote 20 In light of this, it seems difficult to talk about constitutional populism without structuring a quasi-oxymoron.
Beyond these definitional difficulties, we may notice certain distinctive features in populisms.Footnote 21 For example, it is possible to see a distinction between ‘the real People’ as a sociological unityFootnote 22 reflected in the majority and the corrupt ‘elite’, represented by the minority.Footnote 23 Hence, the polarisation of politics (through a dualistic and antagonist simplification: friend/enemy)Footnote 24 and a critique of pluralism are common characteristics.Footnote 25 Another key feature is detachment from some procedures typical of constitutional democracies under the pretext that they complicate or distance politics from the people and hinder the realisation of the popular will (which does not require intermediations).Footnote 26 We also find a particular concept of representation unmediated by institutions but based on the concept that the leader knows what the homogeneous people want.Footnote 27
This has negative consequences for the exercise of political power such as verticality, lack of accountability, and the problem of ending terms/succession of power. However, a possible positive role for populism is preserved because it can still manage to include marginalised sub-sectors of society in political life through distribution of social welfare and somehow recover the ‘broken promises’ of democracy for the people.Footnote 28 As mentioned before, this last characteristic can be a possible explanation of the rise of populism over the world.
Populism can develop a constitutional strand that would be called ‘constitutional populism’. Adding the adjective constitutional to the term populism implies a change of perspective, which in my opinion relates with the possibility of institutionalising populism that initially seemed contradictory in its own terms. In this way, some scholars discuss an attempt to institutionalise the populist discourse within a stable set of politics or democratic institutions. In other words, populism tries to institutionalise processes and practices capable of stabilising these populist regimes against internal or external threats.Footnote 29 The way to institutionalise is, precisely, through reforms to the constitution. This constitutionalisation of populist politics increases the difficulties of dealing with populism from (an internal) public law perspective.
Some scholars define constitutional populism simply as ‘the political attitude that seeks to rely on the reform of the Constitution to defend interests and aspirations of the people and meet their immediate demands, without having a long-term goal’.Footnote 30 It is difficult to see in this definition a real evaluation parameter of the so-called constitutional populism other than the one that describes claims to satisfy through constitutional means as immediate or short-term, provided it is easy to distinguish what those claims are and why they should not be worthy of consideration. A greater effort should be made to define this new category that does not address the interests and aspirations that reforms intend to satisfy, but (i) the forms and (ii) content of these reforms, and (iii) the opportunistic attitude of populists regarding the constitution. This last feature means that they appeal to it as a source of legitimacy when it supports their proclamations and they ignore or favour its reform when it represents an obstacle. Footnote 31
(i) Constitutional populism could be distinguished by the forms in which constitutional reforms are made. If the reform is top-down, that is if it acts on behalf of the people (popular sovereignty) but without their direct participation in the discussion of the reform or favouring participation only to sectors related to government authorities, it may be a populist reform.Footnote 32 This would also be the case if there is participation from different sectors but their dissenting opinions are silenced or ignored in the outcome or if they are subject to direct influence of the executive power.Footnote 33 In other words, we may recognise constitutional populism when participation of ‘the people’ is limited to plebiscitary effects. Plebiscitarian forms (and effects) of participation are singularised by the excessive emphasis on voting to ratify or legitimise the leader who acts on behalf of the people; this often takes place at the expense of other meaningful modes of participation.Footnote 34 In this sense, people do not define or construct the political alternatives; such initiatives reside outside and above their ranks, and popular subjects are vertically constructed around the figure of the leader rather than being self-constituted.Footnote 35
We must also pay attention to the amendment dynamic once the constitution has been modified. Thus, one must be sceptical of the government’s actions that lead to multiple and successive constitutional reforms carried out to reduce any difficulties it encounters, including those established in the clauses favoured by them.Footnote 36 Finally, we must also note the practice of replacing justices (or changing the institutional design of Courts) in the case of not being able to reform the constitution and/or having non-favourable interpretations for the government.Footnote 37
(ii) Regarding the content of reforms, constitutional populism, although institutionalised, reflects populism in its constitution. Populist constitutional clauses tend to relax controls on the government or increase the power of the executive. Certain examples of these are granting exception or legislative powers to the Executive, allowing re-elections, or frustrating any opposition, controlling the media, and intervening in autonomous entities.Footnote 38 In fact, focusing only on this aspect, some authors define constitutional populism as a category that refers to profound and multiple constitutional reforms that aim to transform only ‘the power of the President of the Republic, in countries where institutional design allows an excessive use of public prerogatives by the Head of Government’.Footnote 39
A second type of populist clauses can be found in the constitutional regulation of decision-making processes, which omit deliberative, horizontal and reflective foresights. This leads some scholars to consider specific to populist constitutions the idea of a plebiscitary, centralist and anti-parliamentary democracy, together with a communitarian vision of rights. This last feature would make it possible to condition the exercise and recognition of individual rights to achieve those collective goals whose interpretation is left to the State.Footnote 40 Although, in my opinion, this communitarian vision does not necessarily have to be in the constitution, it may take place in actual practice of populism regarding constitutions that have established classic liberal rights.
A third type of populist constitutional content ‘sets a number of highly specific policy preferences in stone’, excluding the possibility of future policy choices that would have been the agenda of day-to-day political struggle.Footnote 41 This kind of clauses can establish what is called an exclusive or ‘partisan constitution’, whose purpose is to perpetuate the regime’s power and goals even after losing an election.Footnote 42 One can see the difficulty of defining precisely what would be a populist reform in this vein. As Dixon argues, without substantive criteria, it is hard to distinguish constitutional clauses that, even if strongly constraining the scope for future policy change are legitimate, from those that are not.Footnote 43
Finally, populist constitutions cannot function without liberal democratic-type clauses since they need mechanisms of power legitimation and support of a constitutional discourse, although they are under strain.Footnote 44 Hence, even if constitutional reforms were to be institutionalised, (iii) constitutional populism makes an opportunistic use of their constitutions, which in any case will always be under the invoked popular sovereignty in permanent action. From this perspective, populism uses institutions as a means to obtain more power rather than to limit it, making ideological legitimacy prevail against procedural or constitutional legitimacy.Footnote 45 As Müller puts it, ‘populists certainly aren’t constitutionalists in a normatively meaningful sense’.Footnote 46 This is because, populism presents an ‘anti-institutional dimension, of a certain challenge to political normalization, to ‘‘business as usual’’’,Footnote 47 which makes it difficult to reconcile with constitutionalism.
III. The reactive approach
The recent peace process in Colombia could be seen as an example of this first approach. After the first Colombian peace agreement that resulted in a negative popular plebiscite, given the reported populist manipulation of the electorate,Footnote 48 a second peace agreement was negotiated solely by political elites with the consent of the Constitutional Court but without popular intervention.Footnote 49 The general reaction after the ‘plebitusa’Footnote 50 was to take away important political decisions from people. The people that supported ‘no’ were seen as emotionally influenced, irrational, or selfish, in a manner similar to those who voted for Brexit in the UK.
In this sense, some scholars try to think of different solutions, not limited to the Colombian case, in order to avoid populist trends or at least to lessen its consequences.Footnote 51 The institutional ally they find is constitutional or supreme courts.Footnote 52 If constitutionalism has two foundational ideas, one related to the protection of autonomy (limitation of power) and the other one related to guaranteed self-government (popular sovereignty),Footnote 53 facing the abusive expansion of the latter, judges could be seen as the natural defenders of the former.
In this sense, Arato has suggested that ‘[w]hen representation through elections fails, courts potentially yield a second democratic channel that becomes all the more important under a populist regime’.Footnote 54 In a more radical view, Issacharoff considers that in the current populist wave ‘the problem is not a rejection of democracy, but too much democracy’.Footnote 55 Therefore, he trusts courts to forestall this descent into dominant leader control in established democracies. Using the UK’s Supreme Court performance after Brexit as an example, the author asserts that courts should serve to reinforce the constitutional constraints necessary for democratic governance.
This kind of reaction is not new. As Müller explains, in Western Europe, the aftermath of the high point of totalitarian politics (National Socialism and Italian Fascism) was to direct the whole political development ‘toward fragmenting political power (in the sense of checks and balances, or even mixed constitution) as well as empowering unelected institutions or institutions beyond electoral accountability, such as constitutional courts, all in the name of strengthening democracy itself’.Footnote 56 That process was based on a great deal of distrust of popular sovereignty, being implicitly anti-populist, with also deep reservations about the idea of parliamentary sovereignty. This ‘constrained democracy’, as the author called it, was also the model followed by the European Union. As a result, the outcome is a political order ‘particularly vulnerable to political actors speaking in the name of the people as a whole against a system that appears designed to minimize popular participation’.Footnote 57
A similar argument is made by Bickerton and Invernizzi, who consider that ‘populism is a reaction against the growing technocratization of contemporary politics’. Hence, they criticise proposals like Rosanvallon’s, according to which ‘the transfer of political power to ‘‘independent authorities’’ drawing their legitimacy from their ‘‘impartiality’’ vis-á-vis social conflicts may provide a bulwark against (…) populism’, because for them ‘populism and technocracy cannot function as correctives for one another, since any increase in one or the other is likely to reinforce the underlying set of developments from which they both stem’, that is ‘the crisis of party democracy’.Footnote 58 For this reason, as it was pointed out, the reactive response to populism is self-frustrating. A structural approach focused on the creation of inclusive and interdependent institutions based on the idea of participation is more effective.
IV. The structural approach
From a structural point of view, the way public law should deal with populism is through a complete examination of the causes of its spread. It should be accompanied by imaginative thinking about alternative constitutional arrangements to prevent its possibility. It is not necessary to create new institutions; however, it is important to reconsider those we already have in a comprehensive manner.
Taking the ‘crisis of representation’Footnote 59 as the main problem to be dealt with, in this section I argue that popular constitutionalism (as a different category from the previous analysed ‘constitutional populism’) can be a useful starting point to advance alternative constitutional designs.Footnote 60 Popular constitutionalism emerges as an attempt to rescue the debate on the role of people in discussing and deciding constitutional issues.Footnote 61 In normative terms, popular constitutionalism advocates that ‘the views of ordinary people about constitutional meaning should play at least as large a role in constructing the nation’s constitutional understandings as do the views of elites, and especially the views of Supreme Court justices’.Footnote 62 Taking those concerns to the institutional level, popular constitutionalism promotes the idea of a flexible, not fully comprehensive, constitutionFootnote 63 and of an extra-governmental interpretation of it.Footnote 64 This aspect challenges judicial supremacy,Footnote 65 and in certain cases, even refutes any form of judicial review.Footnote 66 It also seeks a greater democratisation and participation in political and economic institutions,Footnote 67 and reaffirms the relationship between law and politics.Footnote 68
In light of this brief characterisation, it is possible to identify convergences and divergences between constitutional populism and popular constitutionalism. The first and fundamental convergence is that both preserve the role of popular culture, of ‘the people’, in political life, giving it a strong role. However, divergences can be grouped under three categories: (i) the notion of the people they support, (ii) how they propose to mediate the popular will,Footnote 69 and (iii) how the framers of the constitution conceive the idea of popular participation.
(i) While it was identified that populists see people as an ‘all-inclusive’ or a single unit,Footnote 70 the opposite occurs among supporters of popular constitutionalism, who see ‘people’ as a plural whole, with disagreements operating on a permanent basis and under equal conditions with other political actors. Thus, the ‘people’ for popular constitutionalists do not dissolve into a whole, but eventually express themselves when faced with specific conflicts and issues. They present their views and dissents through both their representatives and public opinion or social movements. In fact, as a social movement, one of the most important differences is that the ‘popular’ does not have a centralised leadership; it is ‘spontaneous’, and it is not organised so as to conquer political power at a governmental level.Footnote 71 That is, it is a notion of plural and democratic people whose substrate is the individual and not an organic whole.Footnote 72
(ii) In regard to mediation of the popular will, as we saw ‘the people’ for populist are the ones who directly legitimate political institutions without further mediation other than their stated prevailing will. Here, it is more accurate to use the term ‘general will’ instead of popular will, in clear reference to Rousseau’s conception of the ‘capacity of the people to join together into a community and legislate to enforce their common interest’.Footnote 73 Thus, rather than a rational process constructed via the public sphere, the populist notion of general will – ‘which is always in the right and always works for the public good’Footnote 74 – is based on the unity of the peopleFootnote 75 and is equated to majoritarian will. In this sense, the people become ‘substantive’ as they go beyond elections and representation, vindicating a more spontaneous relationship and a direct consensus between them and the leader. In this manner, populists seem to assimilate popular sovereignty and governmental institutions.Footnote 76
This direct relationship leader–people, along with the transgression of regulated procedures, is done under an allegedly necessary rebalancing of the distribution of political power in favour of the majority. For this reason, some authors say that populism makes for a sort of ‘redemption politics’,Footnote 77 and find grounds to justify it.Footnote 78 However, while it is true that populism can have a democratising role, it can also have negative effects for democracy if it translates, as it often does, into proposals that replace representative institutions with plebiscitarian forms of participation.Footnote 79 The problem with these plebiscitarian forms is that although they may seem to empower the people, they actually give them the role of a passive and reactive ‘audience’, rather than that of political agents.Footnote 80
On the contrary, all those defined as popular constitutionalists focus on ‘mediating’ the popular will through institutions. They propose to change institutional designs to ensure that power does not remain in the hands of the judiciary, as they plead for a strengthened form of representative and social institutions. In this sense, Tushnet explains that popular constitutionalism neither advocates for direct popular referenda nor for plebiscitary democracy. However, it is a practice embedded in the structures of ordinary political contests, and in particular contests among political parties over fundamental questions of constitutional meaning. His ‘idealized image is of parties developing platforms on matters of constitutional import and seeking public approval of those platforms’.Footnote 81 However, it is possible to incorporate popular will beyond parties’ platforms through other institutional mechanisms.
To start with state institutions, at the legislative level, people can have an impact on decisions, for example, through law initiatives, public hearings,Footnote 82 the ‘empty chair’ institution,Footnote 83 and indigenous, women or other minorities’ quotas. At the judicial level, people can make themselves heard not only by being part of a judicial process or citizens’ juries, but by presenting amicus curiae, through public hearings, by participating in Justices appointments,Footnote 84 and through dialogic mechanisms.Footnote 85 At the executive level, it is possible to implement institutions like the recall or referendums initiated by the people. Other mechanisms that can mediate people’s claims and also improve inclusion are Ombudsperson’s institutions, participatory budgets, prior consultation of indigenous peopleFootnote 86 and, as some scholars propose, ‘mini public’ or ‘deliberative panels’.Footnote 87 In order not to perpetuate unequal social structures, participation mechanisms need to specifically target discriminated and excluded population groups so they don’t have to overcome socio-economic barriers by themselves. One of the ways to do so is by designing and allocating specific and differential rights to those groups.Footnote 88
In this way, popular constitutionalism pays attention to procedures and institutions, and not to content, precisely to enable a plurality of voices and understandings of fundamental political issues. Implicit is the idea of an ongoing discussion, of fallibility in decisions, and precariousness in the exercise of power. In this sense, all results are reviewable and the fact of being part of the minority today does not prevent one from becoming part of the majority tomorrow. Institutions, besides receiving voices and arguments, should also encourage a time of reflection and equality of political actors, whilst avoiding being counter-majoritarian. Accordingly Robert Post, for example, makes various proposals to strengthen chains of communication between elected representatives and public opinion through the active participation of people.Footnote 89
Meanwhile, populism challenges precariousness,Footnote 90 since the populist government is the government of the people. This way, the possibility of other existing majorities in the future is not considered, with the only option being antagonism, i.e., the corrupt elite ruling against the people. This clearly goes against political representation as it denies disagreement rather than addressing it. As a result, it also compromises pluralism since diversity of opinion is seen as a transitory phenomenon that should be overcome by reaching a deeper unification of the masses, preferably under the guidance of a charismatic leader.Footnote 91
(iii) Finally, from the specific point of view of popular participation, while populism supports top-down mechanisms; popular constitutionalism upholds bottom-up mechanisms of participation. While populists support participation only as far as it serves to be expressive and it functions to legitimise politics,Footnote 92 allowing institutional design wherein centralisation of power gets along with popular participation without a lot of inconsistency.Footnote 93 In this sense, the possibility of equal access to political power is denied. In other words, the capacity to influence decision-making processes is closed for people. In clear contrast to the above, popular constitutionalism stresses deliberation, shaping and control functions of participation that tends to maximise people capacity to discuss and to form preferences and judgments on public affairs, encouraging equal access to power. The point here is to foster autonomous, horizontally-organised collective subjects at the grass-roots level in order to give such actors decision-making roles in public policymaking process.Footnote 94 These sort of participatory mechanisms work when organic and induced participation are combined and allow people to participate effectively.Footnote 95 This means that state institutions must recognise and incorporate previous organised local organisations to decision-making processes, and not only create bureaucratic spaces of participation.Footnote 96 In addition, ‘differential approaches’ to vulnerable groups must be incorporated as mandatory into participatory instances in order to guarantee the inclusion of their voices, respect of their rights to participation and equality, and to avoid the risk of reproducing existing social hierarchies.Footnote 97 This standpoint assumes that the community participates actively in all phases of public policy, providing necessary information and formulating proposals to design and execute the policy.Footnote 98 Therefore, the question is not just how much democracy is participatory, but also how democratic is participation.Footnote 99
Of course, considering only participatory mechanisms is not enough to solve inequalities that cause crises in representative democracies. A systemic and contextual view is needed to evaluate institutional designs. In this sense, attempts to immunise the democratic system against socio-economic inequalities are imperative.Footnote 100 For instance, it is essential to secure public funding for political parties and electoral campaigns, accompanied with strict transparency rules and limits of private financing of political campaigns.Footnote 101It is also important to regulate mass media in order to avoid communication monopolies or oligopolies and guarantee fair competition among ideas, values, and interests, so as to give everyone a chance to generate political impact. Simultaneously, non-institutional spaces of social deliberation, concertation, execution of public policies and control are needed, and this will be possible only with empowerment of civil society outside state institutions. Thereby, social protest has to be protected and guaranteed as a fundamental form of political expression. Other fundamental measures have to include public access to information, broad judicial legitimation (including collective actions), and affirmative actions to warrant equal access to rights for vulnerable groups.Footnote 102
To conclude, the extent to which popular constitutionalism arrangements foster autonomous and self-constituted organisation, providing citizens a role in government, the likelihood of success for populist parties will expectably diminish. In Roberts’ words, the stronger organised the civil society is, ‘the more difficult it is for any political leader to appropriate popular subjectivity from above for a personalist project’.Footnote 103
V. Some lesson from Latin American constitutionalism
It is possible to find in the constitutions of the NLC examples of both reaction and response to deep crises of political representation. In this section I analyse some features of the constitution of Venezuela and Bolivia to demonstrate how some of its provisions are clear examples of constitutional populism, but others can be identified as novel arrangements of popular constitutionalism. This will allow us to reflect on the potentialities and risks of these constitutional innovations with the intention of rethinking institutional designs in search of improving political representation.
Facing exclusive and illegitimate political systems, the constitutional processes of Venezuela (1999), Ecuador (2008) and Bolivia (2009)Footnote 104 were advanced with the stated purpose of solving the political and social marginalisation of certain groups (especially indigenous people),Footnote 105 as well as social inequality resulting from the application of neoliberal policies, particularly during the 1980s and 1990s.Footnote 106 Likewise, their purpose was to overcome the concept of a constitution as power limiting and to conceive it as a democratic formula where the constituent power expresses its will.Footnote 107 In this sense, the NLC has provided limitation of constituted powers, but the function that those limits fulfil serves as an organisational instrument to enforce democratic decisions.Footnote 108 This understanding conceives the constitution as a political law which is primarily concerned with its democratic legitimation.Footnote 109 Hence, constitutions empower: ‘they establish institutions which allow people to cooperate and coordinate to pursue projects that they cannot achieve on their own’.Footnote 110 Furthermore, constitutions of the NLC are full of symbolic language that envisions a future state that has to be constructed.Footnote 111
These constitutions have been considered to be clear cases of constitutional populism, as well as configuring novel arrangements of popular constitutionalism. At the level of its constitutional models, there are some commonalities with popular constitutionalism, especially because both are based on the idea of citizen participation, which is the heart of the institutional political system.Footnote 112 Participation goes far beyond the constituent act or the election of representatives, since it perpetuates along the constitutional texts in areas such as the popular, legislative, and constitutional initiatives or the approving, consultative, recall, and abrogative referendums.Footnote 113 It is also reflected in citizen control instances of public administrationFootnote 114 and in the recognition of forms of communitarian democracy developed by indigenous peoples.Footnote 115 Finally, participation is not limited to formal institutions, but there are also mechanisms of informal participation such as neighbourhood assemblies, open councils, accountability committees, and citizens’ observatories.Footnote 116 In short, we can find in the NLC an explicit willingness to ‘transcend elite constitutionalism towards a popular constitutionalism’.Footnote 117
However, other views of these constitutions cast doubt on the effectiveness of the one stated above. In this sense, some scholars emphasise that it is difficult to expect wide citizen participation when power is politically concentrated and territorially centralised.Footnote 118 These remarks, plus the political practice developed in recent years in these countries, allowed to describe Venezuela, Ecuador and Bolivia as cases of populism.Footnote 119 Thus, the instrumental use of legislation, the concentration of power in the executive, the destruction of institutions that generated some control, and the restrictions on certain fundamental freedoms (in particular freedom of speech)Footnote 120 have forced even the original advocates of the model to become critics.Footnote 121 In the cases of Venezuela and Ecuador, ‘people power tends to be invoked or cited, as an accompaniment or as acclamation, but not as autonomous power’.Footnote 122 In this sense, Negretto explains that amongst all mechanisms of citizen participation, the only ones that have become effective are those that have a purely plebiscitary and anti-deliberative impact, such as the ‘referendum’.Footnote 123
In light of this, should we conclude that the NLC is a kind of constitutional populism and reject it? The answer depends on the particulars of each case. As Noguera explains, there is a relation between the nature of the constituent subject (party, leader–mass or social movements) and the type of democracy or constitution that emerges from it.Footnote 124 Hence, it is possible to find important differences in the kind of participation supported by NLC constitutions that allows assessing them differently. In the following paragraphs, I discuss briefly some features of Venezuela’s and Bolivia’s constitutions as paradigmatic counterpoints.Footnote 125
In the case of Venezuela, the identification of the people/mass with the leader formed the constituent subject, which habilitated a highly majoritarian form of direct democracy.Footnote 126 The 1999 constitution had two effects: on the one hand, it weakened the legislative branch and transferred decision-making power to the executive. The constitution changed the traditional bicameral legislature to a unicameral called ‘Asamblea Nacional’ (National Assembly), which lost some authorisation power.Footnote 127 But, most importantly, the National Assembly lost its most fundamental functions: the legislative function and the check function over the executive.Footnote 128
On the other hand, the constitution established direct ratification power to the people, without any intermediation. So, participation was considered within a centralistic perspective,Footnote 129 wherein the leader is the architect of the people’s unity, with whom there is a hierarchical relation. In this approach, the source of the people is external and its unity fragile,Footnote 130 which makes it possible to talk about constitutional populism tout court. Although the Venezuelan constitution was inclusionary in its first moment and, it could thus be seen as a first step to overcome the so-called crisis of representation, it did not foster meaningful participation or group autonomy within the people. Hence, it became a personalistic political project of building and maintaining the power hindering the contestation dimension of democracy.Footnote 131 Unfortunately, Venezuela today can hardly be called a democratic regime. Electoral and judicial institutions are entirely captured and Maduro’s government has silenced and persecuted opposition, replacing politics by violence and militarisation.Footnote 132
On the contrary, the 2009 Bolivian constitution was founded on a different understanding of ‘the people’. They were not conceived of as an organic totality (as in Venezuela) but acted as a group of individuals, of struggles and social movements.Footnote 133 The constitution was written by a consortium of different social actors who were previously organised around struggles against exclusion and colonialism. Consequently, the institutional design was based on distrust towards the State and empowerment to social movements with specific recognition of rights to vulnerable groups. This allows decentralisation of power, self-management, and an appropriation of the public by people in a practice of permanent conflictual relation with the State.Footnote 134 As an example, in the second part of the Bolivian constitution there is an organisational function related to ‘participation and social control’ (Title VI) which – unlike similar functions in Venezuelan and Ecuadorian constitutions – is not institutionalised in any concrete authority. In 2013, the ‘341 Act on participation and social control’ was enacted granting the function to organic social actors (such as unions, neighbourhood meetings and other legally recognised actors), communitarian actors (such as indigenous people and nations), and circumstantial actors (included all those organised for a specific goal),Footnote 135 thus institutionalising channels for popular participation in government control.
The crucial component here is the social group’s autonomy that characterises the relationship between those in government and the citizenry.Footnote 136 This autonomy suggests access to political power and it is consistent with participatory ‘mechanisms by which citizens themselves have a direct role in government’.Footnote 137 For these reasons, the Bolivian constitution not only endorses the inclusiveness dimension of democracy, but also the contestation dimension.Footnote 138 As Roberts points out, in Bolivia ‘Evo Morales – unlike Hugo Chavez – has been repeatedly challenged not only by elite opponents, but also by organised popular constituencies that retain a substantial capacity for autonomous political expression.’Footnote 139 So, his leadership rests upon a different logic of political authority and mobilisation, which in fact, is ‘the very antithesis of populism’.Footnote 140
As a result, this constitution can be typified as an example of popular constitutionalism, whose enforcement is not monopolised by the State, but is shared with the people’s direct participation. Clearly this constitution is perfectible; however, it generates its own identity by serving as a basis for starting a strong, democratic project capable of further improvements. In brief, even if the constitutional reforms that gave rise to the NLC were massively supported,Footnote 141 they tried to respond to specific needs, and to generate normative constitutions that went far beyond the short-term goals;Footnote 142 thus the institutional outcome of each one is very different.
It is true that populism is not necessarily linked to the content of a particular constitution. Yet it is linked to the way political leaders exercise their power, leaders who can use the great majority’s support to avoid any obstacle and even constitutional provision that undermines their leadership. On the contrary, popular constitutionalism needs institutional frameworks that generate, support, foster and protect people involvement in public affairs and their access to political power. In any case, as Courtis and Gargarella point out, the achievement of the promises of a constitution depends on the proper functioning of ordinary politics.Footnote 143 In that sense, it is worth recalling that the enormous quantity and variety of populist experiences that have occurred in the world cannot be associated with any particular type of constitution but rather with the disdain for any of them. Now, insomuch as constitutional reforms flourish in order to re-elect such leaders indefinitely, increase their own power, ignore preset controls, and dismantle any opposition, so also can constitutions, such as Bolivia’s be transformed into constitutional populism. But still, it is possible to justify those arrangements if they improve social conditions for people, incorporate previous marginalised people into politics and are a necessary step to reinforce democracy.
To conclude, one could say that while there is an agreement regarding the idea that in their political practice the countries in question are populist, institutionally they mix an intention to realise the goals of popular constitutionalism, participation and citizen empowerment with constitutional populism’s provisions such as the concentration and centralisation of power, both of which are contradictory.Footnote 144 However, difficulties in assessing these new constitutions should not prevent us from upholding certain provisions and criticising others. Rejecting them for their populist developments makes us fall into a false dichotomy that ends up supporting the previously established deficient model. In short, not all popular is populist, and identifying them would only leave us with the elitist alternative.
VI. Conclusion
The importance popular constitutionalism gives to the people, to the decision of the majority to shape and control functions of participation and to social mobilisation, does not necessarily imply populist drifts. On the contrary, this institutional model can reinforce democracy, legitimise political decisions, generate inclusion, and avoid the appropriation of popular interest and values by populist discourses and leaders.
Populism has a very rich history of experiences and studies, which provide it with distinctive features, very different from those of popular constitutionalism. These features survive in the novel notion of constitutional populism with the particularity that constitutional reform is used to give populist regimes some stability and legitimacy.
Although some authors consider that there have been experiences of popular constitutionalism, these are rare, incipient, or rather idealised. That is why so many scholars try to make a sort of normative reconstruction of constitutionalism, adding the popular component to serve as a critique of elitist institutional design currently prevalent in most Western countries and as an alternative to face the so-called crisis of representation.
In this article I argued that some arrangements of the NLC go in the right direction, insomuch as they create new institutional systems that generate democratic participatory mechanisms. That is one of the key reasons why some historically marginalised groups in Bolivia have been able to push for actual inclusion in policymaking processes, and it is also a good reason to pay attention to these mechanisms.
It is not hard to imagine that proposals such as popular constitutionalism find resistance from status quo defenders and give rise to fears of the unknown. Indeed, an easy and common way to resist them is to classify them as populist and give them the negative connotation of this phenomenon without much rigour. The key finding, as per this study, is that popular constitutionalism and constitutional populism are two very different categories with the only common factor of having people at their centres.
Acknowledgements
My thanks to Mark Tushnet, Roberto Niembro Ortega, Jorge Cerdio Herrán, Francisca Pou Giménez, Tatiana Alfonso Sierra, Natalia Morales Cerda, Amrita Bahri, Felipe Solís and participants at the Public Law and the New Populism workshop (ICON-S) at New York University, the faculty workshop at Northwestern Pritzker School of Law in Chicago as well as the two anonymous reviewers, for comments on earlier versions of this article.
