The complacency of legality : constitutionalist vulnerabilities to populist constituent power

Abstract:

This essay explores the concept of constituent power in the light of recent constitutional developments in countries with populist governments. It attempts to outline and contrast conceptions of constituent power as inherent in constitutionalist and populist thinking, respectively. While constitutionalists draw heavily upon Kelsenian normativism in framing the way political power is generated, populists juxtapose this with a concept of constituent power that is inspired by Carl Schmitt's 'decisionist' view. While constitutionalists stress the self-contained nature of the law, populists challenge this by drawing attention to the necessity for the social embeddedness of any legal order. In doing so, populists expose a core tension inherent in constitutionalism: How do constitutionalists reconcile their democratic aspirations with the simultaneous preclusion of certain political choices from the democratic realm?

Populists, it will be argued, can attack constitutionalism because of the deficient conception of constituent power that underlies the latter. Where public law is being challenged by populists, it can at some point no longer rely on its own force to defend itself. Its authority needs to be re-established from an extra-legal, pre-positive perspective. In an era of political populism, the role of constitutionalist public law is thus to function as a discourse that can challenge populism by means of the powerful reasons that inhere in the former.