—Samuel Issacharoff, NYU School of Law
[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]
A discussion of courts and populism begs for definitional boundaries. While courts are generally institutionally confined, the same cannot be said for populism, a political moniker that risks confounding everything from the majoritarian core of democracy to the demagogic claims of tyrants in the making.
As difficult as precise definition might be, it is clear that there is a shift in democratic politics. The post-WW II political parties of Western Europe are in serious disrepair and the political tones in the Netherlands, France, Italy, Denmark, and other nations, are being defined by a politics of anger surging on the left and the right. Meanwhile, Britain voted Brexit over the opposition of every established political party, and the recent American presidential campaign featured a Democratic challenger who pointedly never joined that party, and a Republican candidate (and now president) who had only a fleeting and tenuous tie to the Republican Party.
When everyone knows what is happening, and definitions are elusive, it is tempting to fall back on the jurisprudence of, “I know it, when I see it.” But some features are critical, even if imprecise. As Jan-Werner Müller addresses in his book on the subject, the new populism begins with hostility to pluralism. There is a claim to speak for a unified people, fighting against elites whose illegitimacy is a source of great anger. The impulse toward what Nancy Rosenblum terms “holism” challenges the concept of institutional accommodation that underlies constitutional democracy. A monist commitment to an abiding truth that captures the interests of all the people (save the unredeemable outliers) cannot commit to the rotation in office, the ability of those on the outside today to emerge triumphant tomorrow, and then to see the process reverse again. Where Adam Przeworski and his colleagues use that rotation, or what Bernard Manin terms the renewal of consent, as the operational definition of democracy, the populist impulse is toward a plebiscitary affirmation of the true will of the people.
Stable democracies require an internalization of politics as repeat play. Populist elections claim a mandate from the people beyond choosing officeholders. Elections over mandates risk the same repudiation of institutional accommodation of divisions as do plebiscites. It is not that populism is plebiscitary as such; rather, neither is well suited to institutionalized politics that presume deliberation, procedural order, and accommodation. For both plebiscites and populism, the election defines the agenda. Period.