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Maria Paula Saffon and Juan F Gonzalez Bertomeu, UNAM The mix of populist constitutionalism: conceptual reflections from a Latin American perspective

Recent literature on populism is transitioning from a stance according to which populism is necessarily at odds with constitutionalism to one according to which there is a much more complex relationship between the two phenomena. The transition is a direct consequence of reality surpassing theory: instead of ignoring or denying the authority of constitutions, populists use them extensively. Populist governments commonly use existing constitutional provisions and interpretations as the grounds for their discourse and practice; they further criticize competing constitutional provisions and interpretations. Moreover, populist governments often promote new constitutions or far-reaching amendments and portray them as the cornerstone of their movement for change.

Existing analyses have attempted to deal with the use of constitutions by populists by labeling it “populist constitutionalism.” However, the term is still far from univocal, and many attempts at definition point to characteristics that are akin to mainstream uses of constitutions. The lack of a compelling distinctiveness of populist constitutionalism can challenge the very notion that populist governments meaningfully differ from other democratic forms of rule.

In this paper, we analyze the use of constitutions by populists, seeking to understand whether populist constitutionalism is, indeed, a thing. To do so, we first go back to the overly discussed definition of populism to stress the reasons that the concept has tended to be considered antagonistic to constitutionalism. We then review the recent literature on populist constitutionalism, trying to spell out what scholars consider to be distinctive to the phenomenon, and critically analyzing distinctiveness claims. That leads us to an identification of the traits that most clearly seem to characterize populist constitutionalism, in terms of the structure and substantive content of constitutions, its sources of legitimation, and its underlying concepts of constituent power.

Substantively, the most peculiar trait of populist constitutionalism is its combination of institutions that seek to concentrate power in the executive and to facilitate the permanence in power of the incumbent and of institutions that seek to give the people more say in politics—through mechanisms of direct democracy and even of horizontal accountability—and/or to empower excluded or underrepresented sectors—through previously unrecognized rights or more generic notions of nationhood. We claim that this odd mixture exhibits well the ambiguity of the populist project as a democratic enterprise.

But we further argue that constitutions are relevant for the populist project as a crucial vehicle for popular mobilization, legitimation recovery, and hence survival. Populists use the process of constitution-making to criticize the status quo, circumvent traditional political institutions, incorporate excluded sectors, and champion the view that constitutions enhance (rather than limit) the people’s power. Because they derive their legitimacy from direct popular support rather than from institutions, populists recur to constitutional change more often to reinvigorate their legitimacy or address crises.

In the final section, we discuss the potentialities and drawbacks of the use of constitutions by populists for institutions and human rights. Even though populist constitutions are designed to maintain the incumbent in power and are hence likely detrimental to democratic competition and minorities’ rights, given some conditions, their existence may be normatively preferable than their absence as a focal point for identifying government’s abuses and for rendering them accountable to their own constitutional projects.

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