TFL Vsebine / Revija Revus

This article examines the relationship between populism and political constitutionalism. It claims that while political constitutionalism is at odds with, and better than, the wide range of experiences labelled under the term ‘populism’, political constitutionalists would do well to distance themselves from the claim that the constitution is political “all the way down”. First, the article argues that the normative ambiguity of the term ‘populism’ makes it ill-fated for the purposes of constitutional theory and a call for clearer language for constitutional discussion is defended. Second, it argues that political constitutionalism should abandon, or significantly adjust, its commitment to what the article calls constitutional lawlessness and is defined as the idea that the constitution is and ought to be entirely malleable. The reasons offered for this proposal differ from those advanced by legal constitutionalism and instead hang on the democratic authority that political constitutionalists vindicate for majoritarian institutions. Political constitutionalism, the article concludes, should grant some of the normative advantages of the law to the outcomes of constitutional decision-making processes. The move makes political constitutionalism more consistent in its own right and, importantly, safer from the charge that it feeds different sorts of constitutional disorder.