A Constitutional Response to Populism: a New Concept of Constituent Power

Unlike traditional authoritarian regimes, which dismantle the constitutional systems to remain in power, populist regimes manipulate constitutional rules to establish an authoritarian order. When populists have sufficient political support, they exploit the constitutional framework to impose their agenda and consolidate power, ultimately escaping from liberal constraints. To overcome resistance from liberal institutions without openly violating the constitution, populists play what constitutional scholars refer to as "constitutional hardball" (i.e., bending constitutional rules without breaking the system). For populists, “respecting” the constitution is essential, as the cost of outright authoritarianism is often prohibitively high today. Venezuela and Hungary exemplify how populist actors can abuse the constitution to weaken the rule of law and erode constitutional democracy. Leveraging high popularity, populist regimes in these countries amended their constitutions to erode judicial independence, stifle independent media, restrict human rights, suppress opposition, rig the electoral system, and dismantle the mechanisms of political accountability. The rise of populism presents a novel challenge to constitutionalism worldwide, questioning the resilience of constitutional democracy in safeguarding liberal values and the rule of law. In my article, I explore the root of this recent phenomenon, arguing that constitutionalism’s vulnerability to populism stems from its prevailing notion of constituent power. This concept assumes a homogeneous and fixed “people,” yet in reality, “the people” are diverse and dynamic. By examining how the concept of constituent power has evolved, I propose that it must continue to develop to reflect the fluid and fragmented nature of the population it represents.