Prehistory of populist constitutionalism
| Cite this page: Jason Koutoufaris-Malandrinos, “Prehistory of populist constitutionalism”, Archiopedia / Αρχειοπαίδεια (July 2023), p. 375 (revision #-), ISSN 2732-6012. DOI: To be assigned. Note: This entry is part of a research work that is supported by the Hellenic Foundation for Research and Innovation (H.F.R.I.) under “First Call for H.F.R.I. Research Projects to support Faculty members and Researchers and the procurement of high-cost research equipment grant” (Project Number: HFRI-FM17-1502). |
Long before the coining of the terms populist constitutionalism, popular constitutionalism, and constitutional populism, jurists as well as political actors and thinkers had already explored the ideas and policies that are usually associated with this concept: criticism of the separation of law and politics, anti-elitism, anti-institutionalism (anti-establisment), anti-pluralism, illiberalism, popular sovereignty, direct democracy, authentic popular representation, extreme majoritarianism, strong leadership, personification of power, strengthening of executive power, instrumentalization of law.[1]
Aristotle
If “the safest general characterization of the European philosophical tradition is that it consists of a series of footnotes to Plato”,[2] the most accurate assessment of the contemporary literature on populism would be that it is paraphrasing Aristotle – casually, wordily and –more or less– obliviously. But is it not better to seek the fountains than to follow the rivulets? The key element of populism (the distinction between the people and the elite) and the central point of populist constitutionalism (popular sovereignty taken to its conclusion) are already discussed in Aristotle’s Politics.
How different is a present-day right-wing populist from Cleon, “the most violent man at Athens”,[3] who “was the first person to use bawling and abuse on the platform, and to gird up his cloak before making a public speech, all other persons speaking in orderly fashion”?[4] And can we not trace contemporary left-wing “inclusionary” populist support for marginalized groups (including immigrants) and cultural pluralism back to the ancient demagogues who, “with a view to [...] making the people powerful”, admitted “to citizenship not only the legitimate children of citizens but also the base-born and those of citizen-birth on one side”, employed “every device” to make “all the people as much as possible intermingled with one another, and to break up the previously existing groups of associates” and promoted “licence among slaves [...] and among women and children, and indulgence to live as one likes”? [5]
Of course, the Philosopher himself exhibited populist tendencies occasionally. The following passage is revealing:
μᾶλλον ἀδιάφθορον τὸ πολύ - καθάπερ ὕδωρ τὸ πλεῖον, οὕτω καὶ τὸ πλῆθος τῶν ὀλίγων ἀδιαφθορώτερον.[6]
Translation:
The multitude is more incorruptible - just as the larger stream of water is purer, so the mass of citizens is less corruptible than the few.[7]
Maximilien Robespierre
The populist mindset of Robespierre is well-known. A more specifically constitutional manifestation of his populism can be found in his project for a Declaration of the Rights of Man and Citizen submitted to the National Convention in 1793:
Toute institution qui ne suppose pas le peuple bon, et le magistrat corruptible, est vicieuse.[8]
Translation:
Every institution which does not suppose the people good and the magistrate corruptible, is wrong.[9]
Alexis de Tocqueville
Tocqueville devoted his life to studying American democracy. Describing populist constitutionalism in this new-born republic was among his main achievements. One of his keenest observations is the following:
[L]e pouvoir judiciaire de l'Union [...] retarde, il ne saurait arrêter le peuple puisque celui-ci peut en changeant la constitution arriver toujours à ce qu'il désire.[10]
Translation:
[T]he judicial power [...] slows, it cannot stop the people, because the latter by changing the constitution can always arrive at what they desire.[11]
Theodore Roosevelt
Theodore Roosevelt has been conventionally thought of as a vehement opponent of populism, i.e. of United States People's Party. Nevertheless, labels aside, the 26th President of the United States did not shy away from expressing populist views in constitutional matters. For example, in a famous speech delivered in 1912 and recorded by Thomas Edison, Roosevelt quipped:
I believe that the majority of the plain people of the United States will, day in and day out, make fewer mistakes in governing themselves than any smaller class or body of men, no matter what their training, will make in trying to govern them.[12]
Eleftherios Venizelos
It has been rightly observed that Greece “has been recurrently susceptible to populist appeals, the figures of Eleftherios Venizelos and Andreas Papandreou towering over twentieth-century Greek history”.[13] Venizelos' statesmanship “could by no stretch of the imagination be equated with the attitude and mentality of latter-day populist politicians”; however, these politicians “appear similarly consumed by politics, but lack Venizelos' moral understanding of the character of public life”.[14] In this vein, Venizelos can be seen as a principled populist, i.e. as a man who understands that politics is the realm of opinion and not of truth.[15].
Venizelos' populist constitutionalism is vividly illustrated in a debate with Senator Alexandros Mylonas. Mylonas suggested that the opinion of Alexandros Svolos, a prominent constitutional lawyer, outweighed that of a politician; Venizelos strongly disagreed:
[Ε]ἶναι αἵρεσις νὰ λέτε μέσα εἰς ἕνα Πολιτικὸν Σῶμα ὅτι ὁ καθηγητὴς τοῦ Πανεπιστημίου ἠμπορεῖ νὰ ἔχῃ τὴν ἐγκυροτέραν γνώμην εἰς ἕνα ζήτημα ἀπὸ ὅλους.[16]
Translation:
It is heresy to say before a Political Body that the university professor can give the most authoritative opinion on an issue than everyone else.[17]
He added:
Θὰ ἐκύτταζα [...] νὰ καταργήσω τὴν ἕδραν τοῦ Συνταγματικοῦ Δικαίου διὰ νὰ ἀποτρέψω τὸν κίνδυνον [...] νὰ ἐξαρτᾶται ἡ πολιτικὴ ζωὴ τῆς Χώρας ἀπὸ τὴν γνώμην ἑνὸς καθηγητοῦ, σοφοῦ ὅσον θέλετε.[18]
Translation:
I would rather [...] abolish the chair of Constitutional Law in order to prevent the danger [...] of having the political life of the Country depending on the opinion of one professor, however wise he may be.[19]
Notes
- ↑ See Zoltán Szente, Populism and populist constitutionalism, in Fruzsina Gárdos-Orosz and Zoltán Szente, Populist Challenges to Constitutional Interpretation in Europe and Beyond, Routledge, 2021, pp. 16-29.
- ↑ Alfred North Whithead, Process and Reality: An essay in cosmology, New York: The Free Press, 1978, p. 39.
- ↑ Thucydides, Histories, 3.36.6 = Thucydides, The Peloponnesian War, London: J. M. Dent, 1910.
- ↑ Aristotle, Constitution of the Athenians, 28.3 = Aristotle in 23 Volumes, Vol. 20, translated by H. Rackham, Cambridge, MA: Harvard University Press, 1952.)
- ↑ Aristotle, Politics, 1319b = Aristotle in 23 Volumes, Vol. 21, translated by H. Rackham, Cambridge, MA: Harvard University Press, 1944.
- ↑ Aristotle, Politics, 1286a.
- ↑ Aristotle in 23 Volumes, Vol. 21, translated by H. Rackham, Cambridge, MA: Harvard University Press, 1944.
- ↑ Société des Amis de la Liberté et de l'Egalité, Déclaration des droits de l'homme et du citoyen présentée par Maximilien Robespierre, Imprimerie patriotique et républicaine, Paris, 1793, p. 10 (article XXX).
- ↑ The translation is by the author.
- ↑ Alexis de Tocqueville, Democracy in America. Historical-Critical Edition of De la démocratie en Amérique, ed. Eduardo Nolla, Indianapolis: Liberty Fund, 2010, p. 167 (note b).
- ↑ Alexis de Tocqueville, Democracy in America. Historical-Critical Edition of De la démocratie en Amérique, ed. Eduardo Nolla, Indianapolis: Liberty Fund, 2010, p. 167 (note b).
- ↑ Theodore Roosevelt, The right of the people to rule, audio recording, Library of Congress = The works of Theodore Roosevelt, Volume 19, New York : C. Scribner's sons, 1925, p. 200.
- ↑ Paul Kenny, Why Populism?: Political Strategy from Ancient Greece to the Present, Cambridge University Press, 2023, p. 187.
- ↑ Paschalis M. Kitromilides, Venizelos' Intellectual Projects and Cultural Interests, in Paschalis M. Kitromilides, Eleftherios Venizelos: The Trials of Statesmanship, Edinburgh University Press, 2006, p. 377.
- ↑ Cf. Hannah Arendt, Truth and Politics, in Between Past and Future: Eight Exercises in Political Thought, Penguin, 2006, pp. 223-259.
- ↑ Εφημερίς των Συζητήσεων της Γερουσίας, Σύνοδος Γ’ (1930-1931), Συνεδρίαση 40η [Gazette of the Greek Senate Debates, 3rd Meeting (1930-1931), 40th Session, 05.03.1931], pp. 461-462.
- ↑ The translation is by the author.
- ↑ Εφημερίς των Συζητήσεων της Γερουσίας, Σύνοδος Γ’ (1930-1931), Συνεδρίαση 40η [Gazette of the Greek Senate Debates, 3rd Meeting (1930-1931), 40th Session, 05.03.1931], pp. 475-476.
- ↑ The translation is by the author.