Document Type

Article

Publication Date

3-2018

Publication Title

University of Chicago Law Review

Publication Title (Abbreviation)

U. Chi. L. Rev.

Volume

85

Issue

2

First Page

521

Last Page

544

Abstract

This Essay draws on recent academic definitions of populism and recent examples of its use in order to show that there is an affinity between populism and widespread constitutional change. It argues that populists use constitutional change to carry out three functions: deconstructing the old institutional order, developing a substantive project rooted in a critique of that order, and consolidating power in the hands of populists. Thus, access to the tools of constitutional change may accentuate both the promise of populism as a corrective to stagnating liberal democracies and the threat that it poses to those constitutional orders. I also argue that there is a trajectory to populist constitutionalism: populist constitutions begin by emphasizing their promise to improve on existing liberal-democratic constitutional orders and obscuring their underlying consolidation of power, but if populists are able to maintain power for long periods of time, they will likely become overtly illiberal, arguing that their substantive goals cannot be met within the confines of liberal democracy. This suggests at least two separate agendas: one that prevents the forms of constitutional change that allow populists to mold the constitutional order so that they become difficult to dislodge and a second that makes a stronger affirmative case for the virtues of liberal democracy.

Rights

© 2018 David Landau

Comments

First published in University of Chicago Law Review.

Faculty Biography

http://www.law.fsu.edu/faculty-staff/david-landau

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