• PopCon Team

Populist / popular / political constitutionalism

by Akritas Kaidatzis

Assistant professor, Law School,Aristotle University of Thessaloniki



WP1_KAIDATZIS Political Constitutionalis
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Abstract

In this paper I aim to assess three attempts to challenge orthodox constitutional thinking: “populist,” “popular,” and “political” constitutionalism. To do so, I briefly examine three seminal books –by Mark Tushnet, Larry Kramer, and Richard Bellamy, respectively– which best illustrate these alternative approaches. Then, I track down what all three approaches have in common and, significantly, what they are opposed to. After examining a case-study from the Greek experience, I conclude that, despite having failed to replace the dominant model of liberal constitutionalism, these alternative approaches are an invaluable enrichment of constitutional thinking, both descriptively, offering the vocabulary to discern and assess constitutional law made outside the courts, as well as normatively, proposing the advancement of democratic constitutionalism as an answer to the alleged demise of contemporary liberal constitutionalism.


I. Introduction

By the late twentieth century and well into the twenty-first, judicial review of legislation has been firmly established, almost globally, as an indispensable, perhaps even the most important, feature of contemporary constitutionalism.[1] Constitutional courts, and constitutional adjudication more broadly, appear in our days to be in their most powerful ever. The dominant model of constitutionalism, then, seems to be defined by the emphasis it places on courts and their ability to restrain politics by reviewing legislation. Or, to put it in more general terms, by the primacy of law over politics. This model, or understanding, of constitutionalism places high trust in the judicial function, while it is especially distrustful of politics. Scholars have given the dominant model several names, sometimes by adding an adjective to the noun constitutionalism, such as “legal” or “liberal” constitutionalism, sometimes by coining terms such as “liberal legalism” and the like.[2]

There are several objections to the dominant model, or understanding, of constitutionalism, on both empirical and normative grounds. One objection is that the dominant model’s over-emphasis on the judiciary is misleading as a matter of fact, since much of constitutional law is (still) made outside of the courts. Another, more forceful, objection is that it is democratically undesirable to leave broad or even exclusive control of constitutional meaning to unelected judges, as the dominant model seems to suggest. This kind of critique is in the core of alternative understandings of constitutionalism, which have been proposed to challenge the validity of the dominant model. Again, scholars often label these alternative approaches by adding an adjective to the noun constitutionalism.[3]

In this paper I aim to assess three, apparently unsuccessful, attempts to challenge the dominant model of constitutionalism which go by the names of “populist constitutionalism”, “popular constitutionalism”, and “political constitutionalism”. To do so, first, I briefly examine three seminal books which best illustrate these alternative approaches: Mark Tushnet’s Taking the Constitution Away from the Courts,[4] Larry Kramer’s Popular Constitutionalism and Judicial Review,[5] and Richard Bellamy’s Political Constitutionalism,[6] respectively. Then, I track down the similarities, or perhaps elective affinities, between these approaches; what all three have in common and, significantly, what it is they are opposed to, as I try to show, by way of a short excursus, in a case-study.[7] I conclude by claiming that, despite not having prevailed, these alternative approaches have nevertheless enriched contemporary constitutionalism.

My rather modest claim is that, despite numerous differences not only between these strands of thought but also within each of them, all three of them –populist, popular, and political constitutionalism– share a common concern against the excessive juridification and depoliticization of society. In doing so, they reveal a flaw of, and also a source of peril for, the dominant model of liberal constitutionalism. If taken seriously into account, this kind of critique has the potential to reinforce liberal constitutionalism against at least some of the developments that, allegedly, threaten its coming demise.[8] This kind of critique, then, does not necessarily reject liberal constitutionalism altogether; it might quite as well contribute to its renaissance. To put it in more practical terms: Despite appearances to the contrary, the populist-, popular-, or political-constitutionalism kind of critique should not necessarily be understood as a call for radically restricting, or even abolishing, judicial review; although it certainly does call for more judicial self-restraint.

All three attempts –populist, popular and political constitutionalism– have been unsuccessful, at least in the sense that they failed to transform the dominant constitutional discourse or, more importantly, to reverse the worldwide trend towards judicial empowerment. However, it would be wrong to consider them a failure. What populist, popular or political constitutionalists did achieve is not insignificant. They have raised awareness of existing flaws and shortcomings of the dominant model of liberal constitutionalism, which lead to citizen’s alienation and disillusionment. They have convincingly argued that, not only the adjudicated constitution as produced in courtrooms but also the legislated constitution as the product of politics,[9] are at least coequal parts of the efficient constitution of a nation.[10] They have also convincingly argued that enhanced popular involvement in determining constitutional meaning and, hence, the democratization and social responsiveness of constitutional law are crucial in preserving the constitution’s authority. In short, the body of scholarship associated with what has come to be known as populist, popular and political constitutionalism, if nothing else, has at least highlighted the importance of democratic constitutionalism for liberal democracies.[11]

II. Populist constitutionalism

The conservative insurgency in the USA from the 1980s onwards had a profound effect on American constitutional law, mainly manifested in the attempt to roll back the rulings and the overall legacy of the U.S. Supreme Court from the 1960s and 1970s, what is best known as the Warren and Burger Courts. Progressives reacted in several ways.[12] Among others, by contesting the doctrine of judicial supremacy, according to which the courts, and ultimately the Supreme Court, are the final and authoritative interpreters of the constitution. Some of the critics pointed out the elitist element in judge-made constitutional law and its insulation from the beliefs and aspirations of ordinary people. Ideas of popular sovereignty and self-governance are central to this kind of critique; as is also an underlying assumption, which might be called populist, in favor of the political energy of ordinary people.[13]

In the 1990s, Harvard law professor Richard Parker made exactly this point in a lengthy essay rather provocatively entitled “A constitutional populist manifesto.”[14] The core of his argument is that “constitutional law should be devoted as much –and even more– to promote majority rule as to limit it.”[15] This rests, Parker argues, on “a powerful claim: that ‘common’ people, ordinary people –not their ‘betters,’ not somebody else’s conception of their supposed ‘better selves’– are the ones who are entitled to govern our country.”[16] In a not quite dissimilar vein, and in an equally lengthy essay, Yale law professor Jack Balkin sets out to examine “constitutional theory’s relationship to popular attitudes and popular culture.”[17] His conclusion is unmistakably post-modernist as it is anti-elitist and anti-professional. What he calls “a populist constitutionalism,” he argues,

“demands that academics become more self-conscious about their status as members of a subculture whose elite values tend to shape and occasionally distort their perspectives. It asks that they become more aware about the culturally bound nature of the activity called constitutional theory. It entreats them to consider the possible value in popular culture. … Just as critical race theory and feminism ask whites and males to recognize and surrender their privileges as whites and males, so too populism asks elites to recognize and surrender their privileges as members of these distinctive subcultures. In particular, populism requires professors of constitutional law to forgo their privileges as academics. … In any case, the goal of populist constitutionalism is neither anti-intellectualism nor academic self-loathing. It is rather a richer and fuller understanding of the self and its place in the larger political community. … Through this process all of us may hope to understand better what our commitment to democracy –rule by the people– truly means.”[18]

By the end of the decade, this strand of though culminated in what came to be its most elaborated exposition: Mark Tushnet’s Taking the Constitution Away from the Courts, a book on what the author calls populist constitutional law.[19] While easy to read, this is a rather hard to summarize book. Instead of some grand theory, Tushnet offers loads of examples, both real and imaginary. His writing is subtle and suggestive; he lets his examples speak for themselves –and for himself. The book begins with chapter 1 “Against Judicial Supremacy,”[20] reaches a highpoint with the rather provocatively entitled chapter 7 “Against Judicial Review,”[21] and concludes with chapter 8 “Populist Constitutional Law.”[22] Despite strong language in the chapter’s titles, Tushnet’s analysis is actually much more nuanced and cautious. Nevertheless, the book remains a polemic against the, peculiarly American, doctrine of judicial supremacy, that is, against the idea that the U.S. Constitution means what the U.S. Supreme Court says it means.

Tushnet advances the “project,” as he calls it,[23] of developing a populist constitutional law as an alternative account to the theory of judicial supremacy,[24] or to “the elitist constitutional law that dominates contemporary legal thinking.”[25] His argument is both positive as well as normative. On a descriptive level, Tushnet’s point is that we tend to overemphasize the courts’ role in enforcing the Constitution while we underestimate the role the political branches, and especially Congress, can, and do, play.[26] Perhaps, the courts haven’t done such a good job in interpreting and implementing the Constitution as we tend to assume. Perhaps, Congress has done better in considering constitutional issues than we think.[27] Or, perhaps, it has not done such a good job exactly because legislators tend to defer constitutional issues to courts –the problem of the judicial overhang, as Tushnet calls it.[28] The point, then, is that much of constitutional interpretation goes on outside the courts, in Congress or elsewhere;[29] and the courts’ constitutional interpretations frequently interact with the Constitution as interpreted elsewhere. “Constitutional theory,” Tushnet argues, “must make sense of how people deal with the Constitution away from the courts if it is to provide an accurate account of our constitutional practice.”[30]

How the people –as opposed to legal professionals, judges and lawyers– deal with the Constitution is at the heart of a populist theory of constitutional law. Populist constitutional law, Tushnet writes, “rests on the idea that we all ought to participate in creating constitutional law through our actions in politics.”[31] Hence, it distributes constitutional responsibility broadly throughout the population,[32] as opposed to a caste of legal professionals. This approach, then, “treats constitutional law not as something in the hands of lawyers and judges but in the hands of the people themselves.”[33] Earlier attempts with populist constitutionalism have claimed that much, as we have seen.[34] Tushnet’s distinctive contribution is that he becomes much more specific as to how the people engage in constitutional interpretation. Two points are of importance here.

First, Tushnet proposes a distinction between the thick and the thin Constitution.[35] This distinction appears throughout his book and has a central place in his argument. The thick Constitution “contains a lot of detailed provisions describing how the government is to be organized,” while the thin Constitution refers to “its fundamental guarantees of equality, freedom of expression, and liberty”[36] –roughly, the principles articulated in the Declaration of Independence and the Constitution’s Preamble. While the people –and the same holds true for their representatives– are generally indifferent as to the technicalities of the thick Constitution, they do care much about the fundamental principles of the thin Constitution. Much of politics revolves around the question of the proper realization of these principles and the choice among competing visions, indeed deep disagreements, about what they actually mean. So, politics –ordinary, everyday politics– can become a site of vigorous constitutional discussions and disagreements over the proper meaning of fundamental constitutional principles. When this is the case, the people, by participating in politics, contribute to the creation of constitutional meaning, hence they are making constitutional law in that (populist) sense. “Populist constitutional law gains its content from discussions among the people in ordinary political forums,” writes Tushnet.[37] But, “[p]olitics does not occur without politicians,” he hastens to add, “and political leaders play a significant role in assisting the people as we conduct those discussions.”[38] The important role that Tushnet acknowledges to political leaders, and hence to political elites, in the account of populist constitutional law differentiates his approach to earlier works such as Parker’s or Balkin’s. Tushnet’s anti-elitism, then, aimed mainly at judicial and legal elites, has a distinctively anti-judicial and anti-legalist character.

Second, Tushnet claims –and this, now, is a purely normative claim– that “disagreements over the thin Constitution’s meaning are best conducted by the people, in the ordinary venues for political discussion.”[39] There is no compelling reason why one should prefer the courts’ interpretations of the thin Constitution over the people’s or their representatives’. “In a populist theory of constitutional law,” he writes, “constitutional interpretation done by the courts has no special normative weight deriving from the fact that it is done by the courts.”[40] A populist –as opposed to elitist– constitutional law rests on a commitment to democracy, which is itself an integral part of the thin Constitution.[41] This, then, means that whenever the people have strong feelings about the meaning of the thin Constitution, and they get the opportunity to articulate their constitutional considerations through politics, then we should take what the people say about the Constitution very seriously. Hence, “people acting outside the courts can ignore what the courts say about the Constitution, as long as they are pursuing reasonable interpretations of the thin Constitution.”[42] Populist constitutional law, then, rejects the idea that “the Constitution is what a majority of the Supreme Court says it is”, and it would rather “make the Constitution what a majority of Congress says it is.”[43] Populist constitutional law, that is, “focuses on democratic and legislative responsibility for enforcing the thin Constitution.”[44]

There is an additional positive argument that supports Tushnet’s normative claim. Simply put, the argument is that, examined over a longer period of time, courts aren’t exactly the counter-majoritarian institutions that the dominant understanding of constitutional law portrays them to be, but they actually tend to follow the election returns. “Looking at judicial review over the course of U.S. history, we see the courts regularly being more or less in line with what the dominant national political coalition wants,” Tushnet writes,[45] offering ample evidence to support his conclusion.[46] So, on balance, the overall effect of judicial review has been rather small; the institution actually matters less than we tend to assume.

This allows Tushnet to engage in the “thought experiment,” as he calls it,[47] of abolishing judicial review.[48] What if, he asks, we did entirely away with the institution of judicial review? Would that make much difference to society or to the liberties of the American people? His answer seems straightforward: “judicial review does not make much difference one way or the other.”[49] The only clear effect that abolishing judicial review would have is that “[i]t would return all constitutional decision-making to the people acting politically. It would make populist constitutional law the only constitutional law there is.”[50] Bold as it may be, this is not an absurd claim. Nations such as Great Britain or the Netherlands are reasonably well-functioning democracies that prove it “possible to develop systems in which the government has limited powers and individual rights are guaranteed, without having U.S.-style judicial review.”[51] After all, stripping courts of the power of judicial review of legislation “does not mean doing away with judicially enforceable rights.”[52] It is just that courts will not have the power to strike down laws anymore. This doesn’t prevent them to vigorously review executive action that infringes individual rights. And they will retain the power to enforce statutory rights, which “can be as inspiring as constitutional ones, and sometimes more so.”[53]

Thinking about the Constitution and constitutional rights without the courts and judicial review, Tushnet concludes, enables us to “take an active role in constructing our constitutional rights without relying on the courts to save us from ourselves.”[54] Populist constitutional law, then, “returns constitutional law to the people, acting through politics.”[55] We shouldn’t be scared by that prospect, if we acknowledge that “the Constitution belongs to us collectively, as we act together in political dialogue with each other –whether we act in the streets, in the voting booths, or in legislatures as representatives of others.”[56] The very thinness of the thin Constitution, limited as it is to the fundamental principles of the Declaration of Independence and the Constitution’s Preamble, has the advantage that “it leaves a wide range open for resolution through principled political discussions.”[57] Hence, Tushnet closes his book with these words:

“Populist constitutional law does not determine the outcomes of political controversies or dictate much about public policy. Instead, it orients us as we think about and discuss where our country ought to go. … The populist constitutionalist believes that the public generally should participate in shaping constitutional law more directly and openly. The Declaration of Independence and the Preamble to the Constitution give all of us that opportunity. As Lincoln said, the Constitution belongs to the people. Perhaps it is time for us to reclaim it from the courts.”[58]

We can easily assume that Tushnet’s proposal for abolishing judicial review might have come as a shock to adherents of established constitutional orthodoxy. However, as I have tried to show, there is much more in his book than this provocative proposal, which Tushnet himself concedes is nothing more than a thought experiment. “Against judicial supremacy” –not “Against judicial review”– is the book’s central message. Nevertheless, it seems that the very idea of questioning judicial review might have scared away students of constitutional law. So, despite more than positive reviews,[59] Tushnet’s groundbreaking work on populist constitutional law did not seem to attract many sympathizers, let alone followers. The very term “populist constitutional law” that Tushnet coined, or more broadly “populist constitutionalism”, utterly failed to establish itself in constitutional jargon. It seems to have fallen in desuetude not many years after the book’s publication,[60] and has been largely forgotten thereafter. So much so, that the term “populist constitutionalism” has been appropriated in recent years by scholars from social and political sciences who study populism, to denote a quite different –however, not entirely unrelated–[61] phenomenon: the constitutional discourses and practices of populist movements, parties and leaders.[62]

So, at least terminologically speaking, populist constitutionalism as proposed by progressive American constitutional scholars in the 1990s is long dead. At least in that respect, this first attempt to challenge the dominant model of constitutionalism has been a failure.

III. Popular constitutionalism

By the time (end of the 1990s) the scholarly discussion on populist constitutionalism reached its peak, the term “populist” has already begun to acquire a pejorative sense both within academia as well as in public opinion.[63] Larry Kramer, in his seminal book The People Themselves,[64] came up with a terminologically more appropriate alternative: popular constitutionalism.[65] In the book’s subtitle, Kramer juxtaposes Popular Constitutionalism and Judicial Review.[66] However, he does not follow Tushnet in questioning judicial review as such. “Popular constitutionalism rejects only the idea of judicial supremacy,” Kramer explains, reassuring that he is “not suggesting that courts be excluded from the process of deciding constitutional questions.”[67] This becomes apparent by the middle of his book, in the contrast between chapters 4 (“Accepting Judicial Review”)[68] and 5 (“Rejecting Judicial Supremacy”),[69] and is reaffirmed in the Epilogue (“Judicial Review Without Judicial Supremacy”).[70]

The book is a fascinating study of U.S. constitutional history, spreading from the founding era up to the turn of the twenty-first century. Kramer’s main argument is that, over most of American history, popular constitutionalism has co-existed with, and always prevailed against, judicial review of legislation; but this has been reversed by the end of the twentieth century, when the near absolute prevalence of judicial review over popular constitutionalism lead to what is known as judicial supremacy. Popular constitutionalism, in that respect, refers to the role that the people have in implementing the constitution and creating constitutional meaning. In its purest form, it denotes “the active sovereignty of the people over the Constitution.”[71] On the other hand, judicial supremacy refers to the familiar theory that the courts, and ultimately the Supreme Court, are the final and authoritative interpreters of the constitution.

Like Tushnet before him, Kramer advances an argument that is both positive as well as normative. On a descriptive level, Kramer contends that, for most of its history, “American constitutionalism assigned ordinary citizens a central and pivotal role in implementing their Constitution.”[72] The book offers numerous historical incidents to support that claim. Indeed, again like Tushnet, Kramer offers no grand theory, and prefers historical examples rather than analytical definitions and conceptual distinctions.[73] Nevertheless, there is an important normative claim that Kramer makes about the peculiar distinctiveness of fundamental law as opposed to ordinary law. This distinction is as central for Kramer as the distinction between the thick and the thin constitution was for Tushnet. The argument goes as follows:

In our days, we tend to think of the constitution as fundamental law in the sense that it is higher law, but law nevertheless, not dissimilar in its character and operation to ordinary law. Americans in the founding era understood fundamental law as having a function so distinctive from ordinary law that made it a different, special category of law, which we might call “popular law.”[74] While ordinary law is “law enacted by the government to regulate and restrain the people”, fundamental law is “law created by the people to regulate and restrain the government”.[75] Hence, while government officials, and ultimately the courts, are the authoritative interpreters of ordinary law, this cannot be the case with fundamental law; the latter cannot be interpreted authoritatively by the very same persons –the government officials– it is supposed to regulate. It is the people that should be the authoritative interpreters of fundamental law; and the fundamental character of that kind of law lies exactly in the superior authority that the people have over it.[76] Popular constitutionalism, then, is about “[t]he people’s interpretive authority –their active control over the meaning and enforcement of their constitutions.”[77] This “inversion of interpretive authority” distinguishing the constitution from ordinary law perfectly reflects popular constitutionalism.[78]

The belief that the people have final authority to resolve constitutional disagreements rests on the presumption that the people can act “as a collective body capable of independent action and expression.”[79] The question, then, is: how? The people, Kramer answers, enforce the constitution through politics and within the political system, “working through and responding to their agents in the government”[80] by employing what he calls “political-legal” devices.[81] These may take various forms. The people may act directly, exercising, first and foremost, their right to vote, but also their rights to petition and assembly, and even more coercive means of popular opposition such as protests or even, at least in earlier times, mobbing.[82] Moreover, the people may act indirectly, through their elected representatives in the legislature and the executive.[83] And they may also act through the courts. Popular constitutionalism, then, is not incompatible with judicial review of legislation. It is just that it understands courts acting “as the people’s agents to supplement and enhance popular control over the interpretation and implementation of constitutional law.”[84] When courts refuse to enforce an unconstitutional law, they are meant to “act on behalf of the people,” engaging not in ordinary legal interpretation but rather in “a ‘political-legal’ act of resistance.”[85] Crucially, this means that courts can only refuse to enforce a law when its unconstitutionality is “clear beyond dispute.”[86] Judicial self-restraint, then, is a built-in mechanism of popular constitutionalism, obliging courts to employ the power of judicial review only very cautiously and sparingly.

Popular constitutionalism, Kramer contends, has been “the dominant public understanding,”[87] certainly in the founding era but also over much of American history. Nevertheless, as contrasting views have been challenging it almost from the beginning, a shift has gradually taken place. Speaking in 1937, president F. D. Roosevelt famously insisted that the Constitution of the United States is “a layman’s document, not a lawyer’s contract”. He acknowledged that “for one hundred and fifty years we have had an unending struggle between those who would preserve this original broad concept of the Constitution as a layman’s instrument of government and those who would shrivel the Constitution into a lawyer’s contract”. But he could still conclude that “[w]henever legalistic interpretation has clashed with contemporary sense on broad national policy, ultimately the people and Congress have had their way.”[88] Clearly, that no longer holds true.

What has changed is what Kramer describes as the “assimilation of fundamental law into ordinary law,”[89] or the “conceptual absorption of the Constitution into ordinary law.”[90] The constitution seems to have lost its peculiar distinctiveness as a special kind of popular law, gradually turning into law “proper”, not dissimilar from ordinary law, “that is, a kind of law normally managed through litigation and judicial interpretation.”[91] We might say, then, that “the constitution” gradually became “constitutional law.”[92] This “slow, unconscious process by which constitutional law was recast as a kind of ordinary law”[93] had a profound effect. It meant that, like ordinary law, the constitution too “was for lawyers and judges to decide,” that “courts were peculiarly responsible for constitutional interpretation” and that “their word ought indeed to be final.”[94] Kramer describes thus a process of depoliticization and professionalization of the constitution, in the sense that it came to be interpreted through the ordinary legal methods, and that responsible for its interpretation came to be, predominantly, legal professionals and, ultimately, the courts. All this led to the ascendance of judicial supremacy, that is, “the belief that federal courts were principally, and finally, responsible for the law of the Constitution.”[95]

There is a more subtle, and more profound, change beneath the assimilation of the constitution into ordinary law: a change in the understanding of popular sovereignty. For popular constitutionalists, the people are always present in a constitutional democracy, actively preserving sovereignty over their constitution. The people, in other words, are not limited to act as the constituent power (only to disappear thereafter) but they also shape, through the course of everyday politics, the way the constituted powers apply and interpret the constitution. For judicial supremacists, on the other hand, popular sovereignty is only expressed at the rare moments of founding, when the people act as constituent power, whereas they are “otherwise either absent or present only as an abstraction.”[96] Once the exercise of constituent power is over and the constitution is ratified, the people virtually disappear. “Ratification makes a constitution ‘law,’ but also turns the constitution over to government agents (mainly judges) who assume responsibility for its interpretation and enforcement,” Kramer explains.[97] Hence, while popular constitutionalists accept judicial review “mainly as a device to protect the people from their governors,” judicial supremacists view it “first and foremost as a means of guarding the Constitution from the people.”[98]

This, then, is the strongest normative claim that Kramer makes, and it is with this that he closes his book. He laments the “judicial monopoly on constitutional interpretation,”[99] meaning that in charge of the constitution are not the people anymore, but rather “a lawyerly elite;”[100] he decries the anti-democratic character of judicial supremacy,[101] calling its supporters “today’s aristocrats;”[102] and he urges Americans to reclaim their constitution as “a layman’s instrument of government” and not “a lawyer’s contract”, insisting that “the Supreme Court is our servant and not our master.”[103] Kramer’s last phrase in the last chapter of his book is: “The Supreme Court is not the highest authority in the land on constitutional law. We are.”[104]

One might ask: How different is Kramer’s popular constitutionalism from Tushnet’s populist constitutionalism? After all, Tushnet himself was among the first to endorse the term proposed by Kramer,[105] acknowledging that it is “more appropriate” than his own;[106] and he subsequently became an active participant in the popular constitutionalism literature.[107] There is, nevertheless, a more than slight difference in their respective approaches that ought not to be lost by the usage of common terminology. Kramer’s popular constitutionalism appears to be at the same time both narrower (or more moderate) and broader (or more radical) than Tushnet’s populist constitutionalism. It is narrower because, unlike Tushnet, Kramer is careful not to give the impression that he is questioning judicial review tout court. At the same time, it is broader because Kramer, not being careful enough, often gives the impression that he is actually more populist than Tushnet,[108] seemingly favoring direct, unmediated popular action over indirect involvement through politics within the representative system. Though, as we have just seen, this is not quite accurate for his work, it might be that, for this misunderstanding, Kramer fell victim of his own rhetoric and, especially, of the rhetoric employed in the numerous historical sources he quotes.[109] As Tushnet was misleadingly taken to call to arms against judicial review (which he did not), so Kramer was misleadingly taken to justify popular resistance extending even to mob action (which he also did not).[110] Nevertheless, while Tushnet insists that he refers to the people acting in ordinary politics, Kramer often gives the impression that he refers to the people in the streets.

Tushnet’s response has been to reorient the discussion on popular constitutionalism in a direction closer to his own former project of populist constitutionalism. So, while acknowledging Kramer’s terminology as an improvement on his own, he notes that it “led to misunderstanding,” since “one might think of popular constitutionalism … as calling for direct popular referenda on many questions … or for plebiscitary democracy.” For Tushnet, though, “popular constitutionalism is a practice embedded in the structures of ordinary political contention.”[111] Therefore, he stresses the institutional and organizational tenets of popular constitutionalism, as operating within the political, and foremost the party, system. He insists that popular views on constitutional matters “are articulated within the framework of political institutions”, since popular politics works “in and through institutions”.[112] And he notes that popular expression on constitutional matters involves organization, either “within the political [scil. party] system, whether as a faction within an existing party or as a ‘third’ party,” or “outside the party system in social movements or in what we now tend to call ‘civil society.’”[113] In either case, Tushnet contrasts popular constitutionalism what he calls “‘professional’ constitutionalism” or “the constitutional law of political elites.”[114]

Kramer’s popular constitutionalism provoked much criticism but also attracted many sympathizers.[115] Such was its resonance among constitutional scholars that it would only be a minor exaggeration to speak of a “popular constitutionalism movement.”[116] Most popular constitutionalists express anti-professional and anti-elitist sentiments similar to those by Kramer and Tushnet, albeit, perhaps, to varying degrees.[117] Apart from that, however, substantial differences seem to exist between the diverse approaches of various strands of popular constitutionalism.[118] It seems, then, that popular constitutionalism fell victim of its own success. So much so, that some commentators go as far as to claim that popular constitutionalism has come to mean so many different things that it risks ending up to a rather meaningless catchall phrase.[119] Although clearly overstated, this criticism is valid at least inasmuch as it is rather clear that popular constitutionalism “defies easy definition.”[120] It is equally clear, though, that, if nothing else, popular constitutionalism is at the very least a counter-doctrine to the doctrine of judicial supremacy.[121]

IV. Political constitutionalism

At around the same time, roughly by the middle of the first decade of the century, and as popular constitutionalism was gaining momentum in the USA, constitutional scholars in the UK rediscovered, and renewed their interest in, the old British concept of “the political constitution.”[122] Several constitutional developments in the previous decades had all contributed to the relativization of the model of parliamentary sovereignty and to greater judicial empowerment: the supremacy of EU law, and hence of the Court of Justice of the EU; the evolving activism of the European Court of Human Rights; and, most crucially, the Human Rights Act 1998, which granted national courts the power the review legislation for its compatibility with human rights. These developments resulted in the ascendance of what several scholars labelled as “legal constitutionalism.”

One of the first to critically assess the emerging constitutional orthodoxy has been public law professor Adam Tomkins.[123] Tomkins contrasts legal constitutionalism to an alternative that rests on “an older, political, approach to the constitution,”[124] which he calls “republican constitutionalism.”[125] In a nutshell, Tomkins advances the idea that checks on government (in the British sense denoting the executive) should be political rather than legal, and should be realized in Parliament by the people’s representatives rather than in the courtroom by judges;[126] and he rejects legal constitutionalism as being both undemocratic and ineffective, and therefore undesirable.[127]

The most elaborated critique of this sort has been offered by political science professor Richard Bellamy in his seminal book Political Constitutionalism.[128] Now, this is a quite different book than the ones by Tushnet and Kramer we have seen in the previous sections. Differences have to do both with the author himself as well as with the methodology he employs. Tushnet and Kramer are both Americans; and they are both constitutional lawyers with a strong taste for constitutional history. Bellamy is British; and he is a political theorist. His book is anything that either of theirs isn’t: Heavy theorizing across an orderly plan makes reading rather difficult but summarizing easy. It needs to be said, though, that Bellamy is not just familiar with, but remarkably competent in, both jurisprudence and American constitutionalism. He is also familiar with both Tushnet’s and Kramer’s work, by which he acknowledges having been influenced.[129]

Bellamy’s book begins with an introductory distinction between legal and political constitutionalism;[130] and is actually structured in two parts around this very distinction: part I on “Legal constitutionalism” is a critical assessment of the several variants of this type of approach,[131] whereas part II on “Political constitutionalism” makes the normative, and densely theorized, case for the superiority of this model in any reasonably well-functioning democracy.[132] It should be noted –and this is another major difference to Tushnet and Kramer– that Bellamy makes an abstract normative claim; his concern is “to criticise the very idea of legal constitutionalism and not just its US and British versions.”[133]

Bellamy summarizes his thesis as follows: The book challenges the common view that “[a] written, justiciable constitution, incorporating a bill of rights” is necessary to safeguard “against the abuse of power by democratic governments.”[134] This view seems to rest on assumptions that simply don’t hold in reality. The checks imposed by judicial review on majoritarian decision-making, “[f]ar from guarding against a largely mythical tyranny of the majority,” actually risk “entrenching the privileges of dominant minorities and the domination of unprivileged ones.”[135] On the contrary, it is “the workings of actually existing democracies,” that is, party competition and majority rule based on political equality and governmental accountability, that “offer adequate, if not perfect and certainly improvable, safeguards against domination and arbitrary rule.”[136] “In sum,” Bellamy concludes, “democracy provides a form of political constitutionalism that is superior both normatively and empirically to the legal constitutional devices that are regularly proposed as necessary constraints upon it.”[137]

Bellamy’s main argument is that rights are best protected against arbitrary rule through “participation in democratic politics,” not through their judicial enforcement.[138] Simply put, democracy offers citizens a mechanism to “throw out governments” that override their rights.[139] Bellamy offers both empirical as well as normative claims to support this argument. For instance, he notes that, especially in hard cases, “legislatures neither perform so poorly nor courts so well,”[140] in order for a general argument for rights-based judicial review to appear justified. His central claim, though, is normative and arises from “the contested nature of rights.”[141] In this, as he acknowledges,[142] he follows the approach taken by legal philosopher Jeremy Waldron.[143] Reasonable and well-meaning people, the argument goes, frequently disagree over the content of rights, their relationship to each other, or the manner in which they should be realized. In an open and democratic society, there is not, and cannot be, a single “true” or “correct” understanding of any given right, waiting for the courts simply to “discover” it. Rather, courts risk enforcing their own understanding of the rights over that of the people’s as determined by their elected representatives. This, then, raises the issue of “the procedural legitimacy of constitutional courts striking down democratically enacted legislation.”[144]

Bellamy not only points to the “weakness of judicial review as a forum for resolving” disagreements about rights;[145] he vigorously argues that “the normal democratic process involves far more legitimate and effective constitutional protections than a legal constitution can hope to provide.”[146] As he explains in a rather illuminating passage:

“A procedure that allows all views to be expressed, seeks to a degree to integrate them and show equal concern as well as respect to the various issues different perspectives raise, and allows decisions to be challenged and amended to take into account new information and changing values and circumstances, should have a greater chance of securing the assent and collaboration of the political community than one that devolves this decision to a group that is neither representative of, nor directly accountable to, popular opinion. For what touches all should surely be decided by all.”[147]

Hence, democratic decision-making, Bellamy concludes, should be seen as “actively promoting, rather than threatening, constitutional values.”[148]

Bellamy is well aware that the global trend is in the opposite direction, and that developments associated with globalization seem to promote “the American style of legalism and judicial review most criticised in this book.”[149] Nevertheless, he boldly summarizes his book as an attempt to defend “democracy against judicial review.”[150] Because he insists that legal constitutionalism “is more likely to be part of the problem –helping corrode the very democratic processes it seeks so inadequately to replace,”[151] while the real danger is “tyranny by unrepresentative minorities rather than a majority.”[152]

Unlike Tushnet and Kramer, then, Bellamy clearly makes the case against judicial review as such, and not just judicial supremacy. This, of course, is perfectly explicable by the context. In the peculiar settings of the UK constitutional system, judicial supremacy has never been an issue. However, there is more in Bellamy’s argument than the straightforward rejection of judicial review. His analysis may also apply for systems with established institutions of judicial review, in a direction not dissimilar than that advocated by Tushnet and Kramer, that is, towards more judicial self-restraint. After all, Bellamy acknowledges that “[t]here are elements of both legal and political constitutionalism in most constitutions;”[153] at the same time, he reckons that legal constitutionalists also “acknowledge that no constitution will survive long unless citizens can identify with it.”[154]

Political constitutionalism has been intensely debated over the last decade and a half, especially, but not exclusively, among UK constitutional scholars.[155] Again, as between populist and popular constitutionalism, it was Mark Tushnet that made the connection between U.S.-style popular constitutionalism and political constitutionalism. Tushnet believes that “political constitutionalism” –or at least “a version of what British constitutional theorists called ‘political constitutionalism’”–[156] is “a better term for the phenomenon than the one that has become prevalent in U.S. discussions, ‘popular constitutionalism.’”[157] Tushnet also links political constitutionalism to what he calls “weak-form” judicial review.[158] Interestingly enough, Richard Bellamy appears to endorse this connection.[159]

Back “home,” however, the concept of political constitutionalism has undergone some considerable critical self-reflection from within. Adam Tomkins, one of the central figures in the debate, in a kind of revisionist article, suitably entitled What’s Left of the Political Constitution?, argues that “we should move on from what has become a rather outdated contrast between the political constitution and the legal constitution.”[160] He views the British constitution as a “mixed constitution,” “neither exclusively political nor exclusively legal;”[161] and he acknowledges a considerable role for the courts and judicial review in it.[162] More recently, Martin Loughlin, himself anything but a legal constitutionalist,[163] in a rather angry paper, deplores that, by transforming J.A.G. Griffith’s functional account of the political constitution[164] into a normative theory of political constitutionalism, today’s political constitutionalists have misunderstood their forefather, so to say, and, “[i]n doing so, they have also obscured the orientation of their movement.”[165] For Loughlin, the “quarrel over ‘the legal’ versus ‘the political’ constitution … was doomed to lead to an entirely fruitless debate.”[166]

As with popular constitutionalism, then, the expansion of the literature on political constitutionalism brought with it a certain lack of coherence, apparent in the, not insignificant, differences between its various strands. Hence, both popular and political constitutionalism seem to have failed to establish themselves as robust and clear-cut theories.

V. Common ground: democratic vs liberal constitutionalism

Despite their differences, all three bodies of scholarship seem to share some common ground. The rather most obvious is that they are all meant as a critique, or indeed a rejection, of the “dominant” or “prevailing” model of constitutionalism or the constitutional “orthodoxy.” In the U.S. context, this is the doctrine of judicial supremacy. Political constitutionalists prefer to call it “legal constitutionalism,” but it also goes by other names as well, such as “liberal legalism”[167] or “liberal constitutionalism.”[168] “constitutional liberalism” (Kim Lane Scheppele, “The opportunism of populists and the defense of constitutional liberalism,” 20(3) German L. J. 314-331 (2019)). Mark Tushnet came up with a more appropriate term: “judicial constitutionalism.”[169]

As he explains, despite its broad use by political constitutionalists, the term “legal constitutionalism” may be misleading, if not conceptually erroneous, since

“[t]he target is not law as such –after all, law constitutes the political structures on which political constitutionalists rely– but rather the assumption that everything deserving the name ‘law’ must be enforced by the courts. The term ‘judicial constitutionalism’ identifies the target more clearly.”[170]

Indeed, this term more accurately describes all three strands of thought, at least inasmuch as both populist/popular as well as political constitutionalists share a certain skepticism against judicial review, and certainly against its excesses, be it judicial supremacy or judicial activism. In that, they all effectively call for more self-restraint in the employment of judicial review as a device for resolving constitutional disagreements. It should be noted, by the way, that Tushnet’s view carries a special weight, as he has the privilege to have been actively contributing to all three academic debates, both on populist and later popular constitutionalism in the U.S. context as well as on political constitutionalism in a UK-centered context. Tushnet, then, has been a central figure in, indeed the thread that connects, all three debates and, in that, his work may also be seen as part of the common ground that these debates share.

Tushnet is obviously right. However, there is more to populist/popular and political constitutionalism than the mere critique of judicial empowerment. The term “judicial constitutionalism” accurately captures, negatively, what these, so to say, counter-constitutionalisms are against; however, it does not express, positively and by reflection, what they stand for. As I will try to explain, this is best captured by the term “liberal constitutionalism.” We can say, then, that populist/popular and political constitutionalism entail a forceful critique of, indeed an alternative to, the dominant model of liberal constitutionalism.[171]

Now, admittedly, there is an obvious difficulty with this distinction. Liberal constitutionalism could mean two quite different things. First, and in a rather broad sense, liberal constitutionalism refers to the political philosophy and practice of (western type) liberal democracy. This is a system of government that combines democracy and popular sovereignty with liberalism and the rule of law. One simple way to put it, is that it is “a form of constitutionalism that broadly seeks to protect democracy and limit power.”[172] This terse description suitably captures the innovative idea behind modern constitutional democracy: the interconnection of popular sovereignty and the rule of law in a system that links the democratic with the liberal element. This is indeed a very thin, and therefore very broad, definition. It only disqualifies such types of constitutionalism that either deviate from, or indeed pervert the very notion of, liberal democracy despite nominally adhering to it (e.g. illiberal or authoritarian constitutionalism); or refer to alternative systems of constitutional government that reject western type liberal democracy (e.g. Islamic constitutionalism).[173]

But, second, and in a much narrower sense, liberal constitutionalism also refers to the political philosophy and practice of those variants within liberal democracy proper in which the combination of democracy and liberalism comes with a preference, even if only slight, for the latter. Scheppele’s constitutional liberalism. Take, for example this description: Liberal constitutionalism “typically hinges on a written constitution that includes an enumeration of individual rights, the existence of rights-based judicial review, a heightened threshold for constitutional amendment, a commitment to periodic democratic elections, and a commitment to the rule of law.”[174] The liberal element is rather thick in this description, while the democratic relatively thin, virtually reduced to periodic elections. Liberal constitutionalists in that second sense, then, tend to overemphasize the limiting aspect of constitutionalism, and downplay its enabling aspect.[175]

It is, I hope, pretty much obvious that populist/popular and political constitutionalism only oppose liberal constitutionalism in this latter, narrow, sense; otherwise, they remain perfectly and unambiguously within the ambit of liberal constitutionalism in the former, and broader, sense. Their critique, then, on the dominant model of constitutionalism aims to restore the democratic element within liberal democracy. Simply put, critics call for a liberal democracy where the combination of democracy and liberalism comes with a preference, even if only slight, for the former. This, then, makes all three alternatives, expressions of democratic constitutionalism;[176] they all call for the democratization of constitutional law.

There is a well-known quote by Roberto Mangabeira Unger, which forcefully captures that kind of critique[177]. Unger identifies as one of the “dirty little secrets” of contemporary jurisprudence its “discomfort with democracy” and the “fear of popular action.”[178] As he explains:

“The discomfort with democracy shows up in every area of contemporary legal culture: in the ceaseless identification of restraints upon majority rule, rather than of restraints upon the power of dominant majorities, as the overriding responsibility of judges and jurists; in the consequent hypertrophy of countermajoritarian practices and arrangements; in the opposition to all the institutional reforms, particularly those designed to heighten the level of popular political engagement, as threats to a regime of rights; in the equation of the rights of property with the rights of dissent; in the effort to obtain from judges, under the cover of improving interpretation, the advances popular politics fail to deliver… Fear and loathing of the people always threatened to become the ruling passions of this legal culture.”[179]

Populist/popular and political constitutionalism’s critique of excessive juridification, against judicial review or, at the very least, against judicial activism –in a word, what Paul Blokker calls “legal resentment”[180]– is a response to exactly the kind of concern that Unger voices. There are three distinct, although obviously linked, directions that inform this critique: (a) anti-elitism; (b) anti-professionalism; and (c) anti-legalism. The creation of constitutional meaning is not reserved to legal elites acting through formal-legal procedures, but is equally a matter for “ordinary” people acting within “ordinary” politics and through “ordinary” legislation.[181] As Mark Tushnet puts it, “scholars can understand the subject only by thinking about how constitutional law and constitutional courts operate within fields of political power.”[182]

Contemporary constitutional discourse, or the dominant model of liberal constitutionalism, seems to be excessively preoccupied with the peril of an illiberal democracy or, simply put, of a “democracy without rights.” Its critique reminds us that it is equally, if even more, perilous the prospect of an undemocratic liberalism, or a polity of “rights without democracy.”[183] The message, then, is that “[s]ubjecting the government to review in the courts should not collapse into allowing the judges to govern in place of government.”[184]

VI. Excursus: Three Greek constitutional cases

Three high profile, and widely discussed, constitutional decisions of the Greek Council of State, the highest administrative court, from recent years seem to paradigmatically confirm the concerns that populist/popular and political constitutionalists raise. Bottom line is: democracy protects rights better than judicial review.

(a) Decision 460/2013 on citizenship for second generation immigrants

A statute enacted in 2010 created two new rights. First, it enabled second generation immigrants to get the Greek citizenship, provided they were born or went to school in Greece and have been living in the country for a certain period of time. And, second, it conferred (non-citizen) immigrants the right to vote and a limited right to stand for election at local elections, provided they have been living in Greece for a certain period of time.[185]

In February 2013, the Council of State found the statute unconstitutional and annulled secondary legislation enabling its implementation.[186] Thus, the judiciary deprived immigrants of rights previously conferred to them by the legislature.

Perhaps it is not unimportant to note the following: The 2010 statute was initiated by the government of center-left PASOK under prime minister George Papandreou, a liberal centrist. In 2013, when the case was decided, a new government was in power, formed by a coalition between center-right Nea Dimokratia and PASOK. Prime minister Antonis Samaras, a hardliner conservative, was an outspoken opponent of immigrants’ rights; while PASOK’s new leader, Evangelos Venizelos, less liberal than his predecessor, was not especially keen to stand for the latter’s policy on immigrants’ rights. It seems then that, finding the previous majority’s statute unconstitutional, the Council of State did nothing more than effectively align itself to political change.

(b) Decision 2287/2015 on pension cuts

Two statutes enacted in 2012 provided, the former, for 12% cuts in basic pensions and 10% to 20% cuts in supplementary pensions and, the latter, for 5% to 20% cuts on all pensions over 1.000 euros.[187] The pension cuts were part of the second fiscal adjustment program that the Greek government has agreed with its international creditors. These have been imposed on top of previous pension cuts imposed in 2010 and 2011, as part of the first fiscal adjustment program. The Council of State found that the 2010 and 2011 cuts were not unconstitutional, because justified by dire fiscal necessities.

In June 2015, the Council of State ruled that last cuts from 2012, because imposed on top of the previous ones, were not constitutionally tolerable any more, and declared them unconstitutional.[188] Thus, the Council of State provided millions of pensioners with an entitlement to claim the restoration of their pensions to the levels they were before the 2012 cuts.

Again, it is remarkable that the Council of State initially refrained from finding pension cuts unconstitutional, and only did so after the January 2015 governmental change, i.e. after the left-wing SYRIZA under Alexis Tsipras won the elections on a strong anti-austerity agenda. Note, especially, that in June 2015, when the case was decided, the confrontation between the Tsipras government and its creditors was at its peak; the government could use the decision on pension cuts as a bargaining chip against its creditors. Once again, one can plausibly presume that, by finding pension cuts unconstitutional, the Council of State did nothing more than effectively align itself to political change.

(c) Decision 660/2018 on religious education

The Greek Constitution provides that, among other aims, schools also advance the religious consciousness of pupils.[189] For decades, the Minister of Education, which approves the class curricula, interpreted this constitutional provision in conjunction with another one, on the special status of the Greek-orthodox Church,[190] to mean that religious class is only aimed at Christian orthodox pupils,[191] while non-orthodox pupils may justifiably abstain from class. In September 2016, the Minister of Education approved new curricula for religious class in elementary and junior high school, which have an interreligious character and so enable all pupils to attend the class.[192] Several persons affiliated with the Church of Greece, a bishop among them, appealed to the Council of State against this decision.

In March 2018, the Council of State found the minister’s decision unconstitutional and annulled it.[193] According to the decision, the Constitution only enshrines a constitutional right to religious education for Christian orthodox pupils. Once again, the judiciary deprived a group of people (non-Christian orthodox pupils) of a right previously conferred to them –by the executive, this time.

In this case, no political change has incurred to explain the decision. It is rather the privileged position that the Church of Greece enjoys within the judicial system that explains this –to many, shocking– ruling.

What do these cases show us? First, despite widespread belief to the contrary, courts often are majoritarian institutions. In both the immigrants’ rights case and the pensions case, the Council of State seems to have just followed the electoral cycle.

Second, again despite widespread belief to the contrary, the political branches often do a much better job than courts in protecting minorities’ rights.[194] In both the immigrants’ rights case and the religious class case, the Council of State deprived minorities –and possibly “discrete and insular”[195] ones, for that matter, notably religious– of acquired rights. Note that it was the political branches –the legislature in the former case, the executive in the latter– that created those rights. Note also that the political branches may have done so, notwithstanding the possible political cost: large parts of the population are hostile to the idea of granting rights to immigrants, or to the idea that their children get to know other faiths in school than their own. Hence, by depriving minorities of their rights, the Council of State might have actually protected the interests of a “silent” majority against the will of political elites (once again, this is majoritarianism, albeit of a different kind). And, at least in the latter case, it definitely protected the interests of a powerful institution of the prevailing religion, the Church of Greece.

Third, once again despite widespread belief to the contrary, courts do not just protect rights as matter of principle, but also effectively shape and reshape crucial public policies. At first sight, the pension cuts case seems to be about the enforcement of a social, or rather economic, right. Millions of pensioners will benefit from a raise in their pensions. However, this will require vast amounts of budgetary resources, which will inevitably reduce social spending on other policies, most notably social protection for the needy and poor. Hence, the pensions decision effectively favors people from the middle classes who are relatively better-off, since at least they get a pension, over and to the detriment of people with no regular income, long-term unemployed, homeless, or otherwise socially excluded.[196] The decision, then, favors a privileged minority over an unprivileged one (For a similar critique see A. Sajó, “Social Rights as Middle-Class Entitlements in Hungary: The Role of the Constitutional Court”, in: R. Gargarella, P. Domingo and Th. Roux (eds.), Courts and Social Transformation in New Democracies. An Institutional Voice for the Poor?, Aldershot: Ashgate, 2006, 83-105; M. Tushnet, “A Response to David Landau”, Harvard International Law Journal Online 53 (2012), 155-164).[197]

All three cases, then, confirm the “difficulty” with which Mark Tushnet is concerned, namely “that legislatures could also promote rights (not merely fail to violate them), and that constitutional courts were in a position to erroneously find unconstitutional rights-promoting legislation.”[198] And, in one way or another, all three cases disprove the elitist preoccupation “that the people could not possibly care enough about individual rights to protect them through politics.”[199]

It is most interesting then how “the people through politics”, that is, the political branches, responded to the Council of State’s constitutional rulings. As to the first case on immigrants’ rights: A new majority in the legislature formed after the 2015 elections enacted a statute that pretty much restored, with only minor changes, the policy of granting citizenship to second generation immigrants (not, however, the policy of granting limited electoral rights to non-citizens).[200] The Council of State did not dispute the constitutionality of the statute, which has been successfully implemented ever since. As to the second case on pension cuts: For four years now, since the case was decided in 2015, the executive consistently refuses to implement the decision. In numerous cases brought by pensioners before courts, the executive claims that implementation would fatally impair budgetary and fiscal stability[201] and would result in raises in taxation and cuts in social spending, urging courts to reconsider their case law. As to the third case on religious education: Despite the annulment of the 2016 ministerial decision, the Minister of Education refused to recall his identical decision enacted one year later, which has not yet been annulled, hence schools continue teaching the new religious class curricula.

As a practical matter, then, these high-profile rulings did not have (at least, so far) any considerable effect. The political branches eventually got (at least, so far) pretty much what they wanted. To me, all this seems pretty much like a manifestation of political (or popular) constitutionalism in practice.

VII. Conclusion

Populist constitutionalism is dead, and popular and political constitutionalism are not feeling too well –one could paraphrase the old saying. The term “political constitutionalism” seems to have been abandoned altogether;[202] and, while popular and, even more so, political constitutionalism do continue to attract scholarly attention, both discussions seem to suffer from a lack of focus and coherence. Have these, then, been three failed attempts to question constitutional orthodoxy?

Maybe so, maybe not. On the one hand, legal or judicial or liberal constitutionalism, or whatever we might call the dominant model of constitutionalism, seems to be alive and kicking. Constitutional or supreme courts around the world, including supranational courts in Europe, seem to be more powerful than they ever have been in the history of constitutionalism. On that respect, then, yes, all three attempts to challenge the dominant model seem to have failed. On the other hand, however, these alternative models have been anything but complete failures.

First, they have provided us with a toolkit to discern and a vocabulary to describe constitutional law made beyond and away from the courts. As all contributors to these discussions point out, and as the Greek cases that I cursorily presented confirm, there is much more to constitutional law than the judiciary’s constitutional jurisprudence. One would have a distorted picture of the actually existing constitutional law, or the “efficient constitution,”[203] if one would only focus on casebook jurisprudence. On a descriptive level, then, both popular and political constitutionalists help us find out what is really happening with the constitution “within fields of political power”[204] that escape the courts’ reach.

Moreover, both popular and political constitutionalism provide, on a normative level, a powerful answer to the problem of the “coming demise of liberal constitutionalism.”[205] The clear answer, then, that these alternative accounts give is the democratization of constitutional law. Rather than being a solution, as has long been presumed by the dominant understanding, the elitism, professionalism and legalism of constitutional law –in one word, its insulation from politics and the people– are rather the problem, and arguably one of the causes for the near-global trend of questioning liberal constitutionalism. Democratic constitutionalism, then, is the answer –this seems to be the message on which populist, popular or political constitutionalists alike, and despite their differences, seem to agree.

[1] See, e.g., Tom Ginsburg, “The Global Spread of Constitutional Review,” in: The Oxford Handbook of Law and Politics (Keith E. Whittington, R. Daniel Keleman & Gregory A. Caldeira eds.), Oxford: Oxford University Press, 2008, 81-98 (at 81: “Constitutional review, the power of courts to strike down incompatible legislation and administrative action … has become a norm of democratic constitution writing”). [2] See infra, section V. [3] Of course, alternative approaches may be termed in various ways, as recent scholarship, e.g., on law and political economy indicates. See David Singh Grewal, Amy Kapczynski & Jedediah Purdy, “Law and Political Economy: Toward a Manifesto,” at Law and Political Economy blog, November 6, 2017, available at: https://lpeblog.org/2017/11/06/law-and-political-economy-toward-a-manifesto/ [4] Mark Tushnet, Taking the Constitution Away from the Courts, Princeton, NJ: Princeton University Press, 1999; see infra, section II. [5] Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review, New York: Oxford University Press, 2004; see infra, section III. [6] Richard Bellamy, Political Constitutionalism. A Republican Defence of the Constitutionality of Democracy, Oxford: Oxford University Press, 2007; see infra, section IV. [7] See infra, sections V and VI. [8] See, e.g., Tom Ginsburg, Aziz Z. Huq & Mila Versteeg, “The Coming Demise of Liberal Constitutionalism?” University of Chicago Law Review 85 (2018), 239-255. [9] For the distinction see Robin West, “The Missing Jurisprudence of the Legislated Constitution,” in: The Constitution in 2020 (Jack M. Balkin & Reva B. Siegel eds.), Oxford - New York: Oxford University Press, 2009, 79-91 (at 79, juxtaposing “the Constitution as read and interpreted by courts –the adjudicated Constitution–” with what she calls “the legislated Constitution, the Constitution looked to by the conscientious legislator as he or she seeks to fulfill her political obligations”). [10] I take the term “the efficient constitution” as used by Mark Tushnet, The Constitution of the United States of America: A Contextual Analysis, Oxford & Portland: Hart Publishing, 2009 (at 1: “the ‘efficient’ constitution of the United States … can be found in various written forms, but the document called the US Constitution is only one, and not the most important, of them”). [11] See, generally, Robert C. Post & Reva B. Siegel, “Democratic Constitutionalism,” in: The Constitution in 2020 (Jack M. Balkin & Reva B. Siegel eds.), Oxford - New York: Oxford University Press, 2009, 25-34; Robert C. Post & Reva B. Siegel, “Roe Rage: Democratic Constitutionalism and Backlash,” Harvard Civil Rights – Civil Liberties Law Review 42 (2007), 373-433. [12] For a brief overview, see Post & Siegel, “Democratic Constitutionalism,” (fn. 11) at 25-26. [13] For an excellent overview, see Lucia Corso, “What does Populism have to do with Constitutional Law? Discussing Populist Constitutionalism and its Assumptions,” Rivista di filosofia del diritto 3 (2014), 443-470 (at 444, claiming that populist constitutionalism “rests on anthropological assumptions benevolent to ordinary people usually denied by the conventional view of constitutionalism”). [14] Richard D. Parker, “‘Here, the people rule’: A constitutional populist manifesto,” Valparaiso University Law Review 27 (1993), 531-584. [15] Id., at 532 (emphasis in original). [16] Id., at 573. Parker contrasts what he calls “Populist sensibility” with the “Anti-Populist sensibility” which he ascribes to conventional discourse about constitutional law, i.e. skepticism, if not hostility, towards the political energy of ordinary people (see id., at 552-584). [17] Jack M. Balkin, “Populism and Progressivism as Constitutional Categories,” Yale Law Journal 104 (1995), 1935-1990 (at 1943). [18] Id., at 1990. As Parker did, Balkin too contrasts two opposing positions on the constitutional theory’s relationship to popular attitudes and popular culture, one that he calls populist and the other progressivist. Balkin acknowledges the affinities between his approach and Parker’s; see id., at 1943-1944 fn. 23. [19] Tushnet, Taking the Constitution Away from the Courts (supra, fn. 4). [20] Id., at 6-32. [21] Id., at 154-176. [22] Id., at 177-194. [23] Id., at 7 and passim. [24] Id., at 22. [25] Id., at xi. [26] See especially id., ch. 5 (“The Incentive-Compatible Constitution”) at 95-128, where Tushnet develops the idea of a self-enforcing Constitution, enforced, that is, through the political process rather than through judicial review, as a way of “distributing constitutional responsibility throughout the government” (id., at 128). [27] See id., ch. 3 (“The Question of Capability”) at 54-71. In later work, Tushnet examines more thoroughly the constitutional performance of legislators and executive officials. See Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Perspective, Princeton, NJ: Princeton University Press, 2007, at 79-157. [28] Tushnet, Taking the Constitution Away from the Courts, at 81. Or, as he puts it elsewhere in the book: “Neither the people nor their representatives have to take the Constitution seriously because they know –or believe– that the courts will. Political calculations might change if people knew that they were responsible for the Constitution” (id., at 66). [29] See id., ch. 2 (“Doing Constitutional Law Outside the Courts”) at 33-53. [30] Id., at x. [31] Id., at 157. [32] Id., at 174. [33] Id., at 182. [34] See supra, text above fns. 14-18. Tushnet only refers to Parker’s essay on constitutional populism fleetingly to acknowledge that, while Parker uses the term in a slightly different way, their usages are nevertheless related (id., at x). Balkin’s essay isn’t mentioned in Tushnet’s book. [35] See id., at 9-14 and passim. [36] Id., at 9, 11. [37] Id., at xi. [38] Id., at 14, xi. [39] Id., at 14 (emphasis omitted). [40] Id., at x. [41] Id., at 31-32. [42] Id., at 33. [43] Id., at 52. [44] Id., at 69. [45] Id., at 153. [46] See id., ch. 6 (“Assessing Judicial Review”) at 129-153. [47] Id., at 174. [48] See id., ch. 7. For a more elaborated version of this thought experiment, see Mark Tushnet, “Abolishing Judicial Review,” Constitutional Commentary 27 (2011), 581-589 (proposing a constitutional amendment prohibiting any court in the United States to review the constitutionality of acts of Congress). [49] Tushnet, Taking the Constitution Away from the Courts, at 154, 174. [50] Id., at 154. [51] Id., at 163. [52] Id., at 168. [53] Id. [54] Id., at 174. [55] Id., at 186. [56] Id., at 181. [57] Id., at 185. [58] Id., at 187. [59] See, e.g., James Fleming, “Book Review: The Constitution Outside the Courts,” Cornell Law Review 86 (2000), 215-249. [60] Replaced by the term “popular constitutionalism,” as we will see in the next section. [61] See Akritas Kaidatzis, “Populist Constitutionalism as a Critique on Liberal (or Legal) Constitutionalism,” unpublished conference paper, available at Academia.edu: https://www.academia.edu/36909163/Populist_Constitutionalism_as_a_Critique_on_Liberal_or_Legal_Constitutionalism. [62] For an excellent overview, see Paul Blokker, “Populist Constitutionalism,” in: Carlos de la Torre (ed.), Routledge Handbook of Global Populism, London: Routledge, 2019, at 113-128. [63] See Yannis Stavrakakis, “How did ‘populism’ become a pejorative concept? And why is this important today? A genealogy of double hermeneutics,” POPULISMUS Working Papers No. 6, Thessaloniki, April 2017, available at: http://www.populismus.gr/wp-content/uploads/2017/04/stavrakakis-populismus-wp-6-upload.pdf. [64] Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (supra, fn. 5). Kramer first formulated his argument in Larry D. Kramer, “The Supreme Court 2000 Term Forward: We the Court,” Harvard Law Review 115 (2001), 4-169. [65] See infra, at fn. 106. [66] Kramer, The People Themselves, at front page and iii. [67] Larry D. Kramer, “Undercover Anti-populism,” Fordham L. Rev. 73 (2005), 1343-1359, at 1357 (emphasis added). [68] Kramer, The People Themselves, at 93-127. [69] Id., at 128-144. [70] Id., at 249-253. [71] Id., at 8. [72] Id. [73] Critics have pointed this out as a structural weakness of Kramer’s work. See, e.g., Larry Alexander & Lawrence B. Solum, “Popular? Constitutionalism?” Harvard Law Review 118 (2005), 1594-1640, at 1602. I think, however, that, just like Tushnet, Kramer never meant to write a book on the “high theory” of popular constitutionalism. Instead, he set out to provide as much historical evidence for this phenomenon as he could. And he undeniably accomplished this endeavor successfully. [74] Kramer, The People Themselves, at 24, 29. [75] Id., at 29. Fundamental law was “made by the people to govern the governors” (id., at 92). As a judge in the 1790s put it: “A Constitution is to the governors, or rather to the departments of government, what a law is to individuals” (as cited by id, at 30, emphasis in original). [76] See id., at 29-30. [77] Id., at 48. “In a world of popular constitutionalism, government officials are the regulated, not the regulators, and final interpretive authority rests with the people themselves” (id., at 107). [78] Id., at 45. [79] Id., at 25, 30. [80] Id., at 7. [81] Id., at 108. [82] See id., at 25-27, 83-84. Popular constitutionalism at its simplest is to vote out a majority that enacted an unconstitutional law or to vote in a majority that promises to repeal it. [83] Again, at its simplest, popular constitutionalism is about constituents pushing their representatives to vote down a bill they deem unconstitutional or, once enacted, to vote for its repeal. [84] Id., at 105. [85] Id., at 63, 92. [86] Id., at 92, 98-99. Popular constitutionalism, then, extends to courts striking down a blatantly unconstitutional law that the people clearly deem as such. If limited in such cases, judicial review operates as “a ‘political-legal’ act on behalf of the people” and “a substitute for popular action” (id., at 98-99), indeed as “a substitute for popular resistance” (id., at 92). [87] Id., at 207. [88] Id., at 217 (quoting an F. D. Roosevelt speech from 1937). [89] Id., at 164, 168, 185. [90] Id., at 156. [91] Id., at 155. [92] See id., at 150. [93] Id., at 164. [94] Id., at 164, 135-136. [95] Id., at 170. [96] Id, at 8. [97] Id., at 52. [98] Id., at 132. [99] Id., at 229. [100] Id., at 228. [101] See id., at 241-243. [102] Id., at 247. [103] Id., at 248. [104] Id. [105] See Mark Tushnet, “Popular constitutionalism as political law,” Chicago-Kent Law Review 81 (2005), 991-1006, defining popular constitutionalism as “the deployment of constitutional arguments by the people themselves, independent of, and sometimes in acknowledged conflict with, constitutional interpretations offered and enforced by the courts” (id., at 991). [106] As Mark Tushnet concedes: “In my early formulations, I called my program one of populist constitutionalism; Larry Kramer almost contemporaneously came up with the more appropriate term, ‘popular constitutionalism.’” See Mark Tushnet, “Constitutional Law: Critical and Comparative” (April 2, 2015), Harvard Public Law Working Paper No. 15-09, available at SSRN: https://ssrn.com/abstract=2589181, at 8 (also published in Spanish as Mark Tushnet, “Derecho constitucional crítico y comparado,” in: Roberto Gargarella and Roberto Niembro Ortega (eds.), Constitucionalismo Progresista: Retos y Perspectivas. Un homenaje a Mark Tushnet, Mexico: Universidad Nacional Autónoma de México, 2016, 1-14). [107] Besides the articles quoted supra (fns. 105, 106) see, especially, Mark Tushnet, “Popular Constitutionalism and Political Organization,” Roger Williams University Law Review 18 (2013), 1-9. [108] See, especially, Kramer, The People Themselves, 241-242, 244-245 (references to Richard Parker’s previous work on constitutional populism) and passim. [109] For instance, at some points Kramer seems to endorse the rhetoric of people Saul Cornell identifies as the “plebeian populists” of the founding era. See Saul Cornell, “The People’s Constitution vs The Lawyer’s Constitution: Popular Constitutionalism and the Original Debate over Originalism,” Yale Journal of Law and the Humanities 23 (2011), 295-337, at 306. [110] As Tom Donelly argues, in later works Larry Kramer seems to have modified his views, in order to overcome the criticism of being a bare majoritarian or legislative supremacist. See Tom Donelly, “Making Popular Constitutionalism Work,” Wisconsin Law Review 2012, 159-194, at 170-174. For a restatement of Kramer’s views, see, especially, Larry D. Kramer, “‘The Interests of the Man’: James Madison, Popular Constitutionalism, and the Theory of Deliberative Democracy,” Valparaiso University Law Review 41 (2006), 697-754. [111] Tushnet, “Constitutional Law: Critical and Comparative” (supra, fn. 106) at 8. [112] Tushnet, “Popular Constitutionalism and Political Organization” (supra, fn. 107) at 1. [113] Id., at 2. [114] Id., at 4. [115] For a rather forceful criticism, see Alexander & Solum, “Popular? Constitutionalism?” (supra, fn. 73). [116] So, e.g., Jonathan R. Siegel, “The Institutional Case for Judicial Review,” Iowa Law Review 97 (2012), 1147-1199, at 1149, 1151. [117] Saul Cornell, for instance, distinguishes between “elite and popular approaches to constitutional interpretation,” as exemplified in the division, already in the founding era, between proponents of “a lawyer’s constitution” and champions of “a people’s constitution.” See Cornell, “The People’s Constitution vs The Lawyer’s Constitution” (supra, fn. 109), at 303, 304-310. [118] For useful overviews, see Alexander & Solum, “Popular? Constitutionalism?” at 1619-1626, David E. Pozen, “Judicial Elections as Popular Constitutionalism,” Columbia Law Review 110 (2010), 2047-2134, at 2053-2064; Donelly, “Making Popular Constitutionalism Work” (supra, fn. 111); Helen J. Knowles & Julianne A. Toia, “Defining ‘Popular Constitutionalism’: The Kramer versus Kramer Problem,” Southern University Law Review 42 (2014), 31-51. [119] See, e.g., Knowles & Toia, “Defining ‘Popular Constitutionalism’” (supra, fn. 118), claiming that “there is reason to believe that ‘popular constitutionalism,’ as it is used by academics writing in law journals, is no longer a meaningful concept” (manuscript at 5, see also 32-33). [120] Donelly, “Making Popular Constitutionalism Work,” at 160-161. [121] See Larry D. Kramer, “Judicial Supremacy and the End of Judicial Restraint,” California Law Review 100 (2012), 621-634, defining popular constitutionalism as “the notion that primary authority to interpret the Constitution lies with the people and not with courts” and pointing to the “replacement of this concept of popular constitutionalism with the modern doctrine of judicial supremacy,” that is, “the notion that deciding the ongoing meaning of a democratic Constitution is a task best left entirely to judges” (id., at 621). [122] See, especially, J.A.G. Griffith, “The political Constitution,” Modern Law Review 42 (1979), 1-21. For the revival of the concept, this time as “political constitutionalism,” see, e.g., Graham Gee, “The political constitutionalism of JAG Griffith,” Legal Studies 28 (2008), 20-45. [123] Adam Tomkins, Our Republican Constitution, Oxford and Portland: Hart Publishing, 2005. [124] Id., at vii. [125] See id., chapter 2, at 33-65. In later works, Tomkins endorsed the language of political constitutionalism. See, e.g., Adam Tomkins, “The Role of the Courts in the Political Constitution,” University of Toronto Law Journal 60 (2010), 1-22. [126] See Tomkins, Our Republican Constitution, chapter 1, at 1-31. [127] Id., at 10, 25, 40. [128] Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (supra, fn. 6). [129] Id., at 10-11 fn. 24. Bellamy dedicates a section on what he calls “populist constitutionalism,” treating popular constitutionalism as one version thereof (id., at 129, 136-141). At points, though, it seems that he uses both terms interchangeably (see id., at 136, 137, 138). [130] Id. (“Introduction: legal and political constitutionalism”), at 1-12. [131] Id., at 13-141. [132] Id., at 143-259. [133] Id., at 11. [134] Id., at vii. [135] Id. [136] Id. [137] Id. [138] Id., at 1. As he repeats throughout his book, “the true protection of rights … comes from democracy” (id., at 141). [139] Id., at 15. [140] Id., at 9. [141] Id., at 16. [142] Id., at 11 fn. 25. [143] See, especially, Jeremy Waldron, Law and Disagreement, Oxford: Oxford University Press, 1999; and Jeremy Waldron, “The Core of the Case Against Judicial Review,” Yale Law Journal 115 (2006), 1346-1406. [144] Bellamy, Political Constitutionalism, at 11. [145] Id., at 16. [146] Id., at 141. [147] Id., at 51. [148] Id., at 145. [149] Id., at 261-262. [150] Id., at 260. [151] Id., at 262. [152] Id., at 263. [153] Id., at 5, 10. [154] Id., at 6. [155] See, e.g., the contributions in German Law Journal 14 (2013), 2103-2292, Issue 12 (Special Issue – Political Constitutions). [156] Tushnet, “Constitutional Law: Critical and Comparative” (supra, fn. 106), at 8. [157] Tushnet, “Abolishing Judicial Review” (supra, fn. 48), at 587 fn. 20. [158] Mark Tushnet, “The Relation between Political Constitutionalism and Weak-Form Judicial Review,” German Law Journal 14 (2013), 2249-2263, at 2251-2255. As he explains, in weak-form review, “the courts’ specifications of the constitution’s meaning can be reexamined in the ordinary course of legislative activity. The judicially created meaning may then be rejected by the political branches of government through more-or-less ordinary legislation, rather than through the substantially more burdensome method of constitutional amendment” (id., at 2250). For an in-depth elaboration of this concept, see Tushnet, Weak Courts, Strong Rights (supra, fn. 27). [159] Richard Bellamy, “A reply to Tom Hickey. Why political constitutionalism requires equality of power and weak review,” Int’l Journal of Constitutional Law 17 (2019), 317-328. [160] Adam Tomkins, “What’s Left of the Political Constitution?” German Law Journal 14 (2013), 2275-2292, at 2275. [161] Id., at 2275-2276. “Ours is no longer an entirely political constitution”, he concludes, “but the political constitution remains vibrant and vital as a core component of our increasingly rich constitutional order” (id., at 2290). [162] See also Tomkins, “The Role of the Courts in the Political Constitution” (supra, fn. 125). [163] See, especially, Martin Loughlin, Political Jurisprudence, Oxford: Oxford University Press, 2018. [164] See Griffith, “The political Constitution” (supra, fn. 122). [165] Martin Loughlin, “The Political Constitution Revisited,” LSE Law, Society and Economy Working Papers 18/2017, at 1, 7-8 and passim. [166] Id., at 8. [167] See, e.g., Stephen Tierney, “Whose Political Constitution? Citizens and Referendums,” German Law Journal 14 (2013), 2185-2196, at 2185-2186. A cautionary note is needed here: the term “liberal legalism” may have a different connotation in the U.S. See, for instance, Tushnet, “Constitutional Law: Critical and Comparative” (supra, fn. 106) at 4-5: “the high politics of U.S. constitutional law is liberal legalism. Liberal legalism is capacious enough to encompass an enormous range of political positions, from a robust libertarianism on the right to a robust secular social democracy on the left. … Liberal legalism’s fundamental premise is that people act as individuals making self-directed choices (or at least that the only sensible way to organize a legal system is to assume that sort of individualism). … What liberal legalism’s individualism does not accommodate, though, are ideas about human well-being that make essential reference to something other than individuals.” [168] See, again, Tierney, “Whose Political Constitution?” at 2187. See also, for a related use of the term in a different context, Paul Blokker, “Populism as a Constitutional Project,” Int’l Journal of Constitutional Law 17 (2019), 535-553. Blokker seems to equate legal and liberal constitutionalism (id., at 535). I will come to this in a moment. [169] Tushnet, “Constitutional Law: Critical and Comparative” (supra, fn. 106), at 8; Tushnet, “The Relation between Political Constitutionalism and Weak-Form Judicial Review” (supra, fn. 158), at 2250. [170] Tushnet, “Constitutional Law: Critical and Comparative”, at 8 fn. 6. [171] The cautionary note made supra, in fn. 167, on the different connotation that the term may acquire in the U.S. context applies here as well. I use the term in the sense that Paul Blokker uses it, pointing out to “liberalism’s tendency to depoliticization” and its “emphasis on legal rationality, the neutrality of the state, and formal-legal proceduralism;” Blokker, “Populism as a Constitutional Project” (supra, fn. 168), at 535-536. [172] Ginsburg, Huq & Versteeg, “The Coming Demise of Liberal Constitutionalism?” (supra, fn. 8), at 239-240. [173] Mark Tushnet calls these “varieties” of constitutionalism, in which he includes illiberal, authoritarian, or Bolivarian constitutionalism; see Tushnet, “Constitutional Law: Critical and Comparative” (supra, fn. 106), at 10 fn. 8. Mark Tushnet, “Varieties of Liberalism,” in Handbook of Comparative Constitutional Change (Alkmene Fotiadou & Xenophon Contiades eds., 2020 forthcoming). [174] Ginsburg, Huq & Versteeg, “The Coming Demise of Liberal Constitutionalism?” at 239. [175] For a critique see Paul Scott, “(Political) Constitutions and (Political) Constitutionalism,” German Law Journal 14 (2013), 2157-2183. [176] This is most apparent in Bellamy’s book, especially chapter 6 on “the democratic constitution;” see Bellamy, Political Constitutionalism (supra, fn. 6), at 209-259. See also, e.g., Jedediah Purdy, “Presidential Popular Constitutionalism,” Fordham Law Review 77 (2009), 1837-1871, at 1837 (equating popular with democratic constitutionalism). [177] The passage from Unger’s work mentioned below is quoted by both Larry Kramer and Richard Bellamy in their books. See Kramer, The People Themselves (supra, fn. 5), at 241-242; Bellamy, Political Constitutionalism (supra, fn. 6), at 1-2, 209. [178] Roberto Mangabeira Unger, What Should Legal Analysis Become, London - New York: Verso, 1996, at 72. [179] Id., at 72-73. [180] Blokker, “Populism as a Constitutional Project” (supra, fn. 168), at 548-551. [181] The epithet “ordinary” (as in ordinary politics, citizens, law, legislation and the like) appears 55 times in Tushnet’s book, 121 times in Kramer’s, and 35 times in Bellamy’s. See Tushnet, Taking the Constitution Away from the Courts (supra, fn. 4), passim; Kramer, The People Themselves (supra, fn. 5), passim; Bellamy, Political Constitutionalism (supra, fn. 6), passim. [182] Tushnet, “Constitutional Law: Critical and Comparative” (supra, fn. 106), at 5. “This is an application of the Critical Legal Studies slogan ‘Law is Politics’ to constitutional law,” he adds (id.). [183] See, generally, Yascha Mounk, The People vs. Democracy: Why Our Freedom is in Danger and How to Save it, Cambridge, MA, and London: Harvard University Press, 2018. In exactly the same sense that liberal constitutionalism cannot be undemocratic, since the democratic element is contained in constitutionalism, democratic constitutionalism cannot be illiberal, since the liberal element is also contained in constitutionalism. [184] Tomkins, “What’s Left of the Political Constitution?” (supra, fn. 160), at 2285. [185] Law 3838/2010, Arts. 1, 14 and 17, published on 24.3.2010 (Official Gazette A 49). [186] Council of State, Decision 460/2013 (Plenary), decided on 4.2.2013. [187] Law 4051/2012, Art. 6, published on 29.2.2012 (Official Gazette A 40), and Law 4093/2012, Art. first, subparas. IA.5 and IA.6, published on 12.11.2012 (Official Gazette A 222). [188] Council of State, Decision 2288/2015 (Plenary), decided on 10.6.2015. [189] Constitution of Greece, Art. 16, para. 2. [190] Constitution of Greece, Art. 3. [191] Special religious classes are offered in some parts of the country for pupils of the Muslim minority and the Jewish community. [192] Ministerial Decision 143575/2016, published on 13.9.2016 (Official Gazette B 2920). [193] Council of State, Decision 660/2018 (Plenary), decided on 20.3.2018. [194] For a challenge on both these assumptions, see Paul Yowell, Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review, Oxford: Hart Publishing, 2018, at 115-130. [195] United States v. Carolene Prods. Co., 304 U.S. 144, at 152 fn. 4 (1938). [196] See Akritas Kaidatzis, “Socio-economic rights enforcement and resource allocation in times of austerity: The case of Greece 2015-2018” (unpublished paper), available at the Academia website: https://www.academia.edu/39174425/Socio-economic_rights_enforcement_and_resource_allocation_in_times_of_austerity_The_case_of_Greece_2015-2018. [197] When the decision came out, a leading expert in social security, professor Manos Matsaganis, commented in an op-ed that it “constitutes a gigantic transfer of resources and rights in favor of the most well-off of today’s pensioners, and to the detriment of the poor, the unemployed and the younger generations.” See Athens Voice, 22.6.2015, available at: http://www.athensvoice.gr/politiki/oli-i-alitheia-gia-asfalistiko-kai-tis-syntaxeis [in Greek]. [198] Tushnet, “Constitutional Law: Critical and Comparative” (supra, fn. 106), at 7-8 (emphasis in original). [199] Tushnet, Taking the Constitution Away from the Courts (supra, fn. 4), at 124; what Tushnet calls “[e]lite skepticism about popular commitment to constitutional values” (id., at 127). [200] Law 4332/2015, Art. 1, published on 9.7.2015 (Official Gazette A 76). [201] For instance, and in the context of a different but comparable case (concerning not cuts in pensions but cuts in civil servants’ salaries), see similar claims made in a Brief of the General Accounting Office of the Ministry of Finance, submitted to the Council of State on 25.1.2019 (on file with the author). [202] Actually, this is not completely true. There are some signs of a revitalization of the concept, at least outside the U.S. context where it was initially developed in the 1990s. A prominent example is recent work by the Italian legal historian Lucia Corso. See Lucia Corso, “What does Populism have to do with Constitutional Law? Discussing Populist Constitutionalism and its Assumptions,”, Rivista di filosofia del diritto 3(2014), 443-470; Lucia Corso, I due volti del diritto. Élite e uomo comune nel costituzionalismo americano, Torino: G. Giappichelli Editore, 2016. [203] See infra, fn. 10. [204] See infra, fn. 182. [205] See infra, fn. 8.

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