030442 SE Populism and the Constitution: The Persistence of an Ancient Problem (2026S)

According to modern constitutional theory, the people are the authors of the constitution. Populist politicians claim to have the support of the sovereign citizenry. So why should populist parties, once they are in power, allow themselves to be constrained by existing constitutional law, when they supposedly give the people an authentic voice? This is the fundamental constitutional dilemma of populist politics. Populism introduces crude democratic majoritarianism into constitutional law. This usually conflicts with established procedures for constitutional change. Recent conflicts in Poland, Hungary, and the United States offer examples of what this means in practice. This seminar examines the appeal and dangers of populism from a historical and comparative perspective. As a phenomenon, it is not new. It is rooted in ancient suspicion of the people (“the many”) and continues to result in a wide variety of efforts to curb the democratic majority (e.g., through “militant democracy”). However, it should be borne in mind that constitutional systems that do not respond to changing attitudes among the population are likely to be perceived as rigid and out of touch with reality. Is it possible to find a balance?