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Constitutional Democracy in the Age of Populisms: A Commentary to Mark Tushnet’s Populist Constitutional Law

  • Valerio FabbriziEmail author


This contribution aims at discussing constitutional democracy in the age of populisms, by explaining how populist movements oppose liberal-democratic constitutionalism and by presenting the thesis of a so-called ‘populist constitutionalism’, as proposed by Mark Tushnet. In the first section, a general and analytic exploration of populist phenomena will be drawn, by focusing on the so-called thesis of a ‘populist’ constitutionalism. In the second part, Tushnet’s arguments for a populist constitutionalism will be presented, through the analysis of his two main contributions: Taking the Constitution Away from the Courts, in which Tushnet develops his critique of legal constitutionalism and judicial review as an undemocratic power by unelected justices, and Authoritarian Constitutionalism, a recent article in which Tushnet distinguishes between ‘authoritarian’ and ‘populist’ definitions of constitutionalism. In conclusion, such arguments will be discussed, by proposing a critical response to Tushnet’s position and presenting some risks of a majoritarian and populist constitutional democracy.


Populism Constitutionalism Democracy Authoritarianism Rule of law Mark Tushnet 



This paper has been originally presented at the Conference ‘Philosophy and Social Science’ held in Prague in May 16–20, 2018. I want to thank Alessandro Ferrara, Simone Chambers, David Rasmussen, Andrew Buchwalter, Daniel Gamper, Steve Winter, Cristina Lafont, Thomas Claviez, Axel Müller and Benjamin A. Schupmann for comments, questions, suggestions and remarks which helped me to improve this contribution. I am also indebted to the Italian Institute for Philosophical Studies in Naples (Istituto Italiano per gli Studi Filosofici), where I am currently a postdoctoral research fellow, for having supporting me in my research activity and for the opportunity to work in a dynamic and intellectually stimulating context.


  1. Azmanova, Albena. 2018. The populist catharsis: On the revival of the political. Philosophy and Social Criticism 44(4): 399–411.CrossRefGoogle Scholar
  2. Bilgrami, Akeel. 2018. Reflections on three populisms. Philosophy and Social Criticism 44(4): 453–462.CrossRefGoogle Scholar
  3. Blokker, Paul. 2017. Populist constitutionalism. In Routledge handbook of global populism, ed. Carlos de la Torre. Abingdon: Routledge.Google Scholar
  4. Brubaker, Rogers. 2017. Why populism? Theory and Society 46(5): 357–385.CrossRefGoogle Scholar
  5. Chemerinsky, Erwin. 2004. In defence of judicial review: A reply to Professor Kramer. California Law Review 92(4): 1013–1025.CrossRefGoogle Scholar
  6. Ferrara, Alessandro. 2018. Can political liberalism help us rescue ‘the people' from populism? Philosophy and Social Criticism 44(4): 463–477.CrossRefGoogle Scholar
  7. Kramer, Larry. 2004. Popular constitutionalism. California Law Review 92(4): 959–1011.CrossRefGoogle Scholar
  8. Müller, Jan-Werner. 2016. What is populism?. Philadelphia, PA: University of Pennsylvania Press.CrossRefGoogle Scholar
  9. Pozen, David E. 2010. Judicial elections as popular constitutionalism. Columbia Law Review 110(8): 2047–2134.Google Scholar
  10. Sandel, Michael. 2018. Populism, liberalism and democracy. Philosophy and Social Criticism 44(4): 353–359.CrossRefGoogle Scholar
  11. Tushnet, Mark. 1999. Taking the constitution away from the courts. Princeton, NJ: Princeton University Press.Google Scholar
  12. Tushnet, M. 2006. Popular constitutionalism as political law. Chicago-Kent Law Review 81: 991–1006.Google Scholar
  13. Tushnet, M. (March 26, 2009). Against judicial review. Harvard Public Law Working Paper No. 09-20.
  14. Tushnet, M. 2015. Authoritarian constitutionalism. Cornell Law Review 100(2): 391–462.Google Scholar

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© Springer Nature B.V. 2019

Authors and Affiliations

  1. 1.Department of History, Humanity and SocietyUniversity of Rome Tor VergataRomeItaly
  2. 2.Italian Institute for Philosophical StudiesNaplesItaly

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