Monday, December 20, 2021

Mark Tushnet and Bojan Bugarič's "Power to the People"

Mark Tushnet is William Nelson Cromwell Professor of Law emeritus at Harvard Law School. Before teaching at Harvard, he was a Professor of Law at the University of Wisconsin Law School and Georgetown University Law Center. Bojan Bugarič is Professor of Law at Sheffield University, School of Law. Before teaching at Sheffield, he was a Professor of Law at the University of Ljubljana, School of Law.

They applied the “Page 99 Test” to their new book, Power to the People: Constitutionalism in the Age of Populism, and reported the following:
Page 99 of Power to the People discusses controversial developments in Polish and Hungarian constitutionalism under the leadership of the current governments, typically described as right-wing populist regimes. The page describes the techniques the governments used to “pack” the courts, including lowering the mandatory retirement age to force sitting judges out of office. It outlines the rather weak arguments available to the governments – mostly that sitting judges were too inclined to be sympathetic to the repudiated legacy of Communism. Finally, it connects these policies with a more defensible argument for court reform when a government comes into office with a comprehensive reform agenda and finds itself obstructed, or likely to be obstructed, by existing judges (or other “veto gates” in the constitutional system).

Page 99 captures one of our book’s themes: that we have to pay attention to the details of specific forms that populism takes if we’re to understand the relation between populism and constitutionalism. Populists “as such” aren’t always opposed to a thin but sensible definition of constitutionalism. They sometimes object to specific constitutional arrangements that block their ability to implement the programs they were elected to promote. In general we should evaluate the proposed constitutional revisions – such as court-packing or extension of presidential terms – by asking whether their adoption would make it easier to enact good programs (without making it easier as well to enact bad ones). We support this argument with a fair number of case studies of what populists have done when in power or as part of governing coalitions in Europe and Latin America, bringing together developments often treated only by specialists in each region. The scope of our case studies is one of the book’s important and distinctive features.

We argue that populists do often challenge existing constitutionally entrenched provisions, but aren’t “anti-institutional” in a general sense. We think that empowered democracy is more attractive than most of the alternatives on offer, such as technocratic governance, a libertarian-motivated reduction in the scope of government, or a continuation of existing, often gridlocked constitutional arrangements. We conclude the book with a discussion of what “power to the people” looks like in terms of institutions such as referendums, citizens assemblies, and deliberative polling. We think that the vision of such new institutions is quite attractive, and hope that their role in governance will continue to expand.
Learn more about Power to the People at the Oxford University Press website.

The Page 99 Test: Mark Tushnet's Taking Back the Constitution.

--Marshal Zeringue