I argue that the core difference between popular constitutionalism and populist constitutionalism lies on the degree of anti-elitism supporting constitutional changes. Popular constitutionalism can be defined as comprising those constitutional theories, mostly carried out by US constitutional scholars starting from the late 1980s, who support an anti-elitist reading of the constitution and acknowledge the role of ordinary people in the system of checks and balances. All authors espouse the idea that ordinary constitutional devices, such as checks and balances, are not sufficient per se to avoid exploitation by elites. Populist constitutionalism radicalizes the ambitions of popular constitutionalists and propose to use constitutional change mainly to radically neutralize elite power and sometimes to entrench the new populist elite. Unlike popular constitutionalism, populist constitutionalism is infused of rigidity and legalism and poses a threat to liberal values.
In order to respond to the Covid-19 pandemic, governments took several measures that restrict, sometimes severely, fundamental rights. While the measures themselves raise serious rule-of-law concerns, the way they are taken, procedurally, raise in some cases even greater democratic concerns. Restrictions, after all, are expected to be temporary; the way they are decided however may accelerate tendencies that enable backsliding into authoritarian constitutionalism. Decisions tend to be made by governments rather that parliaments, by central rather than local authorities, by stealth rather than transparently, restrictively and repressively rather than proactively. Examining Greece as its case study the paper argues that democratic constitutionalism, with its emphasis on transparency, public deliberation and greater popular participation in decision-making, is even more necessary in times of crisis, in order to prevent making crisis-management into a pretense for authoritarianism.
The authoritarian tendencies of populist governments (manipulating the constitution and/or the electoral system so as to tighten their grip on power, curtailing the independence of the judiciary, attacking independent media and NGOs, denigrating liberal values, promoting nationalism and chauvinism etc.) are firmly established in the literature. But what about the understudied, though ubiquitous, companion of populism, namely anti-populism, i.e. a political discourse that operationalizes the pejorative connotations of populism? In particular, what if anti-populist discourse may support practices similar to the ones which are ascribed to authoritarian populism? I shall explore this possibility by taking a closer look at constitutional developments in Greece during the pandemic. Before that, I shall attempt to define anti-populism from the standpoint of constitutionalism, drawing from the (sparse) literature on anti-populism in the field of political and social theory.
The need to deal with the significant economic impact of the recent pandemic has prompted the government to once again seek changes to the law governing abuse of office. Although the underlying inspiration for the reform is to circumscribe the sphere of responsibility of public administrators, jurisprudence has intervened to curb the more innovative aspects of the reform. To demonstrate the limits and contradictions of such a reaction and attempt to promote the need for interventions aimed at maintaining blanket law and hyper-constitutionalisation at safe distance, this paper shall analyse American law regulating crimes against public administration and will try to highlight the merits of an approach that observes separation of powers and a guarantee culture.
Epistemic discretion usually has been considered as an issue of who should decide upon legal issues which rely on epistemic data, the Courts or the Representative Bodies? The response depends upon different factors, and each of them attributes a significant role on different aspects of the distribution of power amongst state organs. Yet, pandemic’s management seems to dismantle completely the check and balances system which is an integral part of any functional democracy. Representative bodies are set aside since they are too slow in taking decisions. The executive branch undertakes the role of legislator under conditions of extremely limited political accountability and the Courts have a very limited role, and in fact they can act only ex post since even if they rule about the legality of the measures their rulings very often are non – effective due to the constant implementation of new measures that are in the same route.
Constitutional freedoms are being restricted severely during the pandemic not because this is the only way to save lives, but because of the unwillingness of the representatives to assume their responsibility and turn the opinion of experts into just policies and durable solutions. In times of a health crisis, a robust health system is needed, along with just social and economic policies. When representatives do not take action to ensure these, instead they form a protected elite, constitutional rights are in danger by restrictions, as the most simple solution. Disappointed, people will turn, in the most optimistic scenario, to the Constitution for protection, either as a legal text or as a political symbol of equality and freedom. Legitimisation of the measures is equated then with their constitutionality, as it is declared by academic scholars or the courts. However, whether constitutional or not, the legitimation of these measures will be finally estimated in the next elections.