Interview #39 — Democracy, Constitutions, and Populism

In this interview, Nadia Urbinati reflects on the democratic boundaries set by different types of constitutions, the evolution of Hungary from a populist democracy into an autocracy, the future of democracy in a post-pandemic scenario, the parallels and differences between this crisis and the last one. Moreover, we discuss how certain social aspects, such as education, health and climate change, should be addressed going beyond short-term, national interests. This could be the end for populism, but only if non-populist actors will manage to take advantage of the situation and restore the public sector.

How do populists undermine democracy, and in particular the separation powers, to establish an autocracy? A populist constitution, Urbinati claims, is a majority that constitutionalize itself, because the majority bends the constitution to justify an existing power instead of limiting any existing one. Democracy is now under a tremendous stress, and here we try to understand how populists actors can try to take advantage of the situation and to what extent different types of constitutions can prevent democratic erosion.  The words of Nadia Urbinati help us to understand the present and, crucially, to imagine our future.


economist_covid

The effect of democracies on the impact of the virus seems to be positive, but what about the impact of the virus on democracies? The graph is from The Economist and will probably need an update once complete data will be available. Moreover, it will be crucial to establish how ‘democratically’ these democracies acted during (and after) the pandemic.

 

1) By using a “war-rhetoric”, leaders around the world have passed emergency decrees and legislation expanding their reach during the pandemic. These special measures suspend the liberal democratic order, including restrictions to the rule of law, media freedom, personal and collective freedom. Do you think democracies can survive this semi-permanent state of crisis and emergency?

It depends from the countries we are talking about: if you consider Europe, the US, Australia, and Latin America, these democracies —with just few exceptions— remained within the limits set by their constitutions. However, there are different types of constitutions, each with its own specificities. Some constitutions are more ready to call for the state of emergency. This is the case of the US for example, where the president can suspend the habeas corpus, which is one of the fundamental rights. This already happened with Lincoln during the civil war, and with George W. Bush in the case of Hurricane Katrina. The US have a Republican constitution, and therefore it contemplates the figure of a ‘dictator’ that acts within the rules.

Others, like the Italian one, are parliamentary constitutions, and they do not envisage any dictatorial figure that can impose and manage a state of emergency. Because of the experience of fascism, Italy abolished the figure of the chief in charge of declaring the state of emergency; any decree by the Prime minister has to pass through the Parliament and to be thereby approved within a time limit.

Within the boundaries of constitutional and parliamentary constitutions, we cannot say that democracies ‘committed suicide’ or destroyed themselves. However, in Europe there are democracies that are structurally weak because they did not fully achieve a process of democratic constitutionalization. These countries show that in time of an emergency such as the present one, they risk going beyond these constitutional limits. This is the case of Hungary, which is an exception —a vulnus— within Europe. When the Italian opposition parties speak of undemocratic procedures and blame the government for excluding them from the decisional process, they are just lying. The government introduced the state of emergency on January 31 through a decree that was approved by the Parliament. Contrary to the paternalistic claims of Matteo Salvini (Lega) and Giorgia Meloni (Brothers of Italy), it is not the duty of the government to gather the two Chambers of the Parliament, because they can do so autonomously. The Parliament has remained open in the last months and is open now; it is up to the two Cambers to decide to convene. It is particularly absurd to hear Salvini and Meloni claiming that there is a coup, while at the same time they applaud Orbán.

 

2) Since we are speaking of the devil: authoritarian leaders are using the coronavirus crisis to strengthen their grip on power and weaken dissent and opposition. For example, Hungary de-facto is no longer a liberal democracy and probably not a democracy tout court. Does it still make sense to call Viktor Orbán a populist, or would it be more correct to call him an autocrat?

Orbán’s decisions pushed Hungary beyond the limits of constitutional democracy. The law that his majority passed in the parliament allows him to rule by decree with no need to be voted on by the parliament; this law lifts any limit to the Prime minister’s law-making powers. The Hungarian parliament voted on its futility. Therefore, Orbán is not just a populist leader in power: he is an autocrat. In fact, I base my last book, Me the People, around the following idea: populism in power is a democratic form of government. A populist government can operate within the limits that constitutional democracy concedes to the majority and although it stretches those limits, it does not break them.  It is not a dictatorial government, not yet.

Orbán’s case is different: he made a clear step outside the limits of parliamentary democracy and towards a dictatorial or autocratic government. And here we go back where we started, because one could ask: can democracy commit suicide? This point would ignite a very long and slippery discussion, but my point is: not all constitutions are the same. Populists in power risk going beyond constitutional democracy because they operate in two ways:

1) They generate a permanent electoral campaign against their enemies (we have seen it with Salvini in government, as well as with Trump) so as to be permanently on the trenches; they need to show on a constant basis that they will never be part of the establishment, which is a never sleeping enemy.

2) They can change the constitution. Paul Blokker wrote interestingly on populist constitutionalism, and claimed that the latter is characterized by extremely targeted modifications of the constitutions. Populists want to occupy the role of constituent power and may be tempted to weaken the separation of powers and restrain the autonomy of the judiciary power vis-à-vis the executive power, thus undermining the protection of rights. A constitutional democracy that gives all the power to a majority is an autocratic form of power. In the last decade, Hungary passed constitutional reforms that gave absolute power to the majority in terms of nominating or expelling judges, undermining the separation of powers.

A populist constitution is a majority that constitutionalize itself. The majority bends the constitution to justify an existing power instead of limiting any existing one. This means that constitutional principles are put in doubt. As Kelsen claimed, there are two hierarchically legal ordered levels: the first is the constitutional legal order —the basic level of legality and legitimacy— and the second is the ordinary legal order. The distance between these two levels is essential for the survival of constitutional democracy and the rule of law. When the gap is closed, ordinary legislation is constitutionalized and the government writes its own constitution, in order to ‘eternise’ itself. Although different as to their political programs, Evo Morales, Hugo Chávez, and Viktor Orbán all did this.

3) Historically, disease and destruction have led to greater equality, as those who survive are able to demand higher wages. At the moment, however, the world’s richest people are chartering private jets to set off for holiday homes or specially prepared disaster bunkers, get tested much more easily, and can afford establishing their own intensive care units at home. Meanwhile, the most vulnerable parts of society are put on the front line and have to pay the highest price: homeless people, workers with precarious or “flexible” employment, people in jail, workers who cannot work from home but need to be in a factory, working mothers, kids and teenagers, domestic abuse victims, people with mental issuesblack Americans, and so on. Do you think the 2008 economic crisis will serve as a cautionary tale or as a blueprint for the political reactions to the pandemic?

time_crisis

Lisbon, April 2020.

I am not an economist, but I see a crucial difference between this crisis and the last one. In 2007, the crisis was caused by the criminal activities of some financiers and bank investors who gambled with people’s money. They bet on future earnings, burning investments and savings of many people. The now “sanctified” President Obama did not punish those malpractices because while his prerogatives would have allowed him to punish them with the criminal code, he decided to make them pay some fines. But financial institutions already set aside money for that sort of situation and were more than happy to pay fines instead of risking jail. On that occasion, the state decided to save private multinational financial organizations and to de facto punish small investors, who had to wait years to see their savings or pension funds restored. The state decided that the priority was to “save the economy”, but in doing so the state did not protect ordinary people or the weaker. The Great Recession started like an infection within the big financial groups and crossed borders spreading all over the world, like this one, but it was an inherently financial crisis.

This crisis was born outside economy, and puts life itself in jeopardy, not simply saving. It is born as a global necessity that affects everybody and the economic consequences will affect the whole world. President Trump —who adopted the policy of taking from the poor by de-taxing the rich — is now willing to use public money to fund the health system. In this tragedy, a good outcome would be the general conviction that some sectors, such as health care and climate change, should become the object of global governance. This does not automatically imply that it will be a “good government”, but simply that these issues cannot be left to particular interests and the single states. The role of the public, the role of the state, is the great “discovery” of this crisis. Clearly, the state can also be misused for repression and other despicable misdeeds, but what interests me to underline here is that the private competition and the market logic of profit is truly bad idea in some sectors of vital importance. In Lombardy, for example, you have the excellence of great public hospitals in Pavia and Milan, while the rest of the territory is not truly taken care of and in effect is abandoned to itself with small and poorly supplied structures. The relevance of the public dimension and its homogeneous distribution through the territory of a state or a region is what this crisis has brought to the fore.  The idea of privatizing health care and giving public money to stimulate the private sector (as we have seen done in the last twenty years in several Italian regions) has proved to be a failure when it comes to education, research, and health, and now we are paying the consequences.

me the people

Me The People (Harvard University Press, 2019).

4) In your last book Me the People, you argue that populism is an “autoimmune disease of democracy”. However, especially in this climate, scholars like Jan-Werner Müller argue that mechanisms of political accountability must be strengthened, not weakened.  Do you think this context of emergency will prove to be an advantage for populists, or the virus will expose the weakness of populism?

Reason and common sense would lead us to say that is the end of populism: the way in which Trump and Bolsonaro reacted to this crisis show the bankruptcy of populism. In Italy, Salvini is currently at the opposition so we do not fortunately know how he would have handled the situation, but over the past years he has opposed mandatory vaccines, and he took pride in his anti-intellectualism and contempt for science. Moreover, he wanted to introduce the flat tax system, which would have implemented reversed redistribution taking from the poor to give to the rich. In my opinion, the tragic situation in Lombardy is the outcome of two phenomena: populism in government with the Lega North, and the logic of privatization. These two things go hand in hand, because populism does not mean policies that pursue the common good and policies that create advantages for the new rulers and their supporters. Populism means taking advantage of the people to empower e new elite.

However, we also have to consider the capacity of non-populist actors to take advantage of this situation. Political parties (and leftist parties particularly) must reorganize and restructure themselves, and finally recognize that the public sector has to be restored. If they fail to take this road and do not set realistic short-term goals and strategies, they will not be able to produce a convincing alternative to populism, something that we so badly need. A ‘big’ state in the hands of populist actors would raise concerns because they could use it to impose surveillance and repression (while managing the health care system). If the ‘big’ state that we need can be conquered by authoritarian leaders, it can be extremely dangerous.


NU_picNadia Urbinati is professor of Political Theory in the Department of Political Science, Columbia University. She specializes in democratic theory, theories of sovereignty and representation, and antidemocratic ideologies. Among her most recent books Democracy Disfigudred: Opinion, Truth and the People (Harvard University Press 2014; in Italian by Egea Bocconi 2014) and Me The People: How Populism Transforms Democracy (Harvard University Press 2019; in Italian by Il Mulino 2020).

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