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Reactive vs structural approach: A public law response to populism

Published online by Cambridge University Press:  13 June 2019

ITAM (Instituto Tecnológico Autónomo de México) Rio Hondo No.1, Col. Progreso Tizapán, 01080, Ciudad de México, México


Contemporary scholarship mainly focuses on the crisis of political representation as the key facilitator behind the emergence of populism. If so, populism urges public law to revisit and rethink institutional designs. This article addresses two possible responses to populism. On one hand, an intuitive response could be to hamper popular participation by avoiding plebiscites, referendums or any other kind of public consultation. Alternatively, it is possible to respond to populism from a structural point of view. In my opinion, to resist populism public law should take into account the lack of responsiveness and accountability of representative systems. The article puts forward a proposal in that direction; it advances a response to populism consisting of new institutional systems that generate strong participatory mechanisms to incorporate ‘the popular’. In doing so, the article uses the new Latin American Constitutionalism as an example of both the potentialities and difficulties of designing institutional systems in public law. In the wake of rising populism, it contributes to the existing debate by criticising populism and its constitutional expression, as well as developing arguments in favour of popular constitutionalism.

Copyright © Cambridge University Press 2019 

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1 Roberts, K, ‘Populism, Political Mobilizations, and Crisis of Political Representation’ in de la Torre, C (ed), The Promise and Perils of Populism: Global Perspectives (University Press of Kentucky, Lexington, KY, 2015) 140–1.Google Scholar

2 A good example is provided by Finland, which was not affected by the global economic crisis and despite it, the populist True Finns party obtained support while ‘claiming that their generous welfare state was threatened by the EU bailout programs and by an invasion of immigrants, both permitted by the mainstream parties’. C Mudde and C Rovira Kaltwasser, Populism: A Very Short Introduction (Oxford University Press, Oxford, 2017) 106.

3 Ibid, 2, 98–9.

4 See Barr, R, ‘Populists, Outsiders and Anti-Establishment Politics’ (2009) 15(1) Party Politics 29.CrossRefGoogle Scholar Some scholars have described this phenomenon as post democracy’, a condition according to which the extent to which governing elites can relate at all responsively to popular interests is increasingly limited by the international political economy (globalisation). See C Offe, ‘Referendum vs. Institutionalized Deliberation. What Democratic Theorists Can Learn from the 2016 Brexit Decision’ (2017) 146(3) Daedalus 4. For the European context see also R Huber and S Ruth, ‘Mind the Gap! Populism, Participation and Representation in Europe’ (2017) 23(4) Swiss Political Science Review 462; D Halikiopoulou and S Vasilopoulou, ‘Breaching the Social Contract: Crises of Democratic Representation and Patterns of Extreme Right Party Support’ (2018) 53(1) Government and Opposition 26. Available at <>.For a typology of representational crisis that allows populist mobilisation see Roberts (n 1) 147–50.

5 Zilla, C, ‘Defining Inclusion from the Perspective of Democracy and Citizenship Theory’ (2016) IPSA Congress, 9.Google Scholar

6 Ibid.

7 This would be the case in contexts of stabilisation of cartel parties’, in which ‘colluding parties become agents of the state and employ the resources of the state to ensure their own collective survival’. Katz, RS and Mair, P, ‘Changing Models of Party Organization and Party Democracy: The Emergence of the Cartel Party’ (1995) 1(1) Party Politics 5.CrossRefGoogle Scholar In such contexts, party programmes become similar and the degree to which electoral outcomes can determine government actions is reduced. Ibid, 22. In this way, parties can appear to form a self-interested governing caste that is insulated from popular needs and concerns, and therefore, generates detachments from their constituents. See Roberts (n 1) 149.

8 Of course, populism does not solve these problems in terms of concrete realisation of those democratic promises, but uses them as a discursive strategy to gain the support of people. As Jan Werner Müller puts it: ‘Populism is not a corrective to liberal democracy … but it can be useful in making it clear that parts of the population really are unrepresented.’ Müller, JW, What Is Populism (University of Pennsylvania Press, Philadelphia, PA, 2016) 75–6, 103.CrossRefGoogle Scholar

9 I accept the idea that ‘Inclusion is a key dimension of democracy that underlines the principles of liberty and civic and political equality for all.’ (Original emphasis.) See Zilla (n 5) 2.

10 As a matter of fact, some relevant scholars are doing so. See e.g. Graber, M, Tushnet, M and Levinson, S (eds), Constitutional Democracy in Crisis? (Oxford University Press, New York, NY, 2018).Google Scholar

11 Similarly, Hailbronner and Landau summarise two different constitutional responses to populism: one is to use courts or other constitutional tools as a form of resistance against populist pressures, while the other is to respond to the root popular impulses that lead citizens to choose populists leaders. See Hailbronner, M and Landau, D, ‘Introduction: Constitutional Courts and Populism(April 2017) International Journal of Constitutional Law Blog available at <>..>Google Scholar

12 Although it is commonly accepted that plebiscite and referendum are synonymous terms because both are methods of direct popular pronouncement, in this article, I will differentiate them. On one hand, I will use the term ‘referendum’ as a method of referring to a question or a set of questions to the electorate directly rather than allowing them to be settled by the people’s representatives in the legislature. See Robertson, D, A Dictionary of Modern Politics (Europa Publications, London, 1993) 412.Google Scholar This term, as used by the Venezuelan and Bolivian constitutions, is limited to big constitutional issues, and it can be initiated by the legislature, the executive or electorates themselves. On the other hand, I will use the term ‘plebiscite’ to describe a mechanism which allows voters to decide whether to approve or not a course of action about ordinary policy issues. In this understanding, plebiscites can be initiated only by the government and they offer to citizens a ‘take it or leave it’ choice. ‘Because a plebiscite is commonly regarded as highly manipulative, the term has a negative connotation.’ See Morel, L, ‘Referendum’ in Rosenfeld, M and Sajó, A (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, Oxford, 2012) 501.Google Scholar This mechanism, for instance, is provided in the Colombian constitution.

13 This approach is described in Part III.

14 Roberts (n 1) 156.

15 Zilla, C, ‘El acceso al poder, procesos electorales y partidos políticos’ (6 December 2016) Working Paper, Ius Constitutionale Commune en América Latina y las Estructuras del Estado Conference (Max Planck Institute, Heidelberg).Google Scholar

16 Meny, Y and Surel, Y, ‘The Constitutive Ambiguity of Populism’ in Meny, Y and Surel, Y (eds), Democracies and the Populist Challenge (Palgrave Macmillan, Basingstoke, 2002) 1;CrossRefGoogle Scholar Weyland, K, ‘Clarifying a Contested Concept: Populism in the Study of Latin American Politics’ (2001) 34(1) Journal of Comparative Politics 1;CrossRefGoogle Scholar Rovira Kaltwasser, C, ‘The Ambivalence of Populism: Threat and Corrective for Democracy’ (2012) 19(2) Democratization 184; Mudde and Rovira Kaltwasser (n 2) 2.CrossRefGoogle Scholar

17 Thus, the characteristics of Latin American populism are hardly the same as those expressed in the US or Russia in the 19th century, and even less with current European right-wing populism. That is why some authors see no other way of defining populism but according to the particular circumstances in which it occurs, or constructing a taxonomy of various types of populism, or finally, offering some sort of ideal-type. See Taggart, P, ‘Populism and the Pathology of Representative Politics’ in Meny, Y and Surel, Y (eds), Democracies and the Populist Challenge (Palgrave Macmillan, Basingstoke, 2002) 62, 66.Google Scholar Other scholars, however, emphasise the common historical root of modern populism and define it as a global anti-liberal phenomenon. See Finchelstein, F, ‘Returning Populism to History’ (2014) 21(4) Constellations 467.CrossRefGoogle Scholar

18 Arditi, B, ‘Populism as an Internal Periphery of Democratic Politics’ in Panizza, F (ed), Populism and the Mirror of Democracy (Verso, New York, NY, 2005) 72, 77.Google Scholar

19 Urbinati, N, Democracy Disfigured. Opinion, Truth, and the People (Harvard University Press, Cambridge, MA, 2014) 7–9, 128–9.CrossRefGoogle Scholar

20 Ibid, 129; Mudde, C, ‘The Populist Zeitgeist’ (2004) 39 Government and Opposition 541, 561;CrossRefGoogle Scholar Canovan, M, ‘Taking Politics to the People: Populism as the Ideology of Democracy’ in Meny, Y and Surel, Y (eds), Democracies and the Populist Challenge (Palgrave Macmillan, Basingstoke, 2002).Google Scholar

21 It is possible to find different definitions of populism, which aim to overcome the aforementioned difficulties. Populism is defined primarily as ‘a political strategy’, see Weyland (n 16) 14. Secondly, populism as a particular style of political communication; and finally as an ideology, see Mudde (n 20) 543. In this article, populism will be understood in these overlapping ways, considering it as a spectre of democracy (always connected with democratic politics). See Arditi, B, ‘Populism as a Spectre of Democracy: A Response to Canovan’ (2004) 52 Political Studies 141.CrossRefGoogle Scholar Another definition is proposed by E Laclau, On Populist Reason (Verso, London, 2005) 222, for whom populism is directly ‘the very essence of the political’.

22 Canovan (n 20) 34; Urbinati (n 19) 147.

23 Part of the populist rhetoric is the assertion that the people have been betrayed by those in charge. See Meny and Surel (n 16) 12.

24 In a clear reference to Schmitt, C, El Concepto de lo Político (Alianza Editorial, Madrid, 1999) 56.Google Scholar There are even theorists who prefer to characterise populism from a negative conception, that is, as an ‘enemy’ to fight and not from the positive term of the ‘people’ or their recognition. See Savage, R, ‘A Comparison of “New Institutionalized” Populism in Venezuela and the USA’ (2014) 21(4) Constellations 518, 520.CrossRefGoogle Scholar

25 Urbinati (n 19) 131; Müller (n 8) 101.

26 Meny and Surel (n 16) 9.

27 Urbinati (n 19) 129; Taggart (n 17) 67. Although, populism exists only in representative systems as a permanent shadow of representative politics. Müller (n 8) 101.

28 Meny and Surel (n 16) 16. On the ambivalent relationship between populism and democracy, see Rovira Kaltwasser (n 16).

29 Savage (n 24) 520, 527. After all, as Müller has noticed: ‘populists are not generally “against institutions” … They only oppose those institutions that, in their view, fail to produce the morally correct political outcomes. Populists in power are fine with … their institutions’ (original emphasis). Müller, JW, ‘Populist Constitutions – A Contradiction in Terms?’ (April 2017) International Journal of Constitutional Law Blog, available at <>.Google Scholar

30 J Rincón Salcedo, ‘Las democracias andinas, entre “populismo constitucional” y “constitucionalismo popular”’ (June 2006) 3 Visages D´Amérique Latine 33, 35.

31 It is not necessary that all these features are given in order to identify populist reforms or constitutions; it is enough that some of these are present.

32 G Negretto, ‘El populismo constitucional en América Latina. Análisis crítico de la Constitución Argentina de 1949’ in A Luna-Fabritius, P Mijangos y Gonzalez and R Rojas Gutierrez (coords), De Cádiz al Siglo XXI. Doscientos años de constitucionalismo en México e Hispanoamérica (1812–2012) (Taurus, México, 2012) 345, 371. The 2011 constitution of Hungary is a clear example, where ‘the key parts of the constitution-drafting process occurred behind closed doors … public debate never occurred … the only alterations that had any chance of passage were those submitted by Fidesz. Democratic opposition parties, whose proposals were virtually all rejected, eventually walked out of the chamber and did not vote on the final constitution … the new constitution passed parliament by the requisite two-thirds vote (all Fidesz members) and was signed by the president … without even contemplating a public referendum to ratify the result.’ See M Bánkuti et al., ‘Disabling the Constitution’ (2012) 23(3) Journal of Democracy 141–2.

33 Bernal, A, ‘The Meaning and Perils of Presidential Refounding in Latin America’ (2014) 21(4) Constellations 440, 452.Google Scholar

34 One problem of this kind of participation is that there is no way to make sure that people support for the constitution is due to its particular merits, or it is based on different considerations, such as the support for the leader, the hope for a change, the expression for disapproval towards the previous political order, and so on. A similar understanding in Offe (n 4) 7–9, 14.

35 Roberts (n 1) 143. See also Barr (n 4) 35, 36.

36 Good examples are the multiple reforms that Chavez and Correa made to the 1999 constitution of Venezuela and 2008 constitution of Ecuador, respectively, or now, the constituent assembly that Maduro is supporting for Venezuela.

37 Although on this matter we should consider the context in which it occurs. Since, if you have an extremely rigid constitution with judicial supremacy, making the path of constitutional reform difficult and facing long-standing interpretive struggles with the judiciary, perhaps the measure may not be objectionable.

38 These kinds of contents allow applying the concept of constitutional populism to older populisms (as long as those populisms have reformed their constitutions) as well as to neoliberal populisms. In the case of Menem (Argentina), one of the main purposes of the 1994 constitutional reform was to allow re-election and to increase the power of the executive, for instance establishing more expansive decree authority. Another measure Menem took was to pack the Supreme Court increasing the number of Justices from 5 to 9.The same applies to Fujimori in Perú, who disbanded opposition-controlled parliaments and imposed a new constitution that greatly expanded presidential attributions. See Weyland, K, ‘Neoliberal Populism in Latin America and Eastern Europe’ (1999) 31(4) Comparative Politics 379.CrossRefGoogle Scholar In the definition I am proposing there is no relation between a constitutional populism and a specific economic policy.

39 Erazo, JP Sarmiento, ‘Populismo constitucional y reelecciones, vicisitudes institucionales en la experiencia sudamericana’ (2013) 11(1) Estudios Constitucionales 569, 572.Google Scholar

40 Negretto (n 32) 346, 368. Blokker also characterises ‘populist constitutionalism’ content as reflecting a critical attitude (or ‘legal resentment’) towards liberal constitutionalism and liberalism’s justification and rationalisation of society. See Blokker, P, ‘Populist Constitutionalism’ (May 2017) International Journal of Constitutional Law Blog, available at <>.Google Scholar

41 Müller (n 29). However, for some scholars this is not a specific problem of populism. As Zilla explains, another risk of representative democracy is the future choices’ foreclosure, which means ‘that today’s majority or ruling minority deeply constrains the political choices available in the future’. See Zilla (n 5) 9.

42 Müller (n 29) quoting Dieter Grimm.

43 Dixon, R, ‘Populist Constitutionalism and the Democratic Minimum Core’ (April 2017) International Journal of Constitutional Law Blog, available at <>.Google Scholar In fact, some scholar have noticed that this is actually the authoritarian side of liberal-democratic constitutionalism. In the words of Frankenberg, the authoritarian side of the constitutional moment is: ‘closing constitutional debate and submitting a people, majority or minority to a covenant, forcing a collective identity upon an internally fragmented society, offering constitutional protection to some interests, claims and actions, and, with the same coup de main, excluding others. Those who lost … are relegated to the side-lines where they have to wait for their historical chance to demystify the established authority.’ G Frankenberg, ‘Authoritarian Constitutionalism – Coming to Terms with Modernity’s Dreams and Demons’ (2018) Research Paper of the Faculty of Law of the Goethe University Frankfurt/M No 3, 7.

44 Negretto (n 32) 343.

45 Urbinati (n 19) 152, 159. In the words of Schmitt: ‘Against the will of the people, especially an institution based on discussion by independent representatives has no autonomous justification for its existence’, quoted in ibid, 160.

46 Müller (n 29).

47 Laclau (n 21) 123.

48 In this sense, the political campaign pro ‘no’ was full of emotional discourse and misinformation. Some of the circulating slogans were against ‘castro-chavismo’, terrorism, impunity, ‘gender ideology’ or president Santos himself. None of those things was under question in the plebiscite and allowed a great polarisation within society. See A Gómez-Suárez, El triunfo del No: la paradoja emocional detrás del plebiscito (Ícono Editorial, Bogotá, 2016).

49 Until now, the Constitutional Court is defining the way in which the agreement would be possible.

50 A derogatory term for the plebiscite.

51 A clear example, in response to Donald Trump’s election can be seen in S Gardbaum and R Pildes, ‘Populism and Democratic Institutional Design: Methods of Selecting Candidates for Chief Executive in the United States and Other Democracies’ (2017) The Jean Monnet Working Paper 5/17, available at <>.

52 It is worth noting that the Constitutional Court in Colombia could resist power threats and pressures, and in this sense it is considered a well-functioning Court. See J González-Jácome, ‘In Defense of Judicial Populism: Lessons from Colombia’ (May 2017) International Journal of Constitutional Law Blog, available at <> and J González-Bertomeu, ‘Working Well Is The Best Strategy: Judges under Populism’ (May 2017) International Journal of Constitutional Law Blog, available at <>. Nevertheless, this is not the story in other countries under populist regimes, where the first measure governments take is to dismantle any kind of judicial resistance.

53 Gargarella, R, Latin American Constitutionalism, 1810–2010: The Engine Room of the Constitution (Oxford University Press, New York, NY, 2013) 5.CrossRefGoogle Scholar

54 Arato, A, ‘Populism and the Courts’ (April 2017) International Journal of Constitutional Law Blog, available at <>.Google Scholar

55 ‘Or, more precisely, the risk is democracy unbounded from institutional constraints.’ See Issacharoff, S, ‘Safeguarding Democratic Institutions’ (April 2017) International Journal of Constitutional Law Blog, available at <>.Google Scholar

56 Müller (n 8) 94. Although it is very controversial whether National Socialism and fascism had pre-populist roots or not; the comparison is appropriate to the extent that it represents a public law response to the phase of a constitutional crisis.

57 Ibid, 96.

58 See Bickerton, C and Accetti, C Invernizzi, ‘Populism and Technocracy’ in Kaltwasser, C Rovira et al. (eds), The Oxford Handbook of Populism (Oxford University Press, Oxford, 2017) 337, 338.Google Scholar Rosanvallon, P, Democratic Legitimacy. Impartiality, Reflexivity, Proximity (Princeton University Press, Princeton, NJ, 2011).Google Scholar

59 Including under this term, malfunctioning of the political system: high levels of corruption, estrangement between the electorate and representatives, inability of the political class to put problems on the agenda and to debate solutions, lack of proper procedural or institutional instruments capable of channelling non-conventional views, new demands or needs, dissatisfaction with the political and economic results of government action, loss of trust in the representative system, etc. See Meny and Surel (n 16) 14. For this reason, scholars talk about the ‘reactive’ feature of populism which prevents it from having a particular ideological content. See Canovan (n 20) 32; Taggart (n 17) 68–9.

60 I am aware that it is difficult to speak of ‘a’ popular constitutionalism, but for practical reasons, in this article I will use the category in its ‘normative strand’ generalising common grounds in their ‘best light’. For distinctions within popular constitutionalism see Ortega, R Niembro, ‘Una mirada al Constitucionalismo Popular’ (2013) 191 Isonomía 38.Google Scholar For the distinction between the ‘normative’ and the ‘descriptive’ strands within popular constitutionalism, see M Tushnet, ‘Popular Constitutionalism and Political Organization’ (Spring 2013) 18 Roger Williams University Law Review 1.

61 Gargarella, R, ‘Prólogo’ in Alterio, AM and Ortega, R Niembro (eds), Constitucionalismo Popular en Latinoamérica (Porrúa, Ciudad de México, 2013).Google Scholar

62 Tushnet (n 60) 1.

63 We can distinguish ‘between the thick Constitution and the thin Constitution’, with popular constitutionalism vindicating the latter. See Tushnet, M, Taking the Constitution Away from the Courts (Princeton University Press, New Jersey, NJ, 1999) 9, 12.Google Scholar

64 According to Kramer, this is the basic principle of popular constitutionalism. See Kramer, LD, ‘Undercover Anti-Populism’ (2005) 73(4) Fordham Law Review 1343, 1344.Google Scholar

65 See Kramer, LD, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, New York, NY, 2004) 125.Google Scholar

66 The rejection of Judicial Review is based on empirical studies of the effects that it has had, demystifying the dominant visions and showing the limited capacity of the courts to stop or reverse policies adopted by the executive and legislative powers, or to directly impose their own agenda. See R Gargarella, ‘El nacimiento del constitucionalismo popular. Sobre The People Themselves, de Larry Kramer’ (April 2006) 112 Revista de libros de la Fundación Caja Madrid. Also Waldron, J, ‘A Right-Based Critique of Constitutional Rights’ (Spring 1993) 13 Oxford Journal of Legal Studies 1.CrossRefGoogle Scholar

67 Gargarella (n 66).

68 Tushnet, M, ‘Popular Constitutionalism as Political Law’ (2006) 81 Chicago-Kent Law Review 991.Google Scholar

69 The term ‘popular will’ is used in this article to refer to the capacity of ordinary people and civil society to form a majoritarian will in a given moment, within a contrast of different opinions, interests and preferences in order to take a decision about a public affair.

70 It is worth mentioning that this unity exists even considering differences among people. As Laclau explains, populism operates in a logic of equivalence–difference according to which ‘the equivalential moment presupposes the constitution of a global political subject bringing together a plurality of social demands’ and represents them hegemonically through empty signifiers. Laclau (n 21) 117.

71 Urbinati (n 19) 129. At this point the author tries to show how social movements such as ‘Occupy Wall Street’, as much as they have a populist rhetoric, cannot be cataloged as populist.

72 Ibid, 163. ‘the main political character of a democracy is not so much that the people are collectively involved but that they are involved as individuals, that they have an equal political liberty’ (original emphasis). Not all popular constitutionalists have made explicit their definition of the people and therefore the trend has been highly criticised. See e.g. Alexander, L and Solum, LB, ‘Popular? Constitutionalism?’ (2005) 118 Harvard Law Review 1594.Google Scholar

73 Mudde and Rovira Kaltwasser (n 2) 16. In fact, these authors considered the ‘general will’ as a core concept of the populist ideology.

74 Rousseau, JJ, The Social Contract (1792) Book 2, 3.Google Scholar

75 Mudde and Rovira Kaltwasser (n 2) 18.

76 See Saffon, MP and Urbinati, N, ‘Procedural Democracy, the Bulwark of Equal Liberty’ (2013) 41(3) Political Theory 452–3.CrossRefGoogle Scholar

77 Canovan, M, ‘Trust the People! Populism and the Two Faces of Democracy’ (1999) 47(1) Political Studies 2.CrossRefGoogle Scholar

78 Saffon, MP and González-Bertomeu, JF, ‘Latin American Populism: An Admissible Trade-off between Procedural Democracy and Equality?’ (2017) 24(3) Constellations 416.CrossRefGoogle Scholar

79 Urbinati (n 19) 134, 152. It is worth mentioning that populism cannot be equated to the plebiscitarian forms of democracy, although personalisation of power or ‘Caesarism’ makes the concepts overlap. Ibid, 172–5.

80 Saffon and Urbinati (n 76) 452.

81 Tushnet, M, ‘Derecho constitucional crítico y comparado’ in Gargarella, R and Ortega, R Niembro (eds), Constitucionalismo Progresista: Retos y Perspectivas. Un homenaje a Mark Tushnet (IIJ-UNAM, Ciudad de México, 2016) 1, 11.Google Scholar

82 On 14 June 2018 Argentina’s Chamber of Deputies approved a bill liberalising abortion laws after more than two months of public hearings, where more than 700 people – academics, doctors, Secretaries of Health, members of civil society, NGOs, Churches, ordinary people, and others – participated with defence and opposition statements in a historical deliberation.

83 According to art 101 of the Ecuadorian constitution: ‘The sessions of decentralized autonomous governments shall be public, and at these sessions there will be an empty seat that shall be held by a representative of the citizens, depending on the topics to be dealt with, for the purpose of participating in their debate and decision making’ (italics mines). Art 77 of the Citizens Participation Act regulates this mechanism, giving voice and vote to a citizen who is considered as a civil society representative. The modality under which she or he is elected and participate is regulated by every decentralised autonomous government where the institution takes place. See Ramírez, F and Espinosa, A, ‘Ocupando la silla vacía. Representación y participación en el tránsito posconstitutional del Ecuador’ (2012) 81 Cuadernos del Cendes 29, 109.Google Scholar

84 Art 198 of Bolivian Constitution is interesting because it allows Justices of the Plurinational Constitutional Court to be chosen by ballot. Although judicial selection processes can be considered as mechanisms of political accountability, they can be included as processes to mediate the popular will. See Tushnet, M, ‘Judicial Accountability in Comparative Perspective’ in Bamforth, N and Leyland, P (eds), Accountability in the Contemporary Constitution (Oxford University Press, Oxford, 2013) 69.Google Scholar

85 Section 33 of the Charter of Rights in Canada (1982) inaugurates the idea of constitutional dialogue. See Hogg, P and Bushell, A, ‘The Charter Dialogue between Courts and Legislatures’ (1997) 35 Osgoode Hall Law Journal 75;Google Scholar R Gargarella, ‘¿Por qué nos importa el diálogo? “La cláusula del no-obstante”, “compromiso significativo” y audiencias públicas: Un análisis empático pero crítico’ (2017) III Revista del Centro de Estudios Constitucionales 5, 161. Gargarella insists that dialogical practices must be institutionalised and non-discretionary, in order to allow equal participation.

86 According to the Indigenous and Tribal Peoples Convention, No. 169 ILO (1989), and the United Nations Declaration on the Rights of Indigenous Peoples (2007), which includes the right to free, prior and informed consent of indigenous peoples (art 10 and 29.2)

87 See e.g. Offe (n 4) 14–17.

88 Sierra, T Alfonso, Redistributing Through Property Rights? Race, Welfare and Collective Land Tenure Systems in Colombia and Mexico (Doctoral Dissertation, Sociology Department, University of Wisconsin-Madison, 2018) 15.Google Scholar The provision of collective property rights for indigenous peoples and Afro descendant communities is the specific right Alfonso Sierra analyses. In her words: ‘the existence of this differential right has provided the leverage for ethnic communities to claim autonomy in their territories, to demand the right to prior consultation for every administrative decision that may affect them and to become an equal other for the state and for the traditional land owners’.

89 Post, R, Citizens Divided: Campaign Finance Reform and the Constitution (Harvard University Press, Cambridge, MA, 2014) 5, 8.CrossRefGoogle Scholar

90 By precariousness I mean the non-permanent duration of the government.

91 Saffon and Urbinati (n 76) 442, 450.

92 I am following Zilla (n 15), for the differentiation between the expressive, political legitimation, deliberative, shaping and control functions of participation.

93 Tensions between centralisation of power and participatory mechanisms arise when the latter pretend to democratise access to political power, understanding access to political power not strictu sensu as power takeover but latu sensu as shaping power.

94 See Roberts (n 1) 143.

95 Organic participation ‘is spurred by civic groups acting independently of, and often in opposition to, government’; ‘Induced participation, by contrast, refers to participation promoted through policy actions of the state and implemented by bureaucracies’. (Original emphases.) Mansuri, G and Rao, V, Localizing Development. Does Participation Work? (The World Bank, Washington, D.C., 2013) 31–2.Google Scholar

96 R Ondrik, ‘Participatory Approaches to National Development Planning’, Vol. Manila, Filipinas: Asian Development Bank, available at <>.

97 See Alfonso Sierra (n 88).

98 Ibid, quoting USAID Colombia Land and Rural Development Program, available at <>.

99 Zilla (n 15).

100 Ibid.

101 Post (n 89).

102 Fernández, A Noguera, El sujeto constituyente: Entre lo viejo y lo nuevo (Trotta, Madrid, 2017) 145.Google Scholar

103 Roberts (n 1) 146.

104 I will refer to these constitutions as the ones that make up the NLC as long as their creation processes have been described as ‘ground-breaking’, ‘transformative’ or ‘re-foundational’. See Pastor, R Viciano and Martínez Dalmau, R, ‘Fundamento teórico del nuevo Constitucionalismo Latinoamericano’ in Pastor, R Viciano (ed), Estudios sobre el nuevo Constitucionalismo Latinoamericano (Tirant lo Blanch, Valencia, 2012) 11, 30;Google Scholar de Sousa Santos, B, Refundación del Estado en América Latina. Perspectivas desde una epistemología del Sur (Plural, La Paz, 2010) 85; and Bernal (n 33).Google Scholar

105 Gargarella, R, ‘El nuevo constitucionalismo latinoamericano: Promesas e interrogantes’, available at <>..>Google Scholar

106 Viciano Pastor and Martínez Dalmau (n 104) 21, 22.

107 Ibid, 16.

108 Here, the article follows the distinction made by Möllers between a separation of power as empowerment or as limitation of government, which corresponded with an understanding of freedom through public authority (positive freedom) and freedom from it (negative freedom) respectively. See Möllers, C, The Three Branches: A Comparative Model of Separation of Powers (Oxford University Press, Oxford, 2015) 40–3.Google Scholar The NLC correspond to the former understanding, which Holmes calls ‘positive constitutionalism’. See Holmes, S, ‘Precommitment and the Paradox of Democracy’ in Elster, J and Slagstad, R (eds), Constitutionalism and Democracy (Cambridge University Press, Cambridge, 1988) 195.CrossRefGoogle Scholar

109 Tushnet (n 68) 991. Viciano Pastor and Martínez Dalmau (n 104) 20, 36.

110 Waldron, J, Political Political Theory (Harvard University Press, Cambridge, MA, 2016) 34.CrossRefGoogle Scholar

111 Viciano Pastor and Martínez Dalmau (n 104) 37.

112 See F Palacios Romeo, ‘La reivindicación de la polis: Crisis de la representación y nuevas estructuras constitucionales de deliberación y participación en Latinoamérica’ in Storini, C and García (dirs), JF Alenza, Materiales sobre neoconstitucionalismo y nuevo constitucionalismo latinoamericano (Editorial Aranzadi, Pamplona, 2012) 147, 177.Google Scholar

113 G Pisarello, ‘El nuevo constitucionalismo latinoamericano y la constitución venezolana de 1999: balance de una década’ (November 2009) 1 Sin Permiso 10; e.g. art 70 of the Venezuelan constitution; in Ecuador, art 103-13; art 11 of Bolivian constitution.

114 Like the creation of the ‘Citizen Power’ in the constitution of Venezuela (Title V, Chapter IV), the ‘Power of Transparency and Social Control’ in the 2008 Ecuadorian (Fifth Chapter, Title IV), and the function of ‘Participation and social control’ in the 2009 Bolivian (art 241 and 242). Only the last one is outside the institutions of the State and recognised as a communitarian and circumstantial organisation of the people. See Noguera (n 102) 144–5.

115 See R Uprimny, ‘The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges’ (2011) 89 Texas Law Review 1587, 1595; also Sousa Santos (n 104) 118–22, in what is referred to as intercultural democracy.

116 See Noguera, A, ‘What Do We Mean When We Talk about “Critical Constitutionalism”? Some Reflections on the New Latin American Constitutions’ in Nolte, D and Schilling-Vacaflor, A (eds), New Constitutionalism in Latin America: Promises and Practices (Ashgate, London, 2012) 109.Google Scholar According to the author, the epitome of this recognition is the right to resistance considered expressly in art 98 of Ecuadorian constitution.

117 Viciano Pastor and Martínez Dalmau (n 104) 42. As expressed by Nolte, D and Schilling-Vacaflor, A (eds), ‘Introduction: The Times They Are A Changin’: Constitutional Transformations in Latin America since the 1990s’ in New Constitutionalism in Latin America. Promises and Practices (Ashgate, London, 2012) 3, 19,Google Scholar ‘the adoption of the new constitutions was part of bottom-up process, including legal mobilisation, and was among the central demands of social movements and citizens that were discontent with the previous social and political order’.

118 See Gargarella (n 53) 172–7.

119 I say to some extent because it is necessary to distinguish institutions and political practices of those countries.

120 de la Torre, C and Arnson, CJ (eds), ‘Introduction: The Evolution of Latin American Populism and the Debates over Its Meaning’ in Latin American Populism in the Twenty-First Century (Woodrow Wilson Center Press, Washington, D.C., 2013) 1, 4.Google Scholar

121 See C Rodríguez-Garavito, ‘Los derechos humanos y la “nueva” izquierda latinoamericana’ (12 March 2014) Open Democracy, available at <ésar-rodr%C3%ADguez-garavito/los-derechos-humanos-y-la-“nueva”-izquierda-latinoame>; B de Sousa Santos, ‘¿La Revolución ciudadana tiene quién la defienda?’ (9 May 2014) Diario Público España, available at <>.

122 R Gargarella, ‘El “nuevo constitucionalismo latinoamericano”: Un constitucionalismo que no termina de irse’ (4 February 2015) Working Paper, ITAM’s faculty seminar, 25.

123 Negretto (n 32) 370. It is worth noting that the author uses the terms referendum and plebiscite as synonymous.

124 Noguera (n 102) 45.

125 I will not discuss Ecuador for space reasons, but for relevant literature on the case see ibid 144; Fernández, A Noguera and Navas Alvear, M, Los nuevos derechos de participación ¿Derechos constituyentes o constitucionales? Estudio del modelo constitucional de Ecuador (Tirant Lo Blanch, Valencia, 2016);Google Scholar de la Torre, C (ed), ‘The Contested Meanings of Insurrections, the Sovereign People, and Democracy in Ecuador, Venezuela, and Bolivia’ in The Promise and Perils of Populism: Global Perspectives (University Press of Kentucky, Lexington, KY, 2015) 349;Google Scholar Bernal (n 33); de la Torre, C, ‘The People, Democracy, and Authoritarianism in Rafael Correa’s Ecuador’ (December 2014) 21(4) Constellations 457;CrossRefGoogle Scholar Montúfar, C, ‘Rafael Correa and His Plebiscitary Citizens’ Revolution’ in de la Torre, C and Arnson, CJ (eds), Latin American Populism in the Twenty-First Century (Woodrow Wilson Center Press, Washington, D.C., 2013) 295;Google Scholar Santamaría, R Ávila, ‘De la utopia de Montecristi a la distopía de la revolución ciudadana’ in et al. (eds), El correísmo al desnudo (Montecristi Vive, Quito, 2013) 70;Google Scholar Wolff, J, ‘New Constitutions and the Transformation of Democracy in Bolivia and Ecuador’ in Nolte, D and Schilling-Vacaflor, A (eds), New Constitutionalism in Latin America: Promises and Practices (Ashgate, London, 2012) 183;Google Scholar MA Cameron, ‘The State of Democracry in the Andes: Introduction to a Thematic Issue of Revista de Ciencia Política’ (2010) 30(1) Revista de Ciencia Política 5; C Bernal Pulido, ‘¿Es inconstitucional utilizar el procedimiento de enmienda para reformar la Constitución del Ecuador con el fin de establecer la relección indefinida del Presidente?’ Available at: <>.

It is worth noting that Rafael Correa did not run for presidency in 2017, engaging in that way in ‘ordinary politics’. Lenín Moreno won the 2017 elections and the Council of Citizens Participation and Social Control is now dismantling institutions such as the Constitutional Court due to the alleged link between its members and the former executive. See <>. J Wolff, ‘Ecuador after Correa: The Struggle over the “Citizens” Revolution’ (2018) 38(2) Revista de Ciencia Política 281.

126 Noguera (n 102) 46. The author calls this kind of democracy ‘mobilization democracy’.

127 As e.g. in the 1961 Venezuelan constitution the Senate was to authorise the President the promotion of officers, captains and colonels of the armed forces, while in the 1999 constitution this provision was eliminated.

128 The partial loss of legislative function was made via enabling law (art 236.8 of the constitution) that allows the president to legislate by executive actions. Ibid, 103.

129 In this sense, the issues to discuss are the ones that government is interested in; all broadcasting and media are dominated by the government, participation mechanisms are activated only to provide popular support to the leader, independently of the issue in question. In other words, participation has an instrumental character that pretends to legitimise an act of government.

130 Noguera (n 102) 101–9.

131 Barr (n 4) 40. Huber and Ruth (n 4) 464.

132 JF González-Bertomeu and MP Saffon, ‘Jan Werner Müller: What Is Populism?’ (2017) Book Review 15(4) I.CON 1234.

133 Noguera (n 102) 108, 137.

134 Ibid, 131, 151.

135 Ibid, 145. See (n 114).

136 Barr (n 4) 42.

137 Roberts (n 1) 143.

138 Huber and Ruth (n 4) 464 quoting R Dahl.

139 Roberts (n 1) 146.

140 Roberts, K, ‘Latin America’s Populist Revival’ (2007) 27(1) SAIS Review of International Affairs 14.Google Scholar

141 Thus the referendum to approve the 15 December 1999 Venezuelan constitution had an approval of 71 per cent of the vote. In the case of Ecuador, the referendum that called to consult the public on the need to reform the constitution (15 April 2007) had a support of 81.5 per cent of the vote. Meanwhile, the referendum to approve the constitution (28 September 2008) had a 65 per cent support. In the case of Bolivia, 61 per cent of voters approved the constitution in a referendum on 25 January 2009. Source: S Linares, ‘The Democratic Genesis of a Constitution: Venezuela, Ecuador and Bolivia in Comparative Perspective’ (presentation facilitated by the author, 2009).

142 Courtis, C and Gargarella, R, El nuevo constitucionalismo latinoamericano: promesas e interrogantes (United Nations-ECLAC, Santiago de Chile, 2009) 911.Google Scholar

143 Ibid, 17.

144 In the context of ‘fragile democracies’, the outcome of these contradictions is in favour of centralisation of power and in rescission of participation. See Issacharoff (n 55).