Constitutional Resistance in Populist Times
| Published date | 01 December 2020 |
| Author | Paul Blokker |
| Date | 01 December 2020 |
| DOI | 10.1177/0067205X20955102 |
| Subject Matter | Articles |
Article
Constitutional Resistance in
Populist Times
Paul Blokker*
Abstract
The article departs from the discussion of constitutional mobilisation—the ‘process by which social
actors employ constitutional norms and discourses to advocate for constitutional change’
1
—to
introduce the concept of constitutional resistance—the public invocation of constitutional norms
and principles, in defence of a distinctive view of constitutionalism, in opposition to governing or
reform action by the authorities. Constitutional mobilisation and resistance are theorized on an
interdisciplinary and conceptual basis, suggesting that the study of the critical role of societal actors
in constitutional politics and in ‘constituent conflicts’ remains so far underexplored. The analysis of
constitutional resistance is particularly relevant in the contexts of authoritarian societies or
democratic societies that face increasing populist and authoritarian challenges. The article first
briefly explores various scholarly approaches that provide considerable contributions for the
development of a political sociology of constitutional mobilisation. It subsequently discusses
constitutional mobilisation and focuses in particular on constitutional resistance, a so far undis-
cussed dimension of constitutional mobilisation, exemplifying the latter by briefly exploring the
cases of Italy and Poland.
I Introduction
As recently argued by Bui, ‘[c]omparative constitutional scholarship has been dominated by the
questions of how courts are structured and how they shape constitutional law. However, consti-
tutional development is also driven by and responds to social mobilisation.’
2
‘Unfortunately,’ he
continues, ‘the emerging discipline of comparative constitutional law has largely neglected con-
stitutional mobilisation’.
3
In general, the role of social actors, social movements and civil society at
large in constitutional politics—the ongoing public debate about the relevance, interpretation and
meaning of the constitution—is less frequently discussed in comparative constitutional law
* University of Bologna. The author(s) acknowledges financial support for the research project Transnational populism and
European democracy (TRAPpED), of the Czech Science Foundation (Grantov´
a agentura ˇ
Cesk´
e republiky) (Standard
Project 18-25924 S). The author may be contacted at paulus.blokker@unibo.it.
1. Ngoc Son Bui, ‘Constitutional Mobilization’ (2018) 17(1) Washington University Global Studies Law Review 113, 116.
2. Ibid.
3. Ibid.
Federal Law Review
2020, Vol. 48(4) 511–528
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studies. Admittedly, there is an important and rich literature on how social mobilisation relates to
constitutional change in distinctive domestic contexts, such as the role of legal mobilisation in the
constitutionalisation of gender equality norms in Greece,
4
the relation between social protests and
legislation on internet surveil lance in Canada,
5
the right to abortion in Brazil
6
or the role of
environmentalist social movements in the extension of legal rights to nature in the Constitution
of Ecuador.
7
The domestic context in which this kind of literature is most developed is without a
doubt the United States.
8
While such analyses are insightful, they often tend to remain confined to specific domestic
contexts, to partial dimensions of constitutions (equality, environmental rights, privacy and so on)
and to stress in particular the legal-instrumental dimensions, not least regarding litigation, in the
promotion of rights. First, this creates an absence of systematic and comparative exploration and
conceptualisation of the notions of constitutional mobilisation, in particular with regard to con-
stituent dimensions. The latter refer to situations in which the fundamentals of constitutional orders
are invoked, criticised, and put to the test. Most studies focus on how social movements navigate
within and by means of existing systems of rules, but fail to analyse when and how social
movements question—or uphold—the fundamental or constitutional norms in their own right.
There is a lack of reflection on constitutional politics, that is, political mobilisation around
meta-constitutional dimensions (such as the ‘rule of law’, legality, popular sovereignty), secondary
rules and judicial institutions (regarding, for instance, court independence). Constitutional politics
may involve a constituent di mension of reform and change , particularly relevant in tim es of
populist constitutionalism.
A second under studied dimension i s that of constitutional resistance. As I argue below, constitu-
tional resistance, as a distinctivedimension of constitutionalmobilisation, is becoming a particularly
significant phenomenon in societies facing substantial populist pressure or even a populist ‘back-
sliding’. In contrast to constitutional mobilisation in general, resistance is not about bringing about
change or abouta constitutional dialoguebetween society and elites, but is ratherabout deep conflicts
over thefundamental nature of constitutionalorder, and, as such,leads to the obstructionor prevention
4. One important strand of research is the increasingly significant and insightful debate on gender and constitutionalism:
see Helen Irving, ‘More than Rights’ in Susan H Williams (ed), Constituting Equality: Gender Equality and
Comparative Constitutional Law (Cambridge Unive rsity Press, 2009) 75; Helen Irving, Constitu tions and Gender
(Edward Elgar Publishing, 20 17); Dia Anagnostou, ‘Gender C onstitutional Reform and Fe minist Mobilization in
Greece and the EU: From Formal to Substantive Equality?’ (2013) 28(2) Canadian Journal of Law and Society 133;
Ruth Rubio-Mar´ın,‘Women and Participatory Constitutionalism’ (2020) 18(1) International Journal of Constitutional
Law 233.
5. Vanessa MacDonnell, ‘Internet Surveillance and Popular Constitutionalism’ in Fergal Davis, Nicola McGarrity and
George Williams (eds), Surveillance, Counter-Terrorism and Comparative Constitutionalism (Routledge, 2014) 313.
6. Alba Ruibal, ‘Social Movements and Constitutional Politics in Latin America: Reconfiguring Alliances, Framings and
Legal Opportunities in the Judicialisation of Abortion Rights in Brazil’ (2015) 10(4) Contemporary Social Science 375.
7. Maria Akchurin, ‘Constructing the Rights of Nature: Constitutional Reform, Mobilization, and Environmental
Protection in Ecuador’ (2015) 40(4) Law & Social Inquiry 937.
8. Jack M Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011); Lani
Guinier, ‘Beyond Legislatures: Social Movements, Social Change, and the Possibilities of Demosprudence’ (2009)
89(2) Boston University Law Review 539; Larry D Kramer, The People Themselves: Popular Constitutionalism and
Judicial Review (Oxford University Press, 2004); Douglas NeJaime, ‘Constitutional Change, Courts, and Social
Movements’ (2013) 111(6) Michigan Law Review 877; Robert C Post and Reva B Siegel, ‘Democratic
Constitutionalism’ in Jack M Balkin and Reva B Siegel (eds), The Constitution in 2020 (Oxford University Press,
2009) 25; Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999).
512 Federal Law Review 48(4)
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