constitutions and populist wave
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On the constitution of the populist wave

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We are living amid a so-called populist wave. In various world regions, from the U.S. to Britain to Germany to Italy to Poland to Brazil to Indonesia, right-wingers that claim to represent “the people” win astonishing numbers of votes or entire elections. They sell simple “solutions” for “the people’s” problems – “solutions” that come at the expense of, as the case may be, immigrants and other minorities, social peace, international relations, the environment, the rule of law, moral standards, the truth, and sanity and reason.

USA President Donald Trump.
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While “traditional” politicians struggle against the populist wave, journalists and scholars meditate on its causes and how long it will continue.

The main cause seems to be that globalization has disadvantaged certain people or classes around the world, while the elites of their respective countries have failed to prevent or repair those (actual or imagined) disadvantages. The next question then is how populism can, with its preconditions fulfilled, flourish in certain countries in one way or another. Here, factors range from socioeconomic inequality to misinforming media (including social media) to charismatic demagogues.

In this article, I would like to discuss another factor that has facilitated populist success but does not seem to receive the attention that I think it deserves. I mean the legal constitution of certain states.

A state’s constitution defines the basic principles and rules according to which the state is supposed to work. In practice, these principles and rules may prove to be more or less beneficial to the state’s people. If a constitution facilitates rather than impedes populism, it proves to be less beneficial, because populist “solutions” generally exacerbate the problems they claim to solve.

In Brazil, Britain and the U.S., the constitutions each exhibit weaknesses in that regard, which we discuss here as examples.

Brazil has since 2019 been governed by a more or less fascist president, Jair Bolsonaro, because voters were fed up with the chronic corruption of his left-wing predecessors. Corruption, though, pervades the country’s political right as well – in 2016, Brazil’s Congress deposed left-wing President Dilma Rousseff, but out of the parliament’s 594 members, 352 (that is, 59 percent!) were at the time themselves being investigated for corruption.

Corruption of course has a long history all over Latin America. In Brazil, however, it receives additional stimuli from the constitution.

The Brazilian Constitution allows the National Congress to consist of two dozen unstable parties/factions while obliging the country’s president, head of the executive, to base his or her governance on alliances with them. And how can the president convince deputies to support him or her? You know the answer.

From the government’s top, corruption then trickles down to the rest of the executive as well as the parliament, the judiciary, and private businesses.

Street party in Brazil.
Public domain photo

A way to “fix Brazil” may be to alter its (formally) presidential system so that not only the president but also legislators can be accountable to the electorate for governmental actions.

Britain has the opposite of a presidential system: here, the two Houses of Parliament hold sovereignty and tightly control the executive. So far, they have thus prevented Prime Minister Boris Johnson from implementing a no-deal Brexit.

Johnson is a populist who had no parliamentary majority until the election on December 12th. However, the British Constitution – based not on a single text but on various laws and traditions – tells the British monarch to appoint as prime minister the person who leads the House of Commons’ largest party. Since Johnson’s Conservative Party is the largest and he became its leader, he also became prime minister in July 2019.

This means that until December 12th, he led a country of close to 70 million inhabitants although he had been elected by just 92,000 of them – those among his party’s members who elected him party leader. In other words, he had been elected by 0.13 percent of Britain’s population.

The fact that British voters opted for Brexit in 2016 also has constitutional roots. Why did voters, especially in provincial England, see Brexit as a solution for their problems?

UK citizens - what does Brexit mean for those living abroad? Time to get informed and take action. (Photo: public domain)
Public domain photo

They felt neglected by their own politicians because of Britain’s centralization as well as majoritarian voting system: political and financial power is heavily concentrated in London, so that other parts of the country are left behind; and in House of Commons elections, in each constituency, the candidate with most votes wins the seat, whereas all other votes end up not counting.

U.S. President Donald Trump, in office since 2017, was elected by a larger part of his people than Johnson. Still, he won the presidency not because he won the highest absolute number of votes, but because he won the vote of the “Electoral College.” Here, each of the country’s 50 states has a number of “electors” based on the size of its population who then choose the candidate with most votes in their state to give all the points to.

That means, if you win the majority of votes in a state, you win the entire state, so that several candidates have become president without winning the “popular” vote in the entire country – as it should actually be in a “democracy.”

Direct democracy was born in Athens in about the 5th century BC,
Photo credit: muninn.net via VisualHunt.com / CC BY-SA

Like in Britain, the majoritarian voting system in the U.S. factually annuls large numbers of the ballots that have been cast. Moreover, it gives only the established Republican and Democratic parties a real chance to win elections, because new alternatives could never defeat them. Yet such third forces could help in times where the two “big ones” are in such insurmountable opposition to each other that they deadlock Congress.

Besides other defects of America’s political system, some of which sound downright criminal, there’s something wrong with its Supreme Court too.

Instead of being neutral defenders of the U.S. Constitution, the Supreme Court justices are associated with either the Republican or the Democratic Party, because they are installed by a U.S. President and Senate majority of either one or the other. To make it worse, the justices serve, if they want to, for life, so that the president who has appointed them may still govern through them decades after the end of his elected term.

Justices may themselves deny that there are “Obama judges” or “Trump judges,” “Bush judges” or “Clinton judges” among them – but if this weren’t the case, why, for example, is the current Republican administration so delighted to be “filling” the Supreme and other federal courts with judges of their choosing?

Constitutions are created by humans. Therefore, they contain human errors as well as provisions that may have made sense at the time of their creation, but don’t make sense today.

If America had possessed nuclear weapons in the 1780s, its founding fathers may not have invested the president of their new state with the authority to launch them at his sole discretion. Nor would they have permitted lifetime judges if the average life expectancy had been higher than 38 years back in their day. And in cases like Britain, its “constitution” may have worked to “run an empire”, but it doesn’t work for a “modern, medium-sized country.”

Hence, for a country in crisis – like in times of populist waves – its constitution shouldn’t be the last place to look at.

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