Constitutional Democracy in the Age of Populisms : A Commentary to Mark Tushnet’s Populist Constitutional Law

This contribution aims at discussing constitutional democracy in the age of populisms, by explaining how populist movements oppose liberal-democratic constitutionalism and by presenting the thesis of a so-called 'populist constitutionalism', as proposed by Mark Tushnet. In the first section, a general and analytic exploration of populist phenomena will be drawn, by focusing on the so-called thesis of a 'populist' constitutionalism. In the second part, Tushnet's arguments for a populist constitutionalism will be presented, through the analysis of his two main contributions: "Taking the Constitution Away from the Courts", in which Tushnet develops his critique of legal constitutionalism and judicial review as an undemocratic power by unelected justices, and "Authoritarian Constitutionalism", a recent article in which a distinction between 'authoritarian' and 'populist' definitions of consti-tutionalism is drawn. In conclusion, such arguments will be discussed by proposing a critical response to Tushnet's positions and presenting some risks of a majoritarian and populist constitutional democracy.