Abstract
This chapter explores the relations between populism and constitutional amendment. First, it provides a conceptual map of this unruly relationship, by analysing the use, misuse and abuse of constitutional amendment by populists. The chapter claims that populists tend to reject any distinction between “constitutional” and “day-to-day” politics. Therefore, if the notion of constitutional amendment is correctly understood, populists in power usually stay at large from constitutional amendments in a strict sense: they rather prefer constitutional replacement or constitutional sabotage. Subsequently, the chapter explores possible constitutional remedies against populist (ab)use of constitutional change. Finally, the designed conceptual map will be tested on constitutional developments in the last 30 years of the never-ending debate on constitutional change in Italy. The chapter argues that there are some disturbing methodological resemblances between the populist ab(use) of constitutional change and the Italian debate on constitutional reforms. Nevertheless, the constitutional amendment procedure provided for by the Italian Constitution successfully tamed most of the populist impulses.
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Notes
- 1.
The anti-pluralist character of populism emerges in a particularly evident manner in forms of right-wing populism, as pointed out by Galston 2018.
- 2.
Some notable exceptions are to be mentioned. Among recent defenders of populism, Laclau believed that populism fosters a democratization of democracy (Laclau 2007), while Rovira Kaltwasser problematizes the relationship between democracy and populism as ambivalent (Rovira Kaltwasser 2012). Within this picture, also Paul Blokker has repeatedly underlined how the relations between constitutionalism and populism are much more complex than their straight incompatibility (for further details, see his chapter in this volume).
- 3.
The constitutionality of the repeal of the four-fifth rule was far from uncontroversial: see Arato 2010: 40.
- 4.
To provide a specific example, we could mention the constitutional amendment to Article L of the (new) Hungarian Constitution. The amendment introduced the following text: “Article L) (1) Hungary shall protect the institution of marriage as the union of a man and a woman established by voluntary decision, and the family as the basis of the survival of the nation. Family ties shall be based on marriage or the relationship between parents and children”. On this constitutional amendment, see Venice Commission 2013.
- 5.
A growing abuse of the concept of constitutional identity is reported in the legal scholarship, for example, by Fabbrini and Sajó 2019.
- 6.
This point is harshly contested and I will not elaborate on further. A different, but finely motivated, perspective is offered in the chapter by Paul Blokker in this volume.
- 7.
- 8.
- 9.
The procedure regulated by Art. 138 is provided both for acts modifying the text of the Constitution and for acts introducing new constitutional laws, not to be incorporated into the text of the Constitution, but entitled with the same legal force of the Constitution. If one only considers acts amending the text of the Constitution, the count is limited to 14 constitutional amendments (in a strict sense). For an overview of passed constitutional amendments, see Luther 2017: 12.
- 10.
Constitutional Court of Italy, Judgment 35/2017 (for further details, see Faraguna 2017).
- 11.
However, exemptions are not rare, as reported by Piccirilli, who points out that the main procedural novelty in the governmental approach to constitutional reform, is their inclusion within the National Reform Programme (PNR), a key document to be transmitted yearly to European Institutions. These documents detail the specific policies that EU Member States will implement to boost jobs and growth and prevent/correct imbalances, and their concrete plans to comply with the EU’s country-specific recommendations and general fiscal rules. While the government led by Enrico Letta mentioned institutional reforms in the PNR, Renzi’s government not only included these reforms in the PNR, but put them in the very first place (for further details, see Piccirilli 2016: 157).
- 12.
The whole preparatory process was cumbersome and inspired to examples of “elite deliberation” rather than of civic participation, with an essential role played by ad hoc commissions of experts, before and after the formation of the Letta government. For further details of this “elitarian deliberative process”, see Blokker 2017.
- 13.
Disegno di legge costituzionale 15 October 2012 no. 3520 “Disposizioni di revisione della Costituzione e altre disposizioni costituzionali in materia di autonomia regionale”, available at http://www.senato.it/service/PDF/PDFServer/BGT/00680798.pdf (last visited 30 September 2019).
- 14.
Specifically, the constitutional amendment bill scheduled a maximum total time of 18 months for the whole process of constitutional amendment to be completed. To this aim, the constitutional bill aimed at introducing a shortened term of only one month between the two rounds of voting in each House.
- 15.
The substantial assessment in terms of constitutional law of the failed constitutional reform projects rejected by popular referendums in 2006 and in 2016 is highly contested. While in the first case, legal scholarship generally opposed the project, in the second case the legal debate was subject to a strong polarization (for further details, see Delledonne and Martinico 2017). Some authors (Blokker 2017) tend to identify common threads in the two projects, with an emphasis put on governability and efficiency of the decision-making process. However, the two reform projects consisted of significantly different institutional arrangements: the 2005–2006 constitutional reform process aimed at the introduction of a sort of “absolute premiership”, while the main focus of the 2016 constitutional reform project was put on the modification of the bicameral system.
- 16.
With the exception of the early 2000s constitutional reform of the state-region relations. However, even though the constitutional amendment touched many provisions of the Constitution, its scope is usually considered more specific and limited compared to the overarching constitutional reforms we are referring to.
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Faraguna, P. (2020). Populism and Constitutional Amendment. In: Delledonne, G., Martinico, G., Monti, M., Pacini, F. (eds) Italian Populism and Constitutional Law. Challenges to Democracy in the 21st Century. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-37401-3_5
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