Populism and Constitutional Amendment

The chapter explores a rather under-investigated relationship, namely between populism and constitutional amendment. First, we provide a conceptual framework of this relationship, by analysing the use, misuse and abuse of constitutional amendment by populists. To do this, we focus on a very specific species of the populist genre: that is—populism in power. In fact, constitutional amendment is a legal tool that is only available to populists in power. Therefore, we focus on the most commonly acknowledged experiences of populism in power to analyse whether this species of populism makes use of constitutional amendment, and, if so, what are the recurrent patterns of the investigated use of constitutional amendments by populists in power. This chapter argues that, if constitutional amendment is correctly understood, populists in power usually stay at large from constitutional amendments: they rather prefer to replace the Constitution or to disable it in concrete. In fact, populists tend to reject any distinction between “constitutional” and “ordinary” politics. Then, we explore possible constitutional remedies against the populist (ab)use of constitutional amendment: procedural mechanisms and doctrines of unconstitutional constitutional amendment. Within this picture, the chapter argues that constitutional machineries designed to slow down the process of constitutional amendments may be more effective than the doctrine of unconstitutional constitutional amendment. Subsequently, I will test the conceptual map designed in the first part of the chapter to the Italian case, focusing on the last 30 years of permanent mobilization of the constitutional amendment power and claiming that this moblilization has some resemblances with the populist approach to consti tutional amendments. However, the identification of some disturbing resemblances with the populists’ (ab)use of constitutional amendments only emerges if one adopts a purely methodological perspective. In fact,substantially, the most important attempts of overarching constitutional reforms in Italy did not share their most classic aims, such as the capture of counter-majoritarian institutions and the removal of the essential pluralist character of post–World War II constitutions. Finally, the chapter will argue that the procedure required by the Italian Constitution to be amended was able to disable populist impulses so far.