Article

Philosophy and Social Criticism

2019, Vol. 45(9-10) 1116–1131
Democracy ª The Author(s) 2019
Article reuse guidelines:

and constitutional reform: sagepub.com/journals-permissions

DOI: 10.1177/0191453719872294
journals.sagepub.com/home/psc
Deliberative versus
populist constitutionalism

Simone Chambers
University of California Irvine, USA

Abstract
Constitutional reform has been an important means to push populist authoritarian agendas in
Hungary, Poland, Turkey and Venezuela. The embrace of constitutional means and rhetoric in
pursuit of these agendas has led to the growing recognition of ‘populist constitutionalism’ as a
contemporary political phenomenon. In all four examples mentioned above, democracy, popular
sovereignty and direct plebiscitary appeal to the people is the rhetorical and justificatory framework
for constitutional reform. This, I worry, gives democracy a bad name and reinforces the widespread
suspicion that citizens should not be directly involved in constitutional reform as popular partici-
pation can lead to dangerous majoritarianism and is easily manipulated by elite actors seeking to
weaken constitutional checks and balances. But the problem, I argue, is not inherent in citizen’s
participation in constitutional reform. In contrast to populist constitutionalism, I develop an idea of
deliberative constitutionalism in which citizens can participate in constitution-making and reform
without hijacking constitutionalism for majoritarian, nationalist or anti-pluralist ends. Deliberative
constitutionalism as I understand it has four features: a Habermasian co-originality thesis that
articulates the interdependence of democracy and liberalism mediated by a conception of discourse;
a proceduralized idea of popular sovereignty that reduces the tension between appeal to the people
and respect for pluralism; the centrality of the public sphere over the voting booth as the cradle of
democracy; institutional innovations intended to include citizens in constitutional reform (including
through referendums) but avoid majoritarian and populist pathologies.

Keywords
constitutionalism, deliberative democracy, democracy, popular sovereignty, populism, public
sphere, referendums, the people

Corresponding author:
Simone Chambers, Department of Political Science, University of California Irvine, 3151 Social Science Plaza, Irvine,
CA 92697-5100, USA.
Email: sechambe@uci.edu
Chambers 1117

Introduction
Authoritarian leaning populism has sometimes been thought to be in opposition to
constitutions and constitutionalism (Hailbronner and Landau 2017). This opposition
is seen as involving either political attempts to bypass, discredit or suspend constitu-
tions and constitutional limits or as a normative claim put forward especially by liberal
constitutionalists that populism and authoritarianism are essentially in opposition to
the values and principles of constitutionalism (Levitsky and Ziblatt 2018; Mounk
2018). While these two liberal evaluations of populist authoritarianism are not wrong,
some contemporary political movements are complicating the picture we have of the
relationship between populism and constitutionalism. Some contemporary populist
movements with authoritarian leanings have progressed and gained ground through
embracing and claiming ownership over national constitutions. So, for example, con-
stitutional reform has been an important means to push populist authoritarian agendas
in Hungary, Poland, Turkey and Venezuela. The embrace of constitutional means and
rhetoric in pursuit of these agendas has led to the growing recognition of ‘populist
constitutionalism’ as a contemporary political phenomenon (Müller 2017; Dixon
2017).
What interests and alarms me about these movements is the cautionary tale they
might present to more robust democracies about the role and place of democracy and
citizen participation in constitutional reform. In all four examples mentioned above,
democracy, popular sovereignty and appeal to the people is the rhetorical and justifi-
catory framework for constitutional reform. In addition, populist constitutionalism
often relies on majoritarian and democratic procedures, such as referendums, electoral
majorities and popularly elected constituent assemblies to claim legitimacy for the
reforms. This, I worry, gives democracy a bad name and reinforces the widespread
suspicion that citizens should not be directly involved in constitutional reform as
popular participation can lead to dangerous majoritarianism (the very thing that con-
stitutions are supposed to hem in) and is easily manipulated by elite actors seeking to
weaken constitutional checks and balances. But the problem, I argue, is not inherent in
citizen’s participation in constitutional reform. Here is where the idea of deliberative
constitutionalism comes in to help articulate the ways citizens can participate in
constitution-making and reform without hijacking constitutionalism for majoritarian,
nationalist or anti-pluralist ends.
Ultimately, I want to contrast some structural and procedural elements that dis-
tinguish two types of citizen participation in constitutional reform. Here, for exam-
ple, I compare the use of a constitutional referendum in Scotland to the use of
constitutional referendums in Turkey. But this contrast rests on a deeper claim about
democracy and popular sovereignty. Although both cases employed a majoritarian
procedure, the Scottish case is not a case of problematic majoritarianism while the
Turkish case is. The reason, I argue, is that in the Scottish case, the referendum was
designed and functioned in such a way as to further inclusive and pluralist debate
and discourse on constitutional questions; in Turkey, the referendum was employed
to stop debate and ratify an elite agenda that would further shut down debate. This
difference goes to the core of democratic will formation. In the deliberative model I
1118 Philosophy and Social Criticism 45(9-10)

sketch below, the public sphere is central and the voting booth is secondary; in the
populist model, the voting booth is central and the public sphere only holds dangers
and impediments to the will of the people. The deliberative view of the public
sphere rests in turn on a procedural and disaggregated view of popular sovereignty.
Here I argue that attacks on and suppression of the public sphere, free press and
dissent during constitutional reform processes undermine any claim to speak for ‘the
people’. Finally, this view of procedural popular sovereignty rests in turn on a
Habermasian co-originality thesis.
In what follows I begin with a discussion of what I mean by populist constitutional-
ism. The core feature is the tension between, on the one hand, the rhetorical framing of
constitutional reform in terms of popular sovereignty as well as the use of democratic
majoritarian procedures of ratification and, on the other hand, the institutional goals of
consolidating executive and/or party power and shutting down democratic debate and
dissent. Rather than criticizing this form of constitutionalism from the point of view of its
illiberal features, I turn to an alternative view of democratic constitutionalism found in
the deliberative democracy paradigm. Deliberative constitutionalism as I understand it
has four features: a Habermasian co-originality thesis that articulates the interdepen-
dence of democracy and liberalism mediated by a conception of discourse; a procedur-
alized idea of popular sovereignty that reduces the tension between appeal to the people
and respect for pluralism; the centrality of the public sphere over the voting booth as the
cradle of democracy; institutional innovations intended to include citizens in constitu-
tional reform (including through referendums) but avoid majoritarian and populist
pathologies.

What is populist constitutionalism?

There has been an explosion of interest in and scholarship about populism (Kaltwasser
et al. 2017). Some think, the term is over used and becoming less and less helpful
(Cohen 2018; Frank 2018). All definitions become contested. So I begin with a dis-
claimer. I am not offering a definition of populism. Instead, populist constitutionalism
refers to a particular type of institutional reform strategy undertaken by parties in
power. It does not refer to the regime as a whole and has limited relevance for parties
in opposition. It might be possible to see aspects of this syndrome in the rhetoric of
parties seeking power but populist constitutionalism is a strategy undertaken to con-
solidate power. Why do I insist on the term populist? The four examples I use as
illustrations are all far down the road of authoritarianism and their hostility towards
an open, inclusive and dynamic public sphere, the dimension that interests me most, is
a classic authoritarian stance. The rhetoric and institutional means, however, are popu-
list in the sense that they contain frequent appeals to the will of the people and popular
sovereignty.
Hiding authoritarianism or totalitarianism behind a rhetoric of democracy is nothing
new. Bernard Crick begins his Democracy: A Very Short Introduction with a catalogue
of all the truly horrible regimes that have tried to claim the mantle of ‘democratic
republic’ (Crick 2002, 8). But there is a difference between ‘The Democratic People’s
Republic of Korea’ and Recep Tayyip Erdoğan claiming to be more democratic than
Chambers 1119

most Western states (see quote below). Erdoğan, along with the three other regimes,
appears to want the legitimacy of seeming to be working within some version of liberal
democratic constitutionalism. Hungary and Poland are still in the EU even though they
are flirting with authoritarianism. Perhaps Venezuela is beyond the pale. But even
Venezuela insists on the trappings of a constitutional order with a Constitutional Court.
Part of the story here is that many populists present constitutional reform as a corrective
or rebalancing of liberal democracy in favour of the democratic side because Western
constitutionalism, they claim, has been leaning too far towards the liberal end of things.
So Viktor Orbán speaks of replacing liberal democracy with Christian democracy (but
staying within the EU) and Chavez and Maduro talk about participatory democracy
replacing liberal democracy (De La Torre 2017, 201). In both cases (as well as in Turkey
and Poland), this rebalancing is often spearheaded by a recalibration of the power and
role of the highest court (Arato 2017). Courts are not abolished but are packed or
weakened under the claim that their counter majoritarian function has gone too far and
represents a corruption and usurpation of popular sovereignty. But still, it is important
for the leaders of these four regimes to claim (no matter how farfetched) that they are
constitutional orders with constitutional courts.
Populist constitutionalism works within the constitutional system, ‘perfecting’ the
institutions so that the constitutional order is a more perfect instrument of the will of the
people. Thus the justificatory structure here is deeply populist in the sense that it resides
squarely in the appeal to the people as carriers of constituent authority within the
Western constitutional tradition. And because I am interested in this dimension and the
way this dimension challenges our ideas of democracy and frankly gives democracy a
bad name, the term authoritarian by itself does not capture what I am after.
But again let me insist that this is not a general definition of populism but a syndrome
if you will. The contrast here is with other ways of pursuing constitutional politics, for
example, liberal constitutionalism, popular constitutionalism or deliberative constitu-
tionalism. Although I am not offering or defending a general definition of populism, I
do borrow from scholars who propose such definitions. Jan-Werner Müller (2016),
Andrew Arato (2017) and the work of Abts and Rummens (2007) have been helpful
in this regard. For all these (and other) scholars, a central point of populism is a very
particular way of envisioning the people. Common here is to invoke Claude Lefort’s
famous dictum that a ‘revolutionary and unprecedented feature of democracy’ is that
‘The locus of power becomes an empty space’ (1988, 17). Populists seek to fill up that
space. Populists seek ‘the closure of that place of power in favor of a fictitious image of
the people as a homogeneous and sovereign body’ (Abts and Rummens 2007, 415). ‘The
claim to exclusive moral representation of real or authentic people is at the core of
populism’ (Müller 2017, 592). Rather than try to defend this idea as the core of populism,
I look to see this idea at work in particular strategies and justification of constitutional
reform. The claim to speak exclusively on behalf of the unified authoritative people is
the source of an essential anti-pluralism to these strategies and to the vilification of
opposition voices and public criticism as enemies of the people.
One of the identifying features of populist constitutionalism is the tension between the
means and justification of constitutional reform, on the one hand, and the institutional
ends sought through constitutional reform, on the other hand. The means and
1120 Philosophy and Social Criticism 45(9-10)

justification are all about the people, participation, democracy and citizen power. The
ends are all about the consolidation and concentration of power and ultimately the
limitation and suppression of the people, participation, democracy and citizen power.
Populists walk a fine line between the need for a mobilized majority to give them
democratic credentials and the fear of an active engaged citizenry that can give them
push back and opposition.

Illustrations of populist constitutionalism

In what follows I briefly introduce some examples of the rhetoric and institutional
strategies employed by populist constitutionalists. The Justice and Development Party
(AKP) in Turkey has used popular referendums three times to push through constitu-
tional reforms. In 2007, constitutional and political obstacles got in the way of the AKP
candidate being elected president which required a 2/3 vote in Parliament and the AKP
had only a simple majority at that time. Using that majority, they proposed a constitu-
tional amendment that would make the president directly elected and also reduce the
quorum requirement for Parliamentary votes thus eliminating the power of boycott for
minority parties. These and other constitutional amendments were presented to the
citizens in a referendum on 21 October 21 2007 and passed with 69.95% in favour.
Erdoğan used this appeal to the people to stress the democratic credentials underpinning
this reform:

I would like to highlight the importance of this referendum in terms of its contribution to our
experience of direct democracy. The fact that participation did not fall below 50% in any of
our provinces and over all participation rate of 73% shows the participatory quality of
democracy. Advanced democracies can barely reach 40%. (Erdoğan 2007)

The most recent referendum in 2017 was an explicit appeal to populist constitution-
alism: ‘Now for the first time the people will make its own constitution’ – AKP
Vice Chairman Hayati Yazıcı (Yazici 2017) and Ergoğan made it quite clear that the
people did not include dissent, opposition or plurality: ‘The republic belongs to the
public, the people. These people (the opposition) don’t have respect for the people
or popular sovereignty. Remember the slogan: one people, one flag, one homeland,
one state’ (Ergoğan 2017). The thrust of the 18 amendments voted on in October
2017 was to move Turkey to a presidential system and limit Parliamentary and
judiciary oversight on the President. In defending the latest constitutional reform,
a government spokesman suggested that checks on executive power are anti-
democratic:

any attempt to form an institutional control over the people’s will is against democracy . . .
the president, is elected directly by the people . . . So, it would not be acceptable for the
Parliament to file an interpellation motion about the actions and decisions of someone who
takes his authority directly from the people. (Quoted in Bora 2017, 5, 6)
Chambers 1121

An interpolation motion is the formal request made by Parliament to the government

asking for explanation and justification of an action or policy. It is used as a device of
publicity and accountability but is now seen as an obstacle to democratic will.
Both the introduction of direct election as well as the expansion of presidential
powers vis-à-vis Parliament was framed as enhancing citizen participation, power and
sovereignty. Citizens changed the constitution though a referendum, citizens directly
elect the president, the president has fewer obstacles (check and balances) in the course
of enacting the will of the people. But as I will argue in the final section, the referendum
was designed not for maximum (let alone quality) citizen’s participation but for produc-
ing an electoral mandate for an elite agenda. The reforms themselves also fail to enhance
democratic participation as they required the suppression of the public sphere debate to
be passed and they will result in more power to further control and suppress debate.1
Before I sketch the alternative picture of citizen’s participation, let me briefly describe
similar developments in Hungary, Poland and Venezuela.
A similar pattern can be seen in Hungary where rather than referendums, large
electoral majorities have been used to overhaul the constitution. The push to reform the
constitution began shortly after the 2010 election of Viktor Orbán and his conservative
Fidesz party. In 2011, the Fundamental Law was passed in Parliament with support
exclusively from the governing coalition. The government had undertaken a mail-in
citizen consultation prior to this vote but many commentators considered this consulta-
tion to have been somewhat of a sham and see very little meaningful citizen participation
in the constitutional process despite claims that the reforms strengthen democracy in
Hungary (Uitz 2015, 294). The changes and amendments themselves have also not been
directed at enhancing democratic participation. Hungary has relied on electoral majo-
rities to pursue a constitutional strategy described as ‘political self-perpetuation through
constitutionalization’ (Uitz 2015, 292). This has involved weakening the constitutional
court to the advantage of the executive (Arato 2017). Parallel constitutional reform in the
name of the people has been a concerted effort to stifle dissent, debate and criticism in
the public sphere. This effort has taken the form of a campaign to concentrate media
ownership in the hands of members or allies of the ruling party, as well as discrediting
dissident voices (Druckman 2018).2
Poland appears to be heading down a similar path of using large Parliamentary
majorities to back a move to restrict and take firmer control of the Supreme Court. Marc
Santora notes ‘Officials with the governing party say they are simply overhauling a
corrupt system that obstructs popular will’ (Santora 2018). Like in Hungary, there is a
parallel move to reduce press freedom and opportunities to criticize primarily through
gaining control over media outlets. While Hungary and Poland have not engaged in the
kind of direct assault on the press and opposition that one sees in Turkey and Venezuela,
the strategy to use the market, on the one hand, and the Internet to sow confusion and
doubt about information and fact, on the other hand, has been very effective in disabling
the public sphere.
The pattern is again similar in Venezuela. ‘The core of the Chavez method is to use
plebiscitarian mass support in order to transform established institutions, dismantle
checks and balances, concentrate power in the president, and promote immediate reelec-
tion’ (Weyland 2013, 22). A favoured mechanism for both Chávez and his successor
1122 Philosophy and Social Criticism 45(9-10)

Maduro is the Constituent Assembly. The most recent such assembly was elected 30 July
2017 with a mandate to reform and rewrite the constitution in the name of ‘the people’.
All the form and rhetoric of a popular participatory processes were adhered to, however
only candidates loyal to the ruling party stood for election. The Constituent Assembly
speaks in one voice not as the result of a process of inclusive consensus building but as
the result of a process of exclusion. Opposition, disagreement, criticism and difference
have no place in populist constitution-making and reform. Freedom House continues to
give Venezuela failing grades for press freedom citing violence, obstruction and deten-
tion of journalist covering protest against the government as well politically motivated
prosecution.3
A very common way to identify the problem with populist constitutionalism is to
target the use of majoritarian electoral success as mandates for constitutional reform, the
attack on free speech and press, and the content of the reforms themselves as weakening
checks and balances and especially as weakening the judiciary in relation to the exec-
utive (Levitsky and Ziblatt, 2018). Often this criticism highlights the illiberal nature of
these reforms especially the weakening protection for individual and minority rights and
the erosion of checks and balances. On this view, it is important to think about amending
formula and constitutional reform in general from the point of view of procedures that
safeguard it against majoritarian capture. Majoritarianism is one of the reasons to have
courts and constitutions in the first place. So on this view, appeal to democratic will is
suspect from the beginning. Equally, suspect are the specific reforms undertaken as they
tend to reduce checks and balances and the power of the court.
But this criticism of populist constitutionalism in some ways plays into the hands of
populists. For this criticism is premised on the very same dichotomy and tension that
animates populist constitutionalism. In other words, this view also sees democracy and
liberal rights in tension. And so liberals can square off against populists with competing
understandings of modern constitutionalism with liberals focusing on rights and popu-
lists focusing on democratic will formation. So much debate within the American con-
stitutional paradigm focuses on what seems to be a zero sum game between courts and
democracy. Defenders of popular constitutionalism often criticize the overpowering role
of courts, and liberal constitutionalists worry about majorities either acting irresponsibly
or being easily manipulated by special interests, powerful elite actors and money (Dixon
and Stone 2016; Tierney 2012). To the extent that populist constitutionalism has an
ideology, this sort of critical debate reinforces their claim that courts and the rights they
enforce are in deep tension with democracy and they are simply undertaking a corrective
rebalancing. To the extent that we concede that they may indeed be following a dem-
ocratic path just not a liberal path, we buy into their idea of democracy – an idea that is
not just impoverished but deeply undemocratic in its claim that majorities and not the
equal status of all citizens is the heart of democracy. Now I would like to sketch an
alternative view of democracy.

Deliberative constitutionalism
Deliberative constitutionalism is a term, like populist constitutionalism, that has been
gaining usage (Elstub and Pomatto 2018; Kong and Levy 2018). The core idea is to
Chambers 1123

understand the democracy part of liberal democratic constitutionalism in deliberative

terms. But this could mean many things as deliberative democracy is now a broad
paradigm encompassing lots of variation and disagreement (Levy et al. 2018). In this
article, I sketch a Habermasian inflected view of deliberative constitutionalism and focus
on the way deliberative democracy offers a promising agenda for the justification of
citizen participation in constitution-making and reform.
Citizen participation in constitutional-making and reform strengthens the legitimacy
of the constitution. This claim is both empirical and normative. On the empirical side,
there is evidence that citizen participation, especially deliberative participation at the
drafting stage of constitution-making, produces citizen ‘buy in’ and leads to more robust
democratic institutions (Eisenstadt, LeVan, and Maboudi 2015). On the normative side,
citizen participation can contribute to the claim that the constitution is the expression of
‘we the people’ and underpinned by the justificatory force of popular sovereignty (Ack-
erman 1991; Contiades and Fotiadou 2018).
My conception of deliberative constitutionalism has four parts. Taken together, these
offer a strong counter argument to the democratic (and not just liberal) credentials of
populist constitutionalism. First is a co-originality thesis that offers an argument for why
one cannot separate democracy and liberalism. Second is a ‘post-sovereignty’ thesis in
which ‘the people’ do not have a single identifiable will; rather popular sovereignty is
disaggregated, exercised over time and proceduralized in mechanisms of egalitarian
inclusion. Third, this view of democracy places imperative emphasis on the public
sphere as the locus of legitimacy rather than voting. Voting of course does not disappear
and free and fair elections are a necessary part of any democratic order. But elections
without the circulation of reasons, information and justification (as well as criticism,
dissent, and opposition) have significantly diminished legitimacy. Here we see the true
problem with populist constitutionalism: it claims to be democracy promoting at the
same time as shutting down the public sphere. Finally, deliberative democracy offers
insight into how to think about citizen’s participation in constitutional politics including
referendums that mitigate against populist dynamics overwhelming the process.

Habermasian interlude: Co-originality and Subjectless will

formation
The co-originality thesis postulates that liberal rights and democratic self-determination
are fundamentally interdependent. Liberal democracy developed over time in a boot-
strapping historical process that saw, on the one hand, the potential of late 18th-century
constitutionalism slowly unfold (if also backslide) through expanding democratic inclu-
sion, and on the other hand, the justification of constitutional rights relying more and
more on claims that they are or would be the outcome of some form of popular willing or
choice (Habermas 2001).
In Habermas’s version of co-originality, the interdependence between rights and
democracy is mediated by a non-political non-moral theory of validity and justification.
Here Habermas introduces what he calls the discourse principle (D): ‘Just those action
norms are valid to which all possible affected persons could agree as participants in
rational discourse’ (Habermas 1996, 107). The full defence of this principle would take
1124 Philosophy and Social Criticism 45(9-10)

us far afield. The short hand version is that Habermas argues that in our modern world
substantive sources of justification such as God or natural law can no longer perform the
function of justifying collective norms. The combination of disagreement about these
substantive sources and a respect for the free and equal status of fellow citizens under-
mines the possibility of having a clear buck-stopper that can serve as a foundational
justification for collective norms. Under modern conditions of pluralism, we fall back on
the conditions of justification as such. Rational discourse is the technical term for a form
of communication where only justification goes on. Here we conceive of the conditions
of this conversation in such a way as to ensure that only ‘the unforced force of the better
augment’ has sway (Habermas 1996, 306). For this to happen, each participant should
have ‘an equal opportunity to be heard, to introduce topics, to make contributions, to
suggest and criticize proposals’ (Habermas 1996, 305). A rational discourse is not an
empirically observable conversation but rather a philosophical device (a reconstruction)
to give us a sense of the general conditions of justification and validity. So far this is very
familiar if abstract ground. How does it help us understand making and amending real
world liberal democratic constitutions?
If we think of the (D) principle in terms of the validity of law, we are lead to the
conclusion that citizens need to be in a basic relation of equality with one another to be
able to collectively validate law. The validation of law is analogous to the justification of
a norm. The discourse theory explains why collective willing (if undertaken under
conditions of equality and freedom) could generate legitimate outcomes rather than
simply random and arbitrary outcomes. This basic relation of equality is then understood
in terms of rights.
With this general view of co-originality in place, we can return to populist
constitution-making. The co-originality view does not merely say that elections without
rights (say free speech and freedom of association guaranteed through a strong judiciary)
are a sham. It shifts the locus of democratic legitimacy away from elections and majority
rule. When we look at populist or competitive authoritarian regimes it is important to
remember that while majority rule can be a perfectly good democratic decision rule it is
parasitic on a deeper and more fundamental democratic principle of equality or equal
political status. Thus definitions of democracy like the one offered by Mudde and
Kaltwasser in the analysis of populism are not quite as neutral as they suggest: ‘Democ-
racy (sans adjectives) refers to the combination of popular sovereignty and majority rule;
nothing more nothing less’ (Mudde and Kaltwasser 2017, 10).
If majority rule is no longer the defining feature of democracy what is? Habermas
introduces his own democratic principle: ‘only those statutes can claim legitimacy that
can meet with the assent of all citizens in a discursive process of legislation that in turn
has been legally constituted’ (Habermas 1996, 110). At first sight, this principle might
strike one as wildly implausible. It seems to imply (1) that legislation is illegitimate if it
does not garner unanimous agreement and (2) that unanimity must be the result of a
deliberative encounter among all those affected. What is key here is to understand the
phrase ‘discursive process of legislation’ in procedural, disaggregated and reconstructive
terms. What this means is that he is not talking about a concrete deliberative encounter
among citizens but rather suggesting that we understanding processes of legislation in
discursive terms or as if they were structuring a type of conversation. If we look at
Chambers 1125

democracy this way, then our constitutions, rights and freedoms, our equal opportunities
to participate and speak, the fair regulation of the public sphere, free and fair elections
and the accountability of our representatives are all to be understood in discourse-
theoretic terms, that is, as a legally constituted discursive process of legislation.
Although legitimate legislation is what people would assent to in a discourse, we have
no independent access to the content of discursively formed opinion and will. Thus
legitimacy is purely procedural in the sense that it is imbued in the procedural possibility
to raise arguments, challenge reasons and put forward claims (Habermas 1996, 186,
457).
There are two important consequences to this view of democratic legitimacy. The first
is that questions of democratic legitimacy are always questions of more or less assessed
from the point of view of procedure not outcome. Thus we do not ask, did or could
everyone agree with this piece of legislation; we ask how confident are we that the
existing discursive structures of public communication facilitates an egalitarian circula-
tion of information, reasons, justification, criticisms, commentary and so on. The second
important consequence is the procedural understanding of democratic legitimacy leads
Habermas away from Rousseau and the general will. ‘Popular sovereignty is no longer
embodied in a visible identifiable gathering of autonomous citizens. It pulls back into
the, as it were, ‘Subjectless’ forms of communication circulating through forums and
legislative bodies’ (Habermas 1996, 135–36). Habermas also calls this idea of popular
sovereignty ‘anonymous’ (136), lacking ‘overly concrete notions of a “people” as an
entity’ (185), and as ‘communicatively fluid sovereignty’ (186).

Deliberating constitutions democratically

The view of democracy at the heart of deliberative constitutionalism invests popular
sovereignty in processes of collective egalitarian discourse (understood procedurally)
rather than in outcomes of majoritarian procedures. Habermas is part of (perhaps a
founding member of) a growing group of democratic theorists who adopt a procedur-
alized view of popular sovereignty and the people (Arato 2016; Espejo 2017; Rummens
2017; Urbinati 2014). This challenges views of democracy that would concede that
populists like Orbán and Erdoğan while illiberal are still democratic (Mudde and Kalt-
wasser 2017). This question returns us to Lefort’s idea of the people being an empty
space. Pluralism suggests that dissent, opposition and difference are permanent features
of all democracies and so any claim to speak for the people in a decisive unitary way (to
fill up the space) will misrepresent and exclude something or someone. A proceduralized
understanding of the people leads to three conclusions. Any particular decision, vote,
election, referendum (including constitutional referendums) is never synonymous with
the people and is always fallible, corrigible and partial. Two, the people is always a work
in progress over time. Three, the assessment of whether the democratic system does a fair
job in facilitating, channelling and empowering popular opinion and will formation
cannot be reduced to a single vote outcome or majoritarian decision but must be assessed
on the procedural elements that shape and determine the discourse (broadly understood).
Votes are only as good as the procedural/discursive context in which they take place.
This view translates (ideally) into constitution-making and reform that engages, consults,
1126 Philosophy and Social Criticism 45(9-10)

involves, informs and responds to citizens without relinquishing the process to major-
itarian dynamics. Thus one of the first and most important structural features of delib-
erative constitution-making is an open and inclusive public sphere with well-functioning
press and political communication. Few contemporary public spheres get high grades on
any of these dimensions. All have various pathologies of exclusion, epistemic opacity
and market distortions (to name just a few of the problems we face). But there is an added
level of pathology in some populist-authoritarian regimes. Populists target the public
sphere and the free circulation of information directly. It’s not just that they do little to
support public debate (a chronic problem in ordinary democracies), it is that they
actively push back against public debate and often identify the forces of the public
sphere as the enemy of democracy. Here is the sharpest contrast. For deliberative dem-
ocrats, opposition, criticism, dissent, counter arguments, plural points of view and chal-
lenge are the elements and building blocks of a proceduralized popular sovereignty, for
populists these are obstacles, maliciously placed in the path of the will of the people.
But how realistic is this idea of a disaggregated fluid popular sovereignty? In politics
and constitution-making, we cannot have endless debate, argument, dissent and airing of
grievances. Decisions have to be made. And more often than not these decisions will
have to be taken through votes. How to integrate this view of democracy and the ‘people’
with decisiveness and reform? Here I would like to appeal to two examples, the 2014
referendum in Scotland on independence and the three recent constitutional referendums
in Ireland, to suggest that there are concrete ways of visualizing fluid popular sover-
eignty.4 I contrast these institutional initiatives with populist appeals to democratic
institutions. This comparison is intended only as an illustration of alternative scenarios.
I do not offer an explanation for the differences and fully acknowledge that there are
many factors (historical, cultural, sociological, institutional and political) that account
for the political paths chosen by Scotland and Ireland on the one hand and Turkey and
Venezuela on the other. Thus I am not suggesting if only Turkey had been more like
Scotland democracy would be safe. I am suggesting that Scotland is a good counter
example for us to see deliberative constitution-making at work.
In January of 2012, the Scottish government announced its intention to hold a refer-
endum on Scottish independence. That vote took place two and half years later in
September of 2014 at which time the proposition was defeated. A number of scholars
have argued that the Scottish referendum was able to avoid populist pathologies that
some think are intrinsic to referendums (Parkinson 2018; Tierney 2015). These pathol-
ogies are first, that referendums are especially susceptible to elite control and manipula-
tion; two ‘they merely aggregate pre-formed opinion rather than foster meaningful
deliberation’; and three, referendums risk enshrining majority interests at the expense
of minority or individual interests (Tierney 2015, 2; see also Tierney 2012).
Although the Scottish referendum was initiated from above, a number of factors
mitigated against the referendum process being dominated by an elite agenda. The fact
that the Scottish government had to coordinate with the UK government to produce a
lawfully recognized process meant that the public was in on the debate from the very
beginning. Such issues as ‘who gets to initiate a referendum?’, ‘who gets to set the
question?’ and ‘what guidelines should govern the framing of the question?’ were aired
in public and discussed in the press. This introduced a level of public self-reflection
Chambers 1127

about the process itself that made it possible to think self-consciously about what it
means to reform a constitution. The Scottish people are constituted by this national
conversation over time. Public scrutiny and discursive involvement was present at all
stages of the referendum from initiation, to question setting, to the actual deliberation on
the question. By all accounts, public deliberation was broadly inclusive and of good
quality (Tierney 2015, 14). Two main factors contributed to the deliberative quality. The
first was the length of the referendum campaign. The referendum was proposed 33
months before it was held and both sides had almost 2 years from the time the question
was set to persuade their sides.5 ‘The length of the process facilitated deliberation by
giving people time to learn about, reflect upon and deliberate with others over the issues
at stake’ (Tierney 2015, 15). But even more important than time was the development of
a fruitful two-way conversation and cooperation between civil society and government
representatives. In a post referendum survey of activist, journalists and academics, John
Parkinson notes that ‘all agreed that one of the crucial factors was a decision by Scottish
government not to engage in designing the process, but to step back and let activists in
non-governmental organizations (NGOs) with pre-existing networks to take over’ (2018,
254). The result was a lot of civil society buy in that facilitated discussion at multiple
levels including informal ones. A purely government initiated information campaign
would not have been able to do this. Parkinson continues, ‘a representative from the
Scottish cabinet office put it this way: the job of government was to be “host not heroes”,
to create a space for the public sphere rather than to organize it, institutionalize it and
dominate it’ (255). Contrast this to the referendums in Turkey where citizens come into
the picture at the very end of the process, the debate was dominated by the government,
and the public sphere was hampered and suppressed. In Scotland, the referendum was
supposed to function as a catalyst for a national conversations and so was designed with
this in mind.6 In Turkey, the 2017 referendum was intended to furnish a democratic
mandate for Erdoğan’s agenda. But without an inclusive participatory consultation pro-
cess, the democratic credentials of that mandate are suspect. In Scotland, popular sover-
eignty cannot be reduced to the vote taken on 18 September 2014. Sovereignty, as
Habermas says ‘makes itself felt in the power of public discourses’ (1996, 486).
Another institutional innovation to keep democratic constitutional reform from being
dominated by an elite driven populist agenda is to introduce mini-publics at the agenda
and question setting phase of constitutional referendums.7 This was the model adopted in
Ireland in the establishment of Irish Constitutional Convention in 2012 (Suiter, Farrell
and Harris 2016). The Convention had 100 members: one chair, sixty-six randomly
selected ordinary citizens and thirty-three places reserved for legislators allocated pro-
portionate to party’s seats in Parliament. This make-up was an innovative departure from
Citizen Assemblies in bringing together ordinary citizens with the expertise and per-
spective of lawmakers across the ideological and partisan spectrum. The Convention
began with a remit to review and consider a number of constitutional questions which the
Convention expanded on in its first meeting. After much deliberation, consultation with
civil society and input from citizens at large, the Convention submitted 40 recommen-
dations to the government for consideration a number of which would require a consti-
tutional referendum to enact. Three have subsequently gone to referendum that most
significant of which was the marriage equality referendum of 2015.8 This process is a
1128 Philosophy and Social Criticism 45(9-10)

good illustration of how to think about a proceduralized popular sovereignty in concrete

terms. Popular opinion and will formation took place through the triangulation of three
institutions mediated by an open, free and critical public sphere: a democratically elected
Parliament, a special Constitutional Convention with a significant citizen component and
a popular referendum process. None of these institutions alone represent the definitive
exercise of popular sovereignty; the people exercising democratic self-determination can
be seen in a retrospective assessment of the deliberative quality, inclusiveness and fair-
ness of the process as whole.
If we compare the Irish Constitutional Convention to the Venezuelan Constituent
Assembly, we again see a striking difference in structure and function. In Venezuela,
opposition parties were excluded from the process, in Ireland all parties participated
including three representatives from Northern Ireland. The Irish Constitutional Conven-
tion expanded its agenda after deliberation and consultation. The Venezuelan Constitu-
ent Assembly had a pre-given party approved agenda. Finally, the Irish Constitutional
Convention was part of a broad society wide conversation about constitutional issues that
led up to, over a significant period of time, a referendum. The Venezuelan Constituent
Assembly had the power to directly change the constitution.

Conclusion
The arguments in this article are motivated by the concern that the take home lesson from
populist constitutionalism will be that citizen democratic participation in constitutional
reform is dangerous and undesirable. But it is only dangerous and undesirable if we limit
our view of democratic participation to plebiscitarian procedures and our theories of
democracy to narrow majority-rule views. I have argued that deliberative constitution-
alism offers an alternative theory of democracy as well as an alternative idea about real
participation. I have suggested that the constitutional reform processes in Scotland and
Ireland might be helpful here. I am not offering a solution to the populist authoritarian
slide we are seeing in places like Hungary, Poland, Turkey and Venezuela. I do not for a
minute think that the populist parties in power will seek to construct and facilitate open
critical debate in the public sphere about constitutional futures. This article is really
about the lessons we take away from the populist claims to be acting in the name of the
people and pursuing more perfect democrat regimes. With the failure to respect plural-
ism and the hostility towards the public sphere populists, I have argued, forfeit the claim
to be democratic.

Notes
The author wishes to thank Mert Onal for translation and research contributions to this paper.
1. The No campaign faced serious restrictions with arrests of a number of public figures. By some
accounts, the Yes campaign had 90% of the airtime during the campaign. On all press freedom
indices, Turkey has been sinking. Reporters Without Borders ranked Turkey 157 out of 171 on
press freedom for 2018 (https://rsf.org/en/ranking).
2. http://blogs.lse.ac.uk/mediapolicyproject/2017/08/29/the-state-of-hungarian-media-endgame/.
3. https://freedomhouse.org/country/venezuela.
Chambers 1129

4. There are other interesting cases of citizen participation in constitutional reform, for example,
Iceland, Estonia and Luxemburg, that I do not have time to discuss (Contiades and Fotiadou
2018; Landemore 2015; Reuchamps and Suiter 2016).
5. Parkinson argues that the debate actually began 7 years before the referendum when the issue
was first raised by the independence party (Parkinson 2018, 253).
6. Another interesting contrast is to the Brexit referendum which was also appears to have been
designed as a quick mandate producing procedure which then of course backfired.
7. Some people associate deliberative democracy exclusively with mini-publics and see referen-
dums as a form of direct democracy (Farrell et al. 2019). I have suggested in this article that the
design and process of referendums can be evaluated on a deliberative scale and so referendums
can also be a form of deliberative democracy.
8. The other question on the 2015 ballot was to reduce the age of candidacy for the President from
35–21 and then in 26 October 2018 to repeal the law against blasphemy. The 18 September
2018 referendum on abortion came out of a separate Citizens Assembly of 100 randomly
selected citizens. This again is a good illustration of fluidity. In the abortion case, members
of Parliament were not invited to participate in the Assembly as this was designed to wrestle
with one issue rather than thinking through a more general restructuring of the constitution
(Farrell et al. 2019).

References
Abts, Koen, and Stefan Rummens. 2007. “Populism and Democracy.” Political Studies 55:
05–424.
Ackerman, Bruce. 1991. We the People: Foundations, Vol. 1. Cambridge: Harvard University
Press.
Arato, Andrew. 2016. Post Sovereign Constitution Making: Learning and Legitimacy. New York:
Oxford University Press.
Arato, Andrew. 2017. “Populism and Courts.” I-CONnect Blog of the International Journal of
Constitutional Law. http://www.iconnectblog.com/2017/04/populism-and-the-courts/.
Bora, Birke. 2017. “Turkey’s Constitutional Reform: All You Need to Know.” Al-Jazeera, January
17. https://www.aljazeera.com/indepth/features/2017/01/turkey-constitutional-reform-
170114085009105.html.
Cohen, Roger. 2018. “It’s Time to Depopularize ‘Populist’.” New York Times, July 13. https://
www.nytimes.com/2018/07/13/opinion/populism-language-meaning.html.
Contiades, Xenophon, and Alkeme Fotiadou. 2018. Participatory Constitutional Change: The
People as Amenders of the Constitution. London: Routledge.
Crick, Bernard. 2002. Democracy: A very Short Introduction.Oxford: Oxford University Press.
De La Torre, Carlos. 2017. “Populism in Latin America.” In The Oxford Handbook of Populism,
edited by Cristóbal Rovira Kaltwasser, et al., 195–213. Oxford: Oxford University Press.
Dixon, Rosalind, and Adrienne Stone. 2016. “Constitutional Amendment and Political Constitu-
tionalism: A Philosophical and Comparative Reflection.” In Philosophical Foundations of
Constitutional Law, edited by David Dyzenhaus, and Malcolm Thorburn, 93–118. Oxford:
Oxford University Press.
Dixon, Rosalind. 2017. “Populist Constitutionalism and the Democratic Minimum Core.” Verfas-
sungsblog.de, April 26. https://verfassungsblog.de/populist-constitutionalism-and-the-demo
cratic-minimum-core/.
1130 Philosophy and Social Criticism 45(9-10)

Druckman, Pamela. 2018. “The News is bad in Hungary.” New York Times, November 1, 2018.
https://www.nytimes.com/2018/11/01/opinion/hungary-viktor-orban-press-freedom.html.
Eisenstadt, Todd A., A. Carl LeVan, and Tofigh Maboudi. 2015. “When Talk Trumps Text: The
Democratizing Effects of Deliberation During Constitutional-Making, 1974–2011.” American
Political Science Review 109, no. 3: 592–612.
Elstub, Stephen, and Gianfranco Pomatto. 2018. “Mini-Publics and Deliberative Constitutional-
ism.” In The Cambridge Handbook of Deliberative Constitutionalism, edited by Ron Levy,
et al., 295–310. Cambridge: Cambridge University Press.
Erdoğan, Recep Tayyip. 2007. “Başbakan Erdoğan 21 Ekim 2007 Basın Toplantısı – 1. Bölüm”
[Prime Minister Erdoğan’s October 21, 2007 Press Conference Part 1]. Translated by Mert
Onal. Youtube, October 25, 2007. https://www.youtube.com/watch?v¼KJpwLGa2a9c&t¼2s.
Erdoğan, Recep Tayyip. 2017. “Yenikapı’da tarihi buluşmada tarihi mesajlar” [Historic Messages
at the Historic Meeting at Yenikapı]. Translated by Mert Onal. Sabah. April 8, 2017. https://
www.sabah.com.tr/gundem/2017/04/08/dakikalar-gectikce-yenikapida-cosku-artiyor.
Espejo, Paulina Ochoa. 2017. “Populism and the Idea of the People.” In The Oxford Handbook of
Populism, edited by Cristóbal Rovira Kaltwasser, et al., 607–627. Oxford: Oxford University
Press.
Farrell, David, Jane Suiter, and Clodagh Harris. 2019. “‘Systematizing’ Constitutional Delibera-
tion: the 2016-2018 CITIZENS’ Assembly in Ireland.” Irish Political Studies 34, no. 1:
113–23.
Frank, Jason. 2018. “Populism Isn’t the Problem.” Boston Review, April 15. https://bostonreview.
net/politics/jason-frank-populism-not-the-problem.
Habermas, Jürgen. 1996. Between Facts and Norms: Contributions to a Discourse Theory of Law
and Democracy. Translated by William Rheg. Cambridge: MIT Press.
Habermas, Jürgen. 2001. “Constitutional Democracy: A Paradoxical Union of Contradictory
Principles?” Political Theory 29: 766–81.
Hailbronner, Michael, and David Landau. 2017. “Introduction: Constitutional Courts and Popu-
lism.” I-CONnect: Blog of the International Journal of Constitutional Law. http://www.icon
nectblog.com/2017/04/introduction-constitutional-courts-and-populism/.
Kaltwasser, Cristóbal Rovira, et al., eds. 2017. The Oxford Handbook of Populism. Oxford: Oxford
University Press.
Kong, Hoi, and Ron Levy. 2018. “Deliberative Constitutionalism.” In The Oxford Handbook of
Deliberative Democracy, edited by André Bächtiger, et al., 625–39. Oxford: Oxford University
Press.
Landemore, Hélène. 2015. “Inclusive Constitution-making: The Icelandic Experiment.” Journal
of Political Philosophy 23, no. 2: 166–91.
Lefort, Claude. 1988. Democracy and Political Theory. Minneapolis: University of Minnesota
Press.
Levitsky, Steven, and Daniel Ziblatt. 2018. How Democracies Die. New York: Crown.
Levy, Ron, et al., eds. 2018. The Cambridge Handbook of Deliberative Constitutionalism. Cam-
bridge University Press.
Mounk, Yascha. 2018. The People v Democracy: Why our Freedom Is in Danger and How to Save
It. Cambridge: Harvard University Press.
Mudde, Cas, and Cristobal Rovira Kaltwasser. 2017. Populism: A Very Short Introduction.
Oxford: Oxford University Press.
Chambers 1131

Müller, Jan-Werner. 2016. What is Populism? Philadelphia: University of Pennsylvania Press.

Müller, Jan-Werner. 2017. “Populism and Constitutionalism.” In The Oxford Handbook of Popu-
lism, edited by Cristóbal Rovira Kaltwasser, et al., 590–606. Oxford: Oxford University Press.
Parkinson, John. 2018. “Ideas of Constitutions and Deliberative Democracy and How They
Interact.” In The Cambridge Handbook of Deliberative Constitutionalism, edited by Ron
Levy, et al., 246–55. Cambridge: Cambridge University Press.
Reuchamps, Min, and Jane Suiter, eds. 2016. Constitutional Deliberative Democracy in Europe.
Colchester: ECPR Press.
Rummens, Stefan. 2017. “Populism as a threat to Liberal Democracy.” In The Oxford Handbook of
Populism, edited by Cristóbal Rovira Kaltwasser, et al., 554–70. Oxford: Oxford University
Press.
Santora, Marc. 2018. “Poland Purges Supreme Court, and Protesters Take to the Streets.” The New
York Times, July 3. https://www.nytimes.com/2018/07/03/world/europe/poland-supreme-
court-protest.html.
Sentop, Mustafa. 2016. “Eninde sonunda bu millet yeni anayasayı yapacak” [The people will
eventually make this new constitution]. Translated by Mert Onal. TRT News, February 13,
2016. https://www.trthaber.com/haber/gundem/eninde-sonunda-bu-millet-yeni-anayasayi-
yapacak-235286.html.
Suiter, Jane, David M. Farrell, and Clodagh Harris. 2016. “The Irish Constitutional Convention: A
Case of ‘High Legitimacy’?” In Constitutional Deliberative Democracy in Europe, edited by
Min Reuchamps, and Jane Suiter. Colchester, UK: ECPR Press.
Tierney, Stephen. 2012. Constitutional Referendums: The Theory and Practice of Republican
Deliberation. Oxford: Oxford University Press.
Tierney, Stephen. 2015. “Direct Democracy in the United Kingdom: Reflections from the Scottish
Independence Referendum.” Public Law 4: 633–51.
Uitz, Renáta. 2015. “Can You Tell when an Illiberal Democracy is in the Making? An Appeal to
Comparative Constitutional Scholarship from Hungary.” International Journal of Constitu-
tional Law 13, no. 1: 279–300.
Urbinati, Nadia. 2014. Democracy Disfigured. Cambridge: Harvard University Press.
Weyland, Kurt. 2013. “The Threat from the Populist Left.” Journal of Democracy 24, no. 3:
18–32.
_ defa millet kendi anayasasını yapacak” [For the first time the people will
Yazici, Hayati. 2017. “Ilk
make its own constitution]. Translated by Mert Onal. AK Party, March 22, 2017. https://www.
akparti.org.tr/site/haberler/ilk-defa-millet-kendi-anayasasini-yapacak/89136#1.