Is ‘Populist Constitutionalism’ an Oxymoron?

by Steven F. Hayward

My short answer to this question is “no.” That’s also my long answer, too. But my post yesterday about good new web ventures in constitutionalism excited an argument in the comments thread over one phrase: “The Tea Party is something James Madison might have regarded at first glance to be an oxymoron — it is a populist constitutional movement.” Now, I might have added a next sentence — one that I have in fact used in talking about the Tea Party in recent speeches — that “on second thought Madison might have celebrated that the Tea Party represents the fulfillment of one of the Constitution’s larger purposes, which was to create a reverence among citizens for the principles of the nation embodied in that document.” But the post was already long and I didn’t want to dilate this point.

But perhaps I should have, for this point is an excellent illustration of how the constitutionalism of limited government is not merely a matter of how we construct individual clauses like the Second Amendment or the Commerce Clause, but involves grasping the sometimes subtle logic of its institutional design. It is not necessary to resolve the conflicting understandings of “populism” to observe that Madison and the founders were tying to resolve a simple problem: They wanted to construct governing institutions that had a popular basis that would not succumb to the fatal weakness of popular government, which is majoritarian tyranny, or transient majorities motivated by unjust passions (especially the passion to take other people’s property). Of course we are to be governed by majority rule as a practical matter, and the “anti-majoritarian” features of the Constitution, such as bicameralism, the (originally) indirect election of senators and the president, the veto, and the supra-constitutional device of the Senate filibuster added later, are all designed to produce a certain kind of majorities. The founders called it a “deliberative” majority, but I used to reduce this in the classroom to “a majority that thinks rather than feels.”

Okay, there are numerous objections and arguments against this thumbnail sketch; to be sure, the passage of Obamacare could be offered as an example of a passionate transient majority exacting something lacking the consent of the governed (as I have argued at length elsewhere), and therefore as an instance where the founders’ constitutional restraints didn’t work. But the Tea Party reaction that grew out of the overreach of the liberal congressional majority of 2009–2010 I think vindicates my point that we’re seeing an authentic populist constitutional movement, and this post is already long enough.

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