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Right Populism, Left Populism, and Constitutional Constraints

Populist political movements can do some good for a democracy. Democracy, Joseph Schumpeter noted, is a competition between electing different elites. While these elites have different views on many important issues they also shape government policy according to common interests that may conflict with those of most citizens. Thus, democracy has agency costs, and populist movements try to reduce them. Some divides of our time between elites and non-elites include illegal immigration and certain forms of corporate welfare.

But populist movements themselves have their shortcomings. Precisely because they lack elite guidance, they often embrace policies that are popular in the short term but have such long-term defects that they fail any sensible cost-benefit test. They also often pander to popular prejudices against unpopular groups to gain support.

Right-wing and left-wing populists share some bad tendencies. Both, for instance, tend to ignore deficits and government debt. The right wants to preserve entitlements without reform, because its base often is in older voters who disproportionately benefit from them. The left wants to hand out benefits to an even wider population and thus is even more likely to bankrupt government.

But right and left populists also have flaws that are peculiar to their respective brands. The right’s xenophobia often makes it suspicious of even legal immigration of the talented, and ethnic prejudices lead to demonization of immigrants on the grounds of ethnicity rather than illegality. Historically, right populists have sometimes lashed out at ethnic groups within their nations. Left populists, in contrast, more often stir up resentment against the rich and large businesses, playing on passions of envy.

Whether right or left populists are worse for the nation depends to some extend on its constitution. If provisions against racial and ethnic discrimination are strong, the worst aspects of right-wing populism will be restrained. Similarly, if provisions protecting property and economic rights are strong, left-wing populism will be contained. Of course, constitutions themselves can be eroded by political movements. But another feature of populist movements in a democracy is that they tend to be short-lived. They are often not as competent as parties led by elites, leading to obvious policy mistakes. The passions that fueled them also generally subside. A good constitution thus can cabin the damage that they may do, while still permitting them to shake up complacent elites.

It is thus the content of current constitutional law that makes right-wing populist movements somewhat less dangerous than left-wing movements in the United States. Our constitution rightly has provisions against religious, racial, and ethnic discrimination by the government. And the enforcement of these provisions are of such long standing that they have helped to give rise to more general norms against discrimination throughout much of society.

In contrast, whatever was the Constitution’s original meaning, we no longer have strong protections for economic freedom or obstacles to centralized government economic control. Thus, left-wing populists can enact their growth and freedom destroying plans without much fear of constitutional reversal. The one possible exception is a wealth tax, which is probably unconstitutional, even if ironically it is pushed by the one former law professor running for President. But that is the exception that proves the rule. Sharp increases in the minimum wage, the Green Dream, and sky high income tax rates are all economic folly, but under our positive law defined by Court precedent, they are constitutional folly.

Reader Discussion

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on February 22, 2019 at 10:26:36 am

Populism tends to be defined by what it isn't. In this case, apparently a political movement not led by an "elite." Apparently the leaders of a movement declared populist by "elites" are demagogues, not elites, whereas the leaders of, say, the communist political movement are allowed the coveted title. Yet that elite-led movement led to "obvious policy mistakes," so that criterion can't really be what differentiates them from populist movements. Nor can "xenophobia," as the Left and its "elites" have shown themselves both historically and in the present to be equal to any ordinary gang of skinheads in their anti-Semitism.

I place "elite" in quotes because I have no idea what that term means, if it even means anything at all other than "us" in the eternal "us versus them" rubric.

And McGinnis' confidence in the ability of the Constitution to withstand leftist onslaughts seems misplaced, in light of Ascik's article today in this blog.

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QET
on February 22, 2019 at 10:55:29 am

Agreed. McGinnis herein puts on offer the "usual" cliches hurled at the "usual suspects" - populists while at the same time insisting that if only these wretches would (once again) follow the failed prescriptions of the *elites* all would be well and kosher. oops, we cannot use kosher as it may offend the anti-Semitic sensibilities of the Leftist elites.

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gabe
on February 22, 2019 at 20:09:32 pm

'Populism' is a strange term. A populist *movement* is an emergent phenomenon of a pre-existing 'populist' sentiment or disposition.

Populist *movements* are reactionary movements that target perceived enemies of 'the people', but more particularly are targeted at elites who have failed to satisfy populist expectations.

In virtually every case where 'xenophobia' (a term that has *significantly* expanded beyond its original clinical meaning) has presented in right-wing populist movements, the *perception* is that the target ethnic group is somehow operating in collusion with the elite.

I had to pause at 'They are often not as competent as parties led by elites, leading to obvious policy mistakes' because Mr. McGinnis clearly has lost the thread of the reason why populist movements occur: Elite failure to avoid 'obvious policy mistakes'.

It's fair to point out that the mass-term 'elite' somewhat obscures what is really going on within populist/elite conflict.

Here Max Weber's 'Iron Law of Oligarchy' can be of utility.

The 'elite' are not the 'elite' because they are 'the best and the brightest' but because within any given *system*, those who rise in the hierarchy best exemplify the overt and covert values of the *system*.

The *professionalization* of politics, with its own system of institutions and 'merit badges' is *precisely* why there is a populist movement in America.

This system of institutions has produced a group of individuals who are *credentialed* to govern, but are not, in fact competent to do so.

They are an 'elite' in the Weberian sense, but not in the Darwinian sense of that word.

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HamburgerToday
on March 29, 2019 at 16:29:06 pm

[…] pose significant threats. But, as my friend and prominent legal scholar John McGinnis points out in a thoughtful post, the danger is partly mitigated by constitutional constraints on government power. John also argues […]

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Image of Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism? – ALibertarian.org
Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism? – ALibertarian.org
on March 29, 2019 at 17:02:38 pm

[…] pose significant threats. But, as my friend and prominent legal scholar John McGinnis points out in a thoughtful post, the danger is partly mitigated by constitutional constraints on government power. John also argues […]

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Image of [Ilya Somin] Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism? – Ben Lee
[Ilya Somin] Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism? – Ben Lee
on March 29, 2019 at 17:03:45 pm

[…] pose significant threats. But, as my friend and prominent legal scholar John McGinnis points out in a thoughtful post, the danger is partly mitigated by constitutional constraints on government power. John also argues […]

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Image of Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism? | Libertarian Party of Alabama Unofficial
Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism? | Libertarian Party of Alabama Unofficial
on March 29, 2019 at 17:16:51 pm

[…] pose significant threats. But, as my friend and prominent legal scholar John McGinnis points out in a thoughtful post, the danger is partly mitigated by constitutional constraints on government power. John also argues […]

read full comment
Image of Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism? – Grossly Offensive
Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism? – Grossly Offensive
on March 29, 2019 at 21:17:19 pm

[…] pose significant threats. But, as my friend and prominent legal scholar John McGinnis points out in a thoughtful post, the danger is partly mitigated by constitutional constraints on government power. John also argues […]

read full comment
Image of [Ilya Somin] Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism? – Jehtro Lewis – Blog
[Ilya Somin] Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism? – Jehtro Lewis – Blog

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.