We need a constitution that will bend to populist winds so that it will not break.
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.