How to Rescue ‘The People’ from Populism
Reviving the law to reclaim liberal democracy
Can Rawls’s paradigm of “political liberalism” help us understand populism and cope with it? Should this question sound surprising, think of how much water has flown under the bridges of democracy since the time when advocates of participatory, “strong” democracy like Barber intimated that “the survival of democracy depends on finding for it institutional forms that loosen its connection with liberal theory.”  Today, it is populists and President Trump who twist that questionable plea to a totally unpredicted outcome!
Brexit and the election of Trump show that the challenge of including new constituencies brought to the shores of the democratic polities by migratory and humanitarian emergencies pales by comparison with the challenge of coping with indigenous populists’s unreasonability, something that in Europe we began to experience back when the first Berlusconi government still looked like an anomaly to be laughed at. To confront that challenge, we need 1) to grasp the anti-liberal, not necessarily anti-democratic, core of populism, 2) to get rid of two dogmas that many progressive critics fall prey to.
What is populism?
It is easier to say what populism is not than to say what it is. First, it is not the ideology of a specific social class. Embraced by farmers and peasants in the 19th century (US and Russia), populism later became the preserve of the lower middle class, to resurface in the 21st century within a despondent working class. Second, defining populism merely as resentment against the elites or as anxiety vis-à-vis downward mobility obscures the political core of populism. Third, it is impossible to associate populism with certain policies given the variety of orientations that it can assume. Fourth, populism cannot be understood as the preserve of oppositional movements, and we can look no further than to lines from President Trump’s inaugural address, reminiscent of President Chavez’s claim that with him in charge “the people rule,” for evidence of that: “we are transferring power from Washington, D.C. and giving it back to you, the people” and “January 20th, 2017 will be remembered as the day the people became the rulers of this nation again.” Finally, populism cannot be equated with a shift from representative to direct democracy: often populist movements do accept representative institutions and aspire to wrest them from the corrupt elite. So I define populism in terms of a threefold pattern of unreasonability.
The first ingredient is the idea that the people is the electorate, and the electorate is the nation. The notion of ‘the people’ is a crucial element of all democratic order. Think of “We, the People” in the Preamble of the US Constitution or the Lincolnian “government of the people, by the people, for the people,” also found in Article 2 of the French Constitution. The difference with the populist understanding of the people lies in how we tell who in the population counts as the people. Populist forces provide an over-simplified response to this difficulty. They reduce the people to the electorate. Messianic expectations are then associated with every electoral round. Elections are not tests for the public approval of alternative platforms, but showdowns where the corrupt politicians are finally ousted by those who represent the people. Not only the “presentification” of the people as the current electoral body annihilates the historical depth of the people but it also essentializes the people as the nation, cultivating the appearance of a monolith. President Trump’s electoral slogan, significantly, was “Make America great again!” not “Make the United States great again!”
What is “unreasonable” in this reduction of “the people” to the electorate is the overlooking of three other meanings of the expression “the people.” First, populism casts out of sight the people as the author of the constitution over a time that spans from the initial framing to the latest amendment. Second, many populist accounts fail to include the participating people, those who strike, demonstrate, and through “voice” contribute to the shaping of public opinion. Third, “the people” is also the sum total of the respondents to polls run through random sampling. Their opinion exerts significant influence over contemporary politics. These other images of the people — called by Rosanvallon “the social people, the people-as-a-principle and the random people”  — jointly form an antidote to the populist notion of “the people” as present-day “native” voters.
Second, the electorate is the pro-tempore constituent power. 21st century populism is not against democracy, but mainly against liberalism. It worships majorities, but rejects all checks and balances and revives an ancient split between democracy and liberalism which deliberative democracy and Rawls in the first place had healed. Thus “post-democracy” (Crouch) is a misleading label: populism is majoritarian anti-liberalism premised on the idea that because the electorate is the people’s current incarnation, the constitution is in the electorate’s hands. This means, among other things, that constitutional courts as interpreters of the constitution should be responsive to the orientation and ways of thinking of the majority of the electorate. Such understanding was aired even in the Supreme Court, in the dissenting opinion of justices Roberts, Scalia and Thomas in Obergefell. In their view, the Court’s opinion amounted to the judicial “creation of a new right” to same-sex marriage, allegedly descending from the “equal protection” clause of the Fourteenth Amendment, when the legislatures of “more than half the States,” elected by local majorities that add up to a national majority, had pronounced themselves against such right.
From the perspective of political liberalism, populism erodes the institutional anchoring of public reason in a supreme or constitutional court and confines reasonability to an occasional virtue of political actors. However, populism is also unreasonable in very commonsensical ways. For instance, it violates the commonsense intuition that a separation ought to exist between any game being played and the rules that define it. It places the rules of the game in the hands of the players (and their fans) while they are playing the game. Furthermore, the idea of reinterpreting the constitutional essentials in light of the orientations of the electorate is self-defeating: a legal order with a constitution that promptly adapts to the changing orientation of the majority of citizens is no different from a polity with no constitution at all. Populism leads to an implicit de-constitutionalization of our democratic regimes.
A third ingredient of populism is the rejection of pluralism or a belief in justified intolerance. Populism presupposes not only — like non-populist deliberative democracy — the existence of a knowable common good, but also that “there is only one proper common good to be discerned by the authentic people. Hence … there can be no such thing as a legitimate opposition.” 
Justified intolerance explains another facet of the populist outlook: impatience with internal dissent. The leader in chief reaches out directly to the rank and file, there is less collegiality in decision-making, and a smaller number of intermediate organizational layers between the rank and file and the leader in chief: a feature shared in common with fascism.
Finally, populism is a curious flipside of technocratic neo-liberalism: both reduce the plurality of options to one right interpretation of the popular will or one right technical solution (think of Thatcher’s TINA acronym), eliminating the space of reasonable disagreement — the core of any liberal approach to democracy.
How can liberal-democracy respond to the populist challenge?
Not simply by seeking to entrench constitutionalism as we know it. The populist upsurge is a dubious response to real problems. Countering the symptom will not suffice: we need to grasp and undermine the causes of populism, to win back Joe the Plumber and isolate the racist, white-supremacist, fascist-like fringes of populism. Two causes of the populist upsurge are a) the exponential growth of inequality worldwide and b) the new absolute power that disembedded financial markets exert on democratic legislatures.
We live in societies where profits increasingly originate from financial gains, not from manufacture or services: in 2010, 40% of all profits in the US were estimated to have come from finance, and this is an expanding trend. During this momentous transformation towards financialization, the value of labor has constantly been diminishing and the impact of this process goes well beyond the economic sphere. It fuels and sustains a steep rise of inequality. Not only the income and wealth of the top 1% of the population have reached levels incomparable with the everyday reality of everybody else, as the social movements claiming to represent “the 99%” testify, but a deep restructuring of the basis of inequality has been underway. Rent is back. This new inequality, based on financial rent, rather than profits from productive activities, has profoundly negative implications for democracy: as Piketty has argued, it undermines “the meritocratic values and principles of social justice fundamental to modern democratic societies.” 
Furthermore, financial markets now wield an absolute power over the democratic polities that long ago defeated the absolute power of kings. To be sure, markets are immersed in a web of regulatory provisions — statutes, guidelines, regulations, benchmarks. But the law itself — especially statutory law — is often drafted in anticipation of what markets are “willing” to accept. In this sense, markets influence law-making more than the law influences markets: therein lies the absoluteness of their power.
Just as absolute monarchs could dissolve or convene parliaments — think of the tensions between the Stuart monarchy and the Westminster parliament in the 17th century — so today’s markets have the power to withdraw legitimacy from democratic lawmaking by way of dispensing or withholding prosperity. Seven democratic governments in Europe have been brought down by the pressure of the markets in the wake of the 2008 crisis: in Portugal (2009), Spain (2011), Greece, Ireland, Iceland (2009), Italy (2011) and Latvia (2011).
Populism cannot be eradicated unless rampant inequality and the absolute power of disembedded financial markets are offered remedies other than protectionist closure. Instead, center-left progressive parties have flirted with the markets’ absolute power, promising to tame it in the general interest, in fact failing to represent those most exposed to it. This is the moment of truth in the narrative of the “forgotten man.” The prospect for reclaiming liberal-democracy is linked with the ability to offer an alternative response.
Outlining such alternative response cannot rest on identifying one linchpin-like panacea policy. Just as Roosevelt’s New Deal tamed the power of 1920’s capitalism through a combination of 4 or 5 policies, so countering the absolute power of disembedded financial markets will require a combination of distinct measures  and the jettisoning of two dogmas: a) mistrust of the law and b) the stigma on consumption.
Many radical-democratic critical theorists consider law the propagator of a strategic habitus, detrimental to social integration, and understand juridification as one of the main causes for widespread “de-politicization.” They overlook the fact that law has the advantage — crucial in our context — of not presupposing collective subjects, shared narratives and memory in the way politics does. Law may presuppose these things when enacted by legislative assemblies composed of parties in electoral competition, but not when it functions as common law or when it is enforced.
Furthermore, one socio-economic function that has escaped fragmentation and has remained truly universal, though not highly regarded in critical circles, is consumption broadly understood and kept distinct from the culture of “consumerism.” We participate in social production in various capacities, difficult to reconcile, but we are all consumers. We all face the alienating experience of being a dispensable atom confronted with enormous economic forces — private sector companies, utility or insurance companies, telecommunication companies, regulatory agencies, rating agencies, banks — that dictate rules over which we have virtually no influence.
Nothing prevents radical democrats from injecting strong normativity into consumer-protection through class-action and from understanding class-action, especially where supplemented with “punitive damages,” as implementing a strong principle of equality and forcing the market to truly vindicate the premise of the equal standing of the contracting parties. Nothing prevents radical-democratic theorists from giving class-action a new twist capable of representing a third course between populist neonationalist closure and neoliberal globalism. Nothing but prejudice against “consumption” prevents us from understanding it as a terrain of contestation where at stake is nothing less than the principle of equality. “Equal protection of the laws” needs to acquire a new meaning, beyond racial and gender equality, connected with equality of opportunity in the market.
Consider financial prime movers such as rating agencies. Standard & Poor, Fitch, Moody’s, all often affect the reality they claim to analyze. Standard & Poor famously downgraded the US “sovereign credit rating” in April 2011 and in 2012 bashed the so-called “Eurobonds,” yet to be issued by the Central European Bank, as “trash” before they existed — hardly an observation. An example of class-action led by local government comes from Australia. An eight-year legal battle between the City of Swan (Western Australia) and Standard & Poor over misleading and deceitful conduct in the handling of ratings prior and during the collapse of Lehman Brothers has involved a group of 92 members led by the City of Swan: among these claimants were investors, councils, churches and charities. Impunity is the prime feature of absolute power. The reclaiming of democracy begins with holding these and other actors, like sovereign funds, accountable through government sponsored class-actions aimed at compensating citizens unduly damaged by their decisions.
One could dismiss these law-suits as internal to the logic of an instrumental use of law, subservient to the neoliberal hegemonic credo, but why should we think that under the present conditions of hyperpluralism, fragmentation of social classes, and lack of a counter-hegemonic comprehensive vision — understandably absent in times of post-metaphysical thinking — it is possible to oppose financialized capitalism more effectively through traditional street-demonstrations, petitions, strikes, press-campaigns?
The demand for “protection” need not be left in the hands of populist forces, but may take the form of successful legal cases that proceed from the global constitutionalism of human rights and interlocking court-judgments. Liberal-democracy cannot be properly rescued unless “equal protection of the laws” is reinterpreted as a third course between the center-left complacent acquiescence to neoliberalism and the populist promise of remedial closure against globalization.
 B.Barber, Strong Democracy. Participatory Politics for a New Age (1984), (Berkeley: University of California Press, 1984), xxxiv.
 See J.W.Müller, “«The People Must Be Extracted from Within the People»: Reflections on Populism,” Constellations 2014, 21, 4, 485-486 and J.W.Müller, What is Populism, (Philadelphia: University of Pennsylvania Press, 2016).
 P. Rosanvallon, “A Reflection on Populism,” p. 8.
 See M. Canovan, The People (Cambridge: Polity Press, 2005).
 J. W. Müller, “The People Must Be Extracted from Within the People,” p. 487.
 Th. Piketty, Capital in the Twenty-First Century, tr. by A.Goldhammer (Cambridge, MA: Harvard University Press, 2014), 26.
 For more details, see A.Ferrara, “Democracy and the Absolute Power of Disembedded Financial Markets,” in A. Azmanova and M. Mihai (eds), Reclaiming Democracy. Judgment, Responsibility and the Right to Politics (New York and Abingdon: Routledge, 2015), pp. 110-25.