The Counter-Playbook: Resisting the Populist Assault on Separation of Powers

STEPHEN GARDBAUM*

This Article first distinguishes “political populist” regimes, like that of Trump’s America, from “structural populist” ones, as in Hungary and Poland. It then shows how the major target of structural populism’s determined assault on constitutional democracy has been the separation of powers rather than free and fair elections, political and civil rights, or the rule of law. Since neutralizing all sources of independent and dispersed political power has been the distinctive strategy of structural populism, the Article argues that the defense of constitutional democracy must develop a similar disciplined focus, in the form of an anti-concentration principle that makes dismantling separation of powers more difficult to accomplish. This anti-concentration principle has a number of components in practice, addressing the major structural elements of constitutional, institutional, and democratic design, and amounts to a counter-playbook for constitutional democrats on how to increase resistance to, or preemptively thwart, the moves that have proven so successful over the past few years.  Of course, relying on constitutional, institutional, and democratic design to render the concentration of political power more difficult to achieve is not a panacea, and can only be part of any solution to the threats posed by authoritarian populism, but it is not irrelevant.  In particular, the counter-playbook that is developed and presented in this Article may help to prevent political populist regimes from transitioning into the more dangerous second type, and frustrate or slow down the slightly less determined, ruthless, politically astute, or publicly supported structural populist.

* Stephen Yeazell Endowed Chair in Law, UCLA School of Law.  Thanks to participants and audience members at the 2019 Melbourne Institute of Comparative Constitutional Law, the International Forum on the Future of Constitutionalism’s 2020 Works-in-Progress Summer Roundtable, and the 2020 Constitution Day Lecture at Drake University, especially Tom Ginsburg, Aileen Kavanagh, Tarun Khaitan, Stijn Smet, and Mark Tushnet, for helpful comments and questions on earlier versions of this Article.