Modern Constitutionalism under Challenge

Modern constitutionalism - in the distinctive form of constitutionalism with a strong judicial component as well as a significant international dimension - has become predominant in the post-Second World War period. Until recently, core debates reflected in particular on tensions between the domestic level of constitutionalism and increasingly evident transnational developments, not least in the form of international human rights regimes and forms of regional integration. Key discussions related to tensions emerging from forms of constitutional pluralism, the status of sovereignty in post-national times, as well as emerging forms of cosmopolitanism. Recently, an additional challenge has emerged, that of a backlash, primarily understood in relation to a strengthening of populist political forces. The latter poses a strong challenge to the postwar constitutional and legal manifestations of constitutionalism. The chapter first discusses modern constitutionalism and its distinctive postwar offshoot, 'new' or 'legal constitutionalism'. Subsequently, a brief discussion of different normative approaches to constitutionalism is provided, in order to put the populist challenge in context. Finally, the backlash towards legal constitutionalism is discussed from the angle of a critique on judicialized democracy in the name of popular sovereignty.