Law, Culture, Politics,

An Interview with David Fontana, Professor of Law at George Washington University


“Labels matter. Labels signal whether something is on the wall or off the wall. Just by the word that we use to describe something, we decide whether we should take it seriously as an ideology or not. This is not just an effort in linguistics, this is an effort in legitimizing or delegitimizing major political arguments and movements.”

By Madison Breshears
December 11, 2018

David Fontana is a professor of law at George Washington University Law School. He clerked on the U.S. Court of Appeals for the Ninth Circuit and holds degrees from Oxford University and Yale Law School. He is a contributor to the nation’s most preeminent scholarly journals on matters of Constitutional law, and his legal commentary may be seen in general publications like Slate and The New Republic. He is a frequent consultant to Congress, presidential campaigns, and foreign Constitution-drafters on issues of Constitutional law. A link to his paper “Unbundling Populism” discussed in this interview, may be accessed here.

You published an article in the UCLA Law Review titled “Unbundling Populism.” In it, you distinguish between “bundled” and “unbundled” populism. As a starting off point, could you briefly explain what you mean by those terms and what the difference is?

Sure, by bundled populism I mean the joining together of a single concept of what are really three different types of arguments. One is that populism, the anti-establishment of it, seeks to criticize those who have power in a society. The second is anti-democratic, that is, arguments made to undermine the functioning of a democratic society. Third that its the hoax, and it targets certain groups as being inferior or not truly part of the people. Bundled populism really joins all three of those things together into what is defined as populism—and it seems to say that they're close to the same thing, or that they're so strongly correlated that when you have one you have the other two. Unbundled populism means, for me at least, just one of those dimensions, and in particular, anti-establishment—you can think that there's an elite in a society that has too much power without being an authoritarian or xenophobe.

So if I’ve understood it correctly, your argument is that unbundled populism shouldn't be labeled as true populism because of its, as you put it, “xenophobic and authoritarian” sentiments.

I don't have a feeling about which is the true populism, just that they're sufficiently different things.

You also say that the current conflation of the two is harmful to populism, or to anyone trying to understand populism, you might say. Here's a quote: “Respectable populists are [...] tainted because they share the p-word with abhorrent populists.” I feel like from that quote, it would be safe to say that your argument assumes as given that there’s a form of respectable populism, what would be the characteristics of respectable populism?

Yes, so I think there's an analytical harm and a political harm. The analytical harm, as you say, is that when you're talking about a lot of different things and give them the same name it sometimes obscures more than it clarifies. The political harm, as you say, is that legitimates this by calling all of this populism, it's legitimating that populism and delegitimating good populism. I think what unbundled populism could be, and wouldn't be such a bad thing if it were, is a serious engagement with the ways in which our political system gives too much power to too few people. And you can really take that argument seriously across a lot of domains in society, not just who gets elected to office, but who gets nominated to the supreme court, who controls business. There are a lot of ways in which our society has too much power held by too few. You can be deeply anti-establishment without being authoritarian or bigoted. And the problem with the way things work is that we join those all together and we fail to see that.

In your piece, you assign figures like President Trump and France’s Marine La Pen to this strain of unpalatable, illegitimate populism—you think they shouldn’t be dignified with the ideological label of populist. Who would you cite as legitimate populist figures contemporary or historical? Someone who doesn’t engage with this bundled populism?

I don't know that I have an argument about what the true irreducible doctrine of populism is and therefore who can claim it. I don't have an argument about what populism is, my argument is that they aren't all the same thing. It might be that Trump is populist, it might be that he's very much not a populist, I just think that these are very different things and lumping them together is the problem. I don't who the best populist is, who's the most authentic populist—I just know these ways of arguing about politics are really different, and by conflating them it's causing a lot of the problems that we're having. To define a word, I don't have a better way of doing that than other people.

So one of the elements of populism you lament for being co-opted by bundled populists is a brand of campaigning that you characterize as accessible and emotionally-resonant. You mention, for example, President Trump’s use of plain, relatable language, and his Twitter use, as indicative of this populist element that’s tainted, obviously, by what you describe as his “bigotry”? Did I understand that correctly? You’re saying that this type of public outreach has the potential to be a positive element of unbundled populism?

Yes, we can think of populism as having stylistic and substantive dimensions right? A stylistic element of populism might be simplifying arguments to make them more broadly comprehensible and appealing. And yes, I do think there are many ways in which it's good to simplify arguments, even about complicated topics—scientific topics like global warming; to simplify the argument so that lots of people can understand and engage with it. It is often a problem in our democracy, and in other democracies in the western world, that politics is made too incomprehensible. There's a way of understanding politics that's social scientific, and that's a helpful perspective, but we don't want the technical to override the comprehensible. So I do think there are features of substantive populism that are desirable, there are also stylistic features that are desirable. There are also features that are undesirable. Sometimes, to appeal to a lot of people, you make the lowest, crudest argument. Sometimes to appeal to a lot of people you simplify an argument, but you don't appeal to our basest desires. It's not always good or always bad, but it’s a feature of populism that can be a style as well as a substance.

That's related to my follow up question: it's undoubtedly the case that that stylistic choice is helpful in attracting a strong, energized middle and lower-class base. I was going to ask you if you thought it was ethically sound, even when stripped of the authoritarian and xenophobic components. I ask because you look at a statistic that says something like only 20 states currently require students to take a high school course in economics. The issues that candidates are running on, the policies they want to effectuate, they're very complex. Meanwhile, large swaths of the public are largely uninformed of basic economic ideas. I know you said there's bad and there's good but do you think there really is a way one can implement that stylistic strategy in an egalitarian way without flirting with politics as entertainment, the kind of thing that’s ripe for abuse and manipulation?

I don't think any style is all good or all bad, but independent of what it means for populism, I do think that sometimes political argument, particularly in higher-brow places like leading newspapers, the New York Times and Wall Street Journal for example, that sometimes arguments made by those in power can be incomprehensible to those out of power. Any argument worth making in a democracy, it might be worth making technically, but in addition, it's worth making comprehensibly—they're not mutually exclusive, they're complimentary. Sometimes we focus on the technicality to the exclusion of simplicity.

One of the components of bundled populism you mention was really interesting to me, you talk about the problems of perceived homogeneity, this in-group out-group politics. Could you go into detail on what you were getting at?

One definition of populism you see, particularly in the academic literature, it's not just pitting people against the elite, but that it’s saying the people are perfect and the elite are horrible. The people have no flaws and the elite are completely flawed. While some people might be making that argument I don't know that that's definitially part of what populism has to be. You could say that one group doesn't have as much power as they should, and yet you don't have to think that group is perfect.

I really enjoyed this quote: "If there are only two groups and only one is morally legitimate (that is, the "people") then only one should rule, and the other group need not be protected” (Fontana, 1495). It sounds like what you're saying is that this ideology is high risk when it comes to the rights of minorities, is that right?

Those arguments are out there. There are people who say that only some groups count as "the people" and they're awesome and that those in power are horrible, and it's not that people don't make the argument. But you don't need to make an argument that the people are perfect and the elite are all bad to think that the people don't have enough power relative to the elite.

You mention the founders in your piece as well and the hedges they placed against oligarchy and excess power in the hands of elites. From what I've gathered about the founders, they were also wary of the tyranny of the majority that could potentially violate the rights of minorities, racial, religious, ideological or otherwise. How do you think an ideal form of populism would go about avoiding that scenario?

I don't know how to design the perfect society, but I think it is important to remember that the founders like you said, were very democratic but they were also very skeptical of democracy too. They went further in the direction of democracy than almost any society had gone at that point, but they didn't go anywhere as far as we've gone by the year 2018. It was a society dominated, in terms of who served and who voted for who served, by rich, white, male property owners. So even the fact that all of them had gone farther than people had ever gone, think of how much farther you still could go. I don't know what the perfect political system would be, but they certainly didn't think it was purely democratic. There's no referendum or initiative mentioned, there's the Senate, there's judicial review, there are all sorts of things that deny majority the power to govern.

Why do you think the words we use to describe ideologies are so important?

I think they legitimize or delegitimize arguments. Labels matter, labels signal whether something is on the wall or off the wall. Just by the word that we use to describe something, we decide whether we should take it seriously as an ideology or not. This is not just an effort in linguistics, this is an effort in legitimizing or delegitimizing major political arguments and movements.