Dieter Grimm, in a recent text, has explicitly connected the Weimar-era Schmitt–Kelsen dispute on the guardian of the constitution to contemporary debates on popular and populist constitutionalism, framing the question of the nature of the constitution and constitutional adjudication under the dyadic alternative: Recht oder Politik? (law or politics). In this lecture, I will take this connection seriously and develop it, showing how some fundamental issues underlying the problem of constitutional guardianship persist in the context of contemporary constitutional democracy, while also marking the differences introduced by the evolution of theory and by specific political and legal systems. Taking some relevant problems emerging from the very broad field of political understandings of the constitution (including, in the strict sense, political constitutionalism, as well as populist and popular constitutionalism) allows us to explore the never-ending tensions in the relationship between constitutionalism and democracy, the limits and constraints on majoritarian power, and the relevance of popular self-government to the legitimacy of constitutional orders. Different positions and justificatory theories of political or legal constitutionalism will emerge, and with them different hypotheses about the guardianship of the constitution.

Alessandro Volpi is a scholar working at the intersection of political and legal philosophy. He has a PhD in Legal Studies from the University of Salerno in 2024, and subsequently held a fellowship at the Istituto Italiano per gli Studi Filosofici in Naples. He has also been a visiting scholar at the Institute for Interdisciplinary Legal Studies at the University of Lucerne, and at the Max Planck Institute for the Study of Crime, Security and Law in Freiburg. His recent work focuses on the relationship between populism and constitutionalism, and he has published articles in Italian, English, and Spanish. His latest essay, ‘The Return of Popular Sovereignty: Populism and the Tensions of Constitutional Democracy’, recently appeared in the journal Jus Cogens: Philosophy and Critique. His first monograph, titled Ontologia decisionista. Ernesto Laclau e la tradizione politico-giuridica moderna, is forthcoming with the Italian publisher Mimesis.