Constitutionalism and Its Discontents: A Comparativist’s Take

Guest Blogger

For the Balkinization on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (Oxford University Press, 2026).

Sabrina Ragone

There is much to admire in Mark Tushnet and Bojan Bugaric’s Constitutionalism and Its Discontents, beginning with the ambition and provocation reflected in its title.

The book revolves around a fundamental paradox: constitutionalism seeks simultaneously to empower democratic self-government and to constrain the exercise of that very power. The three parts explore different manifestations of this tension: through the rules of ruling in Part One; through programmatic constitutionalism in Part Two, where the European Union and its economic constitution provide an example of how constitutional commitments intended to enable collective projects may themselves become constraints to democratic choices; and, in Part Three, through efforts to forestall or combat democratic decline, eventually shifting the focus from constitutional design to political parties and the political conditions on which democratic constitutionalism depends.

The paradox is further complicated by a recurring insight of the book: constitutional remedies aimed at addressing one source of discontent may end up exacerbating another. The breadth of the inquiry is one of the book’s strengths, together with the plethora of concrete examples and imaginary situations, which make even complex theoretical arguments accessible and the book enjoyable to read; perhaps precisely for this reason, it also leaves the reader wanting more, as several of the questions it opens would themselves deserve fuller exploration.

The first part of the volume brings together different strands of dissatisfaction with constitutionalism, from Loughlin’s Against Constitutionalism to Moyn and Doerfler’s critique to the idea of “reclaiming” the US Constitution, up to Gargarella’s conception of law as a “conversation among equals”. Interestingly, these positions emerge from different constitutional traditions, and also reflect distinct historical, procedural, and substantive foundations. In fact, Loughlin writes from a British tradition historically shaped by parliamentary sovereignty and by the absence of a kind of rigid, entrenched constitution that is core to the American debate. Moyn and Doerfler have to grapple with an extraordinarily old and de facto exceptionally rigid constitution. Gargarella’s perspective, in turn, traces contemporary problems back to historically embedded dynamics of power and exclusion in Latin America. Their convergence in expressing dissatisfaction with constitutionalism is even more significant, while it also raises the question of whether they are ultimately discontented with the same thing.

Chapter 2 engages with the idea to treat constitutions as ordinary statutes: binding law while in force, but alterable by ordinary majorities (p. 17). For a comparativist, this recalls the classical distinction between rigid and flexible constitutions, although the proposal seems to go further, questioning the special procedural status of the rules about ruling themselves. Still, also “thin” constitutions offer several downsides (p. 24 ff.), as they may be directly exploited by proto-autocrats; encourage “juristocracy”, as courts acquire an increasingly prominent role in providing content to the norms; and they may contribute to the construction of what Kim Lane Scheppele calls a “Frankenstate”, in which individually legitimate constitutional mechanisms are combined in ways that produce an increasingly illiberal whole.

Yet I am less certain that comparative experience points clearly towards treating constitutions like ordinary statutes. The picture becomes particularly complex if we consider constitutional amendments and their judicial review, an area to which I have devoted a substantial part of my research. Comparative constitutional systems differ not only in their level of rigidity, but also in the institutions, procedures, and substantive limitations of constitutional change. Judicial review of constitutional amendments exposes the paradox particularly clearly. On the one hand, allowing a court to invalidate a change adopted by a constitutionally qualified majority might appear as an extreme form of constitutional constraint and perhaps the epitome of the juristocracy the authors warn against. On the other hand, recent examples of democratic erosion show that constitutional amendments can be used by governing majorities to alter the rules of political competition while formally complying with constitutional procedures.

Review of constitutional amendments can be understood, at the same time, as the ultimate form of judicial constraint on democratic self-government and as a safeguard of the conditions that make democratic self-government possible. To be clear: such review does not necessarily solve the problem. My own examination has shown the extraordinary law-making power it can place in the hands of courts, particularly when they are called upon to identify substantive limits to constitutional change. And the “Frankenstate” insight is relevant as well in this respect: measures that are individually compatible with democratic constitutionalism may, when combined, result in democratic erosion. Comparison may therefore support the authors’ skepticism towards entrenchment without necessarily leading to the conclusion that constitutions should be equated with ordinary statutes.

Chapter 3 shows that structural constraints do not necessarily reduce public power and may, under certain conditions, end up enhancing it. Particularly interesting is the authors’ own consideration that the Supreme Court’s intuitions may make sense under contemporary circumstances even if they do not hold as a matter of general theory. Such recognition of the importance of context shall be extended comparatively: institutional arrangements that constrain or empower in one specific, time-determined constitutional setting may produce different effects in another. Comparison thus adds a spatial dimension to the temporal and political contextualization present in the chapter, proving a fortiori that constitutional design cannot be assessed independently of the institutional environment. The following Chapter further reinforces the importance of context through the abovementioned idea of constitutions as “conversations among equals” (p. 47 ff.). However, who the participants are (and whether they can actually be regarded as equals) very much depends on institutional and social settings. Forms of government, territorial decentralization, allocation of constitutional authority determine both the participants and their relative power. Comparison thus invites scholars, and citizens, to distinguish between formal equality in constitutional conversations and the actual capacity to participate on equal terms and eventually shape their outcomes.

Part Two raises a different comparative question, concerning the very use of constitutionalism beyond the State. The EU economic constitution certainly performs constitutional functions, but it does so in a multilayered system that continues to depend substantially on its Member States. The empowerment/constraint paradox acquires a different meaning when constitutional authority is distributed across interconnected legal orders rather than located within a single polity. Also, the uniformizing effect of supranational norms does not necessarily lead to significant convergence. Domestic constitutional effects often remain differentiated because they are mediated by national institutions, political cultures, and administrative structures. Ultimately, the recurrent crises the EU has been subject to, do not merely test the European constitutional framework: they transform it, with effects that vary across domestic constitutional systems, as I have addressed with respect to the Eurozone and the refugee crises.

The importance of context is clear also in Part Three, as the focus shifts to democratic decline and the capacity of constitutional arrangements to counter it. Chapter 8 is revealing in this respect. The institutional strategies available to opponents of proto-autocrats (like litigation before courts, action by independent prosecutors, mechanisms such as impeachment, alongside mobilization by civil society) rely on access to the very institutions that proto-autocrats progressively seek to weaken or capture. Their effectiveness is therefore inherently context-dependent: it varies based on the institutional resources still available to the opposition and the broader political and constitutional configuration in which they operate.

This also qualifies, rather than contradicts, the skepticism towards constitutional design developed subsequently. In fact, constitutional design rarely matters in isolation. Similar institutional arrangements can produce very different effects depending on their interaction with party systems, political practices, and other constitutional institutions. The search for universally resilient constitutional designs is a false promise, as they are inherently context-dependent.

Chapter 10 offers the authors’ prescription (p. 154): strengthening both party leadership and the “party-in-the-electorate,” while recognizing that each remedy carries its own risks. The proposed reforms thus reproduce, at the level of party organization, the broader paradox running through the book: addressing one democratic discontent may generate another. Personally, I would broaden the prescription by placing even greater emphasis on civic education and the conditions for access to reliable political information, which seem equally important in strengthening meaningful democratic participation, especially in times of polarization, increasing relevance of social media, post-truth and “politainment”.

Three broader reflections emerge from my reading of the book. First, comparison complicates classical oppositions, as dichotomies like law and politics, courts and legislatures, empowerment and constraints are configured differently across constitutional systems. Second, comparison makes context integral to constitutional assessment: institutions and solutions cannot be evaluated independently of the legal, political, and cultural settings in which they operate. Ultimately, seen comparatively, the tension addressed in the volume becomes even more complex. And this is perhaps one of the main merits of Constitutionalism and Its Discontents: its underlying paradox invites us to keep questioning what we expect constitutionalism to do, and what it can realistically deliver.