Letting Go of Faith in Constitutionalism

Guest Blogger

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

Colm O’Cinneide, UCL

Introduction - Keeping the Constitutional Flame?

On the very first page of Constitutionalism and its Discontents, Mark Tushnet and Bojan Bugaric provide a wonderfully succinct summary of constitutionalism’s current ‘discontents’. Across the democratic world, constitutional controls are crumbling, exposed as lacking in effectiveness, and/or becoming the focus of sustained and divisive political controversy. As Mark and Bojan point this, the latter is a particularly corrosive problem: ‘it runs up against one of the hopes held out by constitutionalism’s proponents, that it provides a neutral framework for the resolution of partisan conflicts’ (p. 1). In general, the constitutionalist cart seems to be overloaded: courts and other guarantor institutions are constantly accused of both over- and under-reaching, even as their authority is increasingly contested.

And yet faith in constitutionalism persists. If anything, it tends to be professed with extra vigour and devotion. We hear calls all the time for renewed fidelity to rule of law, separation of powers and other core constitutional principles - and for associated mechanisms such as judicial review to be reinforced and strengthened in the face of Trumpism, Orbanism etc. (The USA is perhaps something of an outlier here: looking in from the outside, the Supreme Court’s legitimacy crisis seems to have dampened faith in constitutionalism to a degree that is (yet?) to be matched elsewhere in the democratic world.)

Is this devotion justified? Is the solution to the crisis of constitutionalism really to double down on constitutionalism? Mark and Bojan say no. They have come to cast cold water on the fervour of the constitutionally devout; to demonstrate the hollowness of constitutional doctrine and the infeasibility of the hopes invested in it; and to disenchant the true believers. Revivalism, like that offered up in recent work by Fishkin and Forbath, does not interest them. Instead, they argue that we should abandon belief in the virtues of embedded constitutionalism - and liberate political contestation from the dead hand of democracy-constraining constitutionalist legalism.

Constitutionalism and its Discontents adds another entry to this gradually accumulating charge sheet. However, it stands out in several ways. First of all, it is written with real style, concision and verve – making it a pleasure to read. Secondly, it uses comparative evidence from a wide range of jurisdictions to build up its core arguments in pointillist fashion, instead of just relying on broad normative brush strokes (although they play a significant role at various stages of the analysis). Thirdly, it takes the supranational dimension to constitutional governance seriously, making particular reference to ‘programmatic’ aspects of EU constitutionalism – something that is often awkwardly ignored or glossed over in academic argumentation that has a similar ‘political constitutionalist’ stamp, which has a tendency to stick its metaphorical fingers in its ears and refuse to engage with the necessary complexity of supranational governance structures like the EU.[1] Fourthly, it critiques constitutionalism in terms of its own professed aims and ambitions, in particular the aspiration to protect democracy from abusive political overreach -  and shows that it is struggling to deliver.

The Case for Constitutional Disenchantment

Mark and Bojan’s arguments particularly resonate when they discuss what they call the ‘paradox of constitutionalism’, i.e. how it ‘aims to both empower democratic self-governance and limit the exercises of that power’ (p. 2). As they note, this is an inherently slippery and unstable ambition. It ensures that courts are constantly forced to navigate between the twin perils of judicial over-reach and judicial self-abnegation. It exposes them to the charge of being anti-democratic. It can stoke popular discontent, by limiting how governments can respond to shifts in public opinion. And all this can expose courts to political pressure, while also incentivising governments to find a way around such controls by e.g. manipulating the judicial appointments process.

The authors back up this structural analysis with a comparative analysis of how these tensions play out in the context of (i) general controls on executive power; (i) the application of ‘programmatic’ controls on the trajectory of national economic policy; and (iii) attempts to use constitutionalist tools to tackle the problem of ‘democratic decay’. This latter part of their analysis – developed in Part III of the book – is particularly well done. Drawing on evidence from the US, Hungary and elsewhere, Mark and Bojan suggest that constitutional responses to genuine authoritarian threats often suffer from a ‘Goldilocks’ problem: constitutional courts tend to be unsure when they should intervene to combat such threats, and end up waiting for a ‘just right’ moment which never comes until autocratic capture is complete. They also suggest attempts to deploy constitutionalism against populist parties often seem to be motivated by a vague and inchoate ‘liberalism of anxiety’, rather than a genuine desire to push back against fundamental threats to democracy and human rights. And they highlight how the invocation of constitutionalism as a buffer against populism often discredits it in the eyes of substantial chunks of the citizenry.

No Salvation in Constitutionalism

Some evidence offered up by Mark and Bojan in support of this analysis can be contested, or nuanced. For example, courts in some states have played an effective role in conjunction with other legal and political actors in shoring up democratic resilience, without alienating popular majorities – with e.g. Italy offering up an interesting case study in this regard. And, while the book’s discussion of programmatic controls in the context of EU constitutionalism is highly impressive, I am not convinced that it sets out a comprehensive indictment of such controls more generally. (Indeed, if anything, I would argue that the EU experience shows that it is possible to combine programmatic controls with democratic input. But this is perhaps a discussion for another day.)

These quibbles aside, I find Mark and Bojan’s diagnosis to be broadly convincing. Constitutionalism is prone to oscillating between over-rigidity and over-permissiveness: between being too controlling and too accommodating of political power, both in terms of public perception and the reality of public governance. By extension, it struggles to deliver on its own promises, i.e. to protect minorities, limit executive over-reach and the like, while also satisfying critics of judicial over-reach. And this inherent instability is contributing to the erosion of public confidence in the functioning of liberal democratic states.

But No Salvation in Majoritarianism Either

However, if constitutionalism will not save us, to paraphrase Mark and Bojan – if the Emperor turns out to be not wearing very many clothes at all, so to speak - then should we abjure our constitutionalist faith and seek salvation in other doctrines? This is what Mark and Bojan suggest, while acknowledging that different responses may be appropriate in different states depending on context.

More specifically, they argue that we should ‘scale back our expectations’ in relation to constitutional form and process. Instead, we should embrace mostly procedural and ‘thin’ approach to constitutionalism - whose provisions can be amended or displaced through standard legislative procedures, if ‘after reflection and serious political contestation’ (p. 27) they are deemed to be dispensable. In other words, Mark and Bojan recommend that we consider ditching the idea that constitutions should be treated as sacred text, and replace it with faith in the integrity and sufficiency of the political process as channelled through the electoral system.

Now, this is where I begin to part ways with Mark and Bojan’s analysis. Or at least to wonder whether their cold-eyed disenchantment with constitutionalism gives way to an overly idealised view of the dynamics of party political contestation as it plays out within the atomised conditions of modern life.  

The book acknowledges that campaign financing and donor interests exert a huge influence over political agendas, and that political parties have in general lost the mass popular base they once enjoyed in the post-1945 period.[2] However, in the final chapter Mark and Bojan offer suggestions as to how these flaws can be partially remedied, by electoral law reform, greater use of citizen assemblies and other incremental adjustments to the status quo. And they make the case that party political contestation remains the most authentically democratic route through which majority will formation takes place – while also being sufficiently competitive, ‘reflective’ and robust as to minimise the possibility that governing parties will take abusive advantage of an easily revisable ‘thin’ constitutional framework.

However, I do not share their idealism. First of all, the political process in most liberal democracies is increasingly lacking in ‘reflectiveness’, being replaced by eyeball-attracting rhetoric and targeted appeals to particular special interests or demographic segments. Secondly, increasingly large segments of the population are not well represented – especially non-citizens and the socially marginalised, who also happen to be the groups most vulnerable to abuse of government power. And then there is the clear evidence, building day by day, that big chunks of the electorate in many different democracies are not especially motivated by concern to maintain basic rights protection, or meaningful cross-branch constitutional ‘collaboration’, or to punish corruption – making it less likely that changes to constitutional ground rules will attract the sort of ‘serious political contestation’ that Mark and Bojan would favour before they are adjusted to suit the political agenda of a ruling party.[3]

Constitutional Tempering

There is also a wider problem here. Mark and Bojan passionately argue for the establishment of a true ‘constitution of equals’, which should preclude the legal elitism associated with embedded constitutionalism. But as Roberto Gargarella has recently pointed out, the concept of a ‘constitution of equals’ could be viewed as having three pillars: public debate, social inclusion, and ‘common equality’, i.e. a commitment to ensuring certain structural conditions are in place to facilitate equal democratic participation. And, for all its many flaws, contradictions and inadequacies, the idea of constitutionalism as it has evolved over the last 150 years or so makes room for this wider commitment, which extends beyond the formal equality of the franchise.

Now, Mark and Bojan are right to question whether embedded constitutionalism in its various facets is delivering on this commitment. But there are grounds to be concerned that treating majoritarian views as the sole and ultimate determinant of what should qualify as a core constitutional norm may result in this wider, more structural concept of democratic equality being lost in political churn. Especially at the current moment, when political parties committed to magnifying social exclusion on race and religious grounds are thriving at the ballot box.

I should emphasise this is not an argument for clinging to the constitutionalist faith as currently preached, or investing futile hope in judicial review and other mechanisms. However it is a reason to be wary of making majoritarian will the sole reference point for defining what we consider to be constitutional behaviour – both as a matter of legal interpretation and in political debates. Various institutional methods can be used to bring justificatory pressure to bear on elected governments invoking the popular will to do constitutionally controversial things: ordinary legislation, fourth branch bodies, international law norms and political accountability mechanisms all have a role to play in this regard. The final say on a disputed issue might remain with the legislative majority – but at least a legal and political contestatory space should exist, making it possible to distinguish the concept of what is ‘constitutional’ from the concept of the ‘popular will’. And we should be aware of the threat of democratic monism, i.e. the danger that all aspects of state functioning will be expected to fall into line with current government policy, including human rights and anti-discrimination law controls that are expressly designed to operate with a robust degree of autonomy in this regard.

The British constitution is sometimes cited as a functioning model of the type of majoritarian-based political constitution favoured by Mark and Bojan. However, during what are widely regarded to be the golden years of this constitutional model, i.e. in the democratising post-1945 period, there was a reasonably robust sense of shared constitutional values and the need to avoid democratic monism. It was not a perfect system: for example, it failed utterly to handle the deep political, religious and socio-economic divides of Northern Irish society. But the concept of the ‘constitutional’ exercised a tempering effect on majority will. Now, in the UK, we see majoritarian will increasingly invoked to justify more and more extreme measures directed against migrants, environmental protestors and other unpopular groups – and tempering mechanisms such as the Human Rights Act 1998 coming under constant attack, precisely because they limit political freedom of action.

Now, once again, none of this invalidates Mark and Bojan’s scorching dissection of constitutionalism and its many discontents. But it perhaps does suggest that some scepticism is also warranted when it comes to faith in the dynaimcs of party political contestation. It would have been interesting to hear more from Mark and Bojan about where ‘weaker’ forms of constitutional tempering fit within their vision of democracy freed from the rigid structures of embedded constitutionalism. It would also have been interesting to see more discussion of the extent to which constitutionalism is a necessary element of any serious supranational socio-economic integration project, such as the EU – and how much political/majoritarian choice can be infused within such mechanisms, given the need for sustained cross-national cohesion over time. But that is all potential material for a sequel, if Mark and Bojan choose to treat us with another book as rich, incisive and thought-provoking as this one.  

Conclusion – Political Ids and Constitutional Superegos

Drawing this overly long blogpost to a close, it is good to return to the discontents of constitutionalism as dissected by this masterful book. Mark and Bojan are right to argue that the constitutional faith cannot deliver the redemption it promises, and thus we should view the reality of its functioning with a sceptical and disenchanted eye. However, they go on to argue (citing Freud) that jettisoning this faith and embracing another gospel - trust in political contestation - will help us convert the misery of our present constitutional discontents into a less pressing ‘ordinary unhappiness’. In response, I think they should also cast more of a cold eye on this alternative faith and the alleviatory promises it makes.  

More specifically, picking up their Freudian theme, I think Mark and Bojan are too quick to overlook the problems of the political id, as shaped, structured and expressed in our contemporary liberal democratic societies, and how this is intimately bound up with the all-consuming nature of the political ego. My sense is that some element of constitutionalist superego is still needed, if reconfigured and deployed with suitable care and modesty of ambition. However, even my points of disagreement should be read as reflecting deep admiration for the tensile strength of Mark and Bojan’s argumentation - and the fundamental challenge it poses to believers in the constitutional creed.

Colm O’Cinneide is Professor of Constitutional and Human Rights Law at University College London (UCL). He is contactable at c.o’cinneide@ucl.ac.uk or uctlcoc@ucl.ac.uk.