Constitutional Law and “Common Sense” Gun and Drug Regulation

David Pozen

For the Supreme Court Review, Joseph Blocher and I have a new paper that diagnoses a mismatch between the growing scholarly consensus on gun and drug regulation (generally favoring pragmatic approaches focused on reducing harms) and the constitutional rights doctrine on these subjects (generally either maximalist or minimalist). The Court’s most recent Second Amendment decisions are the point of departure. Here is the abstract for The Excluded Middle of Law: Constitutional Drivers of Extremism in Gun and Drug Policy, a draft of which is now up on SSRN:

American drug and gun regulation is difficult to defend from almost any perspective. Federal and state laws heap criminal penalties on a small subset of users, burden many others whose possession poses no direct threat to third parties, and yet fail to prevent staggering social harms. To address these pathologies, a long line of scholars and advocates has called for something in between punitive prohibitionism and laissez-faire capitalism: grudging toleration, harm reduction, liberty balancing, community-based alternatives, and so on. Among the forces pushing policy away from these pragmatic approaches, however, is U.S. constitutional doctrine.

Using the Supreme Court’s decisions in United States v. Hemani and Wolford v. Lopez as a jumping-off point, this Article explores the role of constitutional law in driving drug and gun policy to the extremes. Hemani holds out hope for limited forms of pragmatism to sneak into Second Amendment analysis through the side door. But in nearly inverse ways, the Article argues, the Court’s jurisprudence has complicated efforts in both fields to reach a more effective and humane regulatory middle ground.

Constitutionalism and Its Contents

Guest Blogger

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.

Our Unconstitutional Reapportionment Process

Gerard N. Magliocca

One irony about the new proposed list of census questions for 2030 is that the only question that may be constitutionally required as an original matter is not included. That question would ask Americans for information pertaining to Section 2 of the Fourteenth Amendment. As I laid in out in a paper published before the 2020 census, our current apportionment process is unconstitutional. Maybe this time around one or more states will raise that claim at the census stage or following the next reapportionment.

Discontent with Constitutionalism and Its Discontents

Guest Blogger

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

Martin Loughlin

My thoughts on Constitutionalism and Its Discontents, the latest publication from Professors Tushnet and Bugaric, must be situated in the context of their earlier book, Power to the People. That book, I argued in Balkinization, had failed to give a cogent answer to the basic question it sought to address, namely, whether populism is inconsistent with constitutionalism. And the reason was that the authors had not provided a clear statement of what those two key terms mean. With respect to constitutionalism, they sought to avoid controversy by presenting what they called a ‘thin’ account which could operate as ‘a least common denominator’. But this account, I suggested, was not only as contentious as so-called ‘thick’ accounts; it was also skewed in such a way that it would not be accepted by constitutionalism’s most fervent advocates. Their thin account could not differentiate between those who adhere to constitutionalism, those who reject constitutionalism but uphold constitutional democracy, and those who merely acknowledge the value of constitutional government.

In their response, the authors failed to engage with this issue other than indicating that my understanding of constitutionalism was not suitable for their purpose. Since the point I was making preceded the publication of my book, Against Constitutionalism, that seemed fair enough, because only in that book was I able to make out the case that throughout the modern era constitutionalism has carried a clear and widely understood meaning. It is, I argued, a liberal theory advocating the need for the written constitution to include a particular set of institutional arrangements that could restrain the power of majorities and set in place a scheme of limited government so that individual liberty might flourish. Distilling its elements, I proposed that the theory asserted that the written constitution should accord with six basic precepts: it establishes (1) a comprehensive scheme of (2) representative government and (3) differentiated powers, which is conceived (4) as having established a permanent framework that takes effect (5) as fundamental law, and which ultimately leads to the constitution being treated as the expression of a regime’s (6) collective political identity.

Constitutionalism's Contemporary Critics

Sandy Levinson

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

For some years, the American legal academy has shared two basic presuppositions.  The first is that the United States Constitution basically constitutes American identity as well as establishing a particular political system. This means, among other things, that is that their most important task is to search for the uniquely correct theory of interpreting the national Constitution (and therefore, what it means to be “an American”).  I have praised Jack Balkin's Living Originalism as not only the best book written on American "constitutional interpretation," but also, I hoped, the last book that would in fact be published on the subject.  Alas, that has not been the case. If anything, the “interpretation wars” have only become more intense, given the insistence of a majority of the Supreme Court, in good faith or not, on “originalism” as the royal road to understanding the Constitution.is that their most important task is to search for the uniquely correct theory of interpreting the national Constitution. 

But a second presupposition, is that the Constitution is worthy of great praise, indeed, an empirical cause for much of what has gone right for the United States over the past 239 years.  The Founders are often praised as brilliant architects of an effective system.  This entails for many the belief that “constitutional design” is itself a crucial topic, especially in the post-World War II era when most countries, with the glaring exception of the United States, were engaged in significant efforts at what might be called “transformations” of their foundational documents or, in the case of “post-colonial” countries, drafting brand new constitutions. 

However, we are now seeing a somewhat different development within a wing of the legal academy.  Consider the strikingly titled Against Constitutionialism, published in 2022 by Martin Loughlin, now an emeritus professor at the London School of Economics.  The key syllable is the final one, the "ism."  For Loughlin argued that contemporary constitutions have been cluttered up with too many provisions.  That is, they are poorly designed, in part because the clutter entails, practically speaking, that their "interpretation" became the province of judges who in turn imposed their own understandings of inevitably controversial--and what participants in the interpretation wars often called "indeterminate"--clauses.  Loughlin accepted the desirability of minimal  constitutions that might, for example, only set out who actually was authorized to make (and thus coerce others through) laws, how they would be selected, and how long they could remain in office.  Otherwise, constitutions would be quite silent on what precisely they could or could not do.  Those decisions would be left up to ordinary politics.  The remedy for legislation one did not like would presumably be "voting the rascals out" at the next election, not racing off to the courthouse looking for judicial disapproval of actions taken.  Down this latter road lay what the late Ran Hirschl memorably termed "juristocracy," evoking overtones of both “aristocracy” and “autocracy” (and definitely not “democracy”).

Now come Mark Tushnet and Bojan Bugaric, who, like Loughlin, valorize ordinary politics as the method of resolving fundamental disputes in a complex society.  To the extent that more complex constitutions are important at all, as opposed to creating what Mark Tushnet once described as simply “noise” of relatively little importance, they are at least as likely to be detrimental as positive, especially if positivity is linked with “progressive” politics.  To the extent that constitutions are attempts to take certain issues "off the table" as impervious to ordinary politics, the authors are skeptical, if not outright hostile.  Constitutionalism and Its Discontents suggests, with acknowledgment to Sigmund Freud, that constitutions and “constitutional interpretation" may more be neuroses to be overcome than a genuine solution for our problems.  We should, the authors suggest, “scal[e] back our expectations for constitutionalism," which "might reduce some of our discontents.  Doing so, though won't eliminate" them. "The most we can hope for, and it is no small thing, is to replace deep discontent with moderate anxiety.”  Freud would presumably approve their “hope to replace 'misery [with] common unhappiness'" (p. 155).  Still, they do see a role for constitutions, even if they might be viewed as allies of Loughlin in cautioning us against fetishizing them and turning them as "isms." 

One of Tushnet's many previous books, Taking the Constitution Away from the Courts, can be read as a defense of what has come to be called "popular constitutionalism" as against what I have termed the "constitutional catholicism" articulated perhaps most memorably in the joint opinion of Justices Kennedy, O’Connor, and Souter now more than three decades ago in the Casey case reaffirming (at least a version) of Roe v. Wade.  Judges, they said, had a duty to issue (and then to respect) binding edicts; citizens in turn had a duty to accept their status as binding.  However, "protestant constitutionalism" rejects such a role by judges (and duty by obedient citizens). It is analogous to the radical dissenters who posited the "priesthood of all believers." Anyone within the spiritual community is entitled to read the relevant materials and to come to their own conclusions as to their meaning.  Indeed, a previous book by these two coauthors, Power to the People:  Constitutionalism in the Age of Populism, was an explicit critique of the attack on “populism” leveled by many members of the legal academy and political theorists. 

But "popular constitutionalism" is congruent with the notion that the central task of the participant is interpreting what are in fact complicated sacred texts.  So even “popular constitutionalism” plays on the notion that the Constitution provides a source of what a speaker might hope to serve as knock-down arguments against opponents.  "What part of 'equal protection' do you not understand?!  "'No law' means 'no law,' damn it!"  And so on.   “Minimal constitutionalism,” on the other hand, leaves relatively little to argue about.  Thus, for example, there is no real debate about the “meaning” of the clause setting out the terms of national office.  The length of the American presidential term is “obviously” four years—just read Article II.  One can debate vigorously about the wisdom of this provision, but that very different topic from debating its “meaning.”

Still, for better or worse, institutional courts do play special roles in almost all political systems.  One message of the two World Wars, especially for Europeans, was the importance not only of canonical written constitutions, but also the desirability of creating what were commonly called "constitutional courts" to serve as guardians of these constitutions.  To be sure, that was not universal.  The Netherlands rejected the idea of American-style judicial review, but they were the exception to what became a general rule.  That is part of the "ism" that Loughlin criticizes.  

Tushnet and Bugaric set out their thesis very early on:  "The argument of the book as a whole is that constitutionalism is beset by the paradox that it aims to both empower democratic self-government and limit the exercise of that power" (p. 3).  That is, "liberal constitutionalism" especially is grounded on a fear of governmental excess, leading directly to the traditional identification of constitutionalism with "limited government."  Almost by definition, this places limits on what democratic majorities might wish to accomplish.  But Tushnet and Bugaric recognize as well that many contemporary constitutionalists, almost always, as they are themselves, on the left, wish not only to “limit” potential mischief, but also also to make constitutions "programmatic" by requiring certain programs.  Thus almost all constitutions drafted after World War II include provisions ostensibly requiring the state to supply certain goods and services, including education, health, access to jobs, or, more recently, a clean and healthy environment.  One source of popular dissatisfaction is often the patent failure of actual political systems to live up to these apparent aspirations, in part, of course, because of the very limitations placed on the practical ability of government to act.  What is striking is the skepticism that Tushnet and Bugaric express both about limitations and requirements.  At very outset they tell their readers, "[W]e shouldn’t place too much hope in constitutional design as a method for dealing with the ever-present risk of democratic decline" (p. 3). 

 Tushnet is, with Mark Graber, Antonia Baraggia, and myself, the co-editor of what, come next year, will be the second of two books published by the Oxford University Press under the title "Constitutional Democracy in Crisis?" Essays assess contemporary developments on all continents save Antarctica.  Even if some of the three-dozen essays offer a critique of the "chicken-little" mentality and suggest that perhaps we're only going through a relatively predictable cycle of democratic ebbs after some significant flows following, say, the demise of the Soviet Union or the end of apartheid in South Africa, the overall tone of the book is quite somber.  And, if one does fear that constitutional democracy is undergoing a significant crisis, defined by doctors as the moment when a patient will possibly die should the fever not break or some organ start working again, then the question becomes Lenin's from long ago:  What is to be done?  No one, these authors tell us, should look to constitutional forms or to judges to save us. 

"The alternative to constitutionalism"--again the "ism" is crucial--"is a vigorous democratic politics in which a wide range of value positions--including values rooted in a nation’s constitution---and an equally wide range of policy positions contend for support by a majority." (p. 5). Democratic elections should have consequences, which is often not the case in the United States given the multitude of "checks and balances" and “veto points” standing in the way of genuinely democratic empowerment.  To be sure, the losers will often be unhappy about these consequences, sometimes very unhappy.  But the answer, in the words of Joe Hill a century ago, is "Don't Mourn [or race off to the courthouse].  Organize!”   Perhaps barroom arguments can still occur about the meanings of the genuinely inspiring aspirations set out in the Preamble to the Constitution.  But no one should think that these are anything other than invitations to intense and perhaps acrimonious conversations.  They are what political philosophers call "essentially contested concepts," which means, by definition, that there will never be agreed upon final answers.  Conversation (or politics) is all there is, and to ask judges to provide "final" answers is chimerical. 

Loughlin and Tushnet & Bugaric have made me question how extensive a notion of constitutionalism I should continue to support, but they are not, at least in my reading, genuine opponents of the very idea of looking to constitutions as providing the basis for at least some kinds of political “settlements.”  Perhaps the most practical problem facing supporters of “minimal” constitutionalism is deciding how truly minimal they can be with regard to what one might consider the most basic predicate of the “democracy” that all of these authors defend.  NYU’s Samuel Issacharoff, a co-editor of the tellingly (and I believe misleadingly) titled casebook The Law of Democracy, rightly emphasizes the importance of election systems and the all-important willingness of losers to accept defeat gracefully and to begin organizing, peacefully, for the next election. 

But we have all learned that a “democratic election system” is not a self-evident concept.  One must decide, among other things, who can participate and under what conditions will elections take place (e.g., how easy or difficult will the actual act of voting be)?  There are also a multitude of questions with regard to the amount of time the winners should be allowed to occupy their offices (and thus to pass laws that will inevitably antagonize many of the losers).  The United States is “exceptional” in making its “representatives” face the voters every two years.  It was common in recent years--as against the "founding" period--to view such frequent elections as a “bug” and not a “feature” of American politics.  This year, however, I suspect that most readers of this review will view the “midterms”--and the fact that every single Representative must face the electorate--as perhaps the salvation of an embattled republic. Similarly, the oft-expressed disdain for the fact that all elections in the United States are in fact conducted by state and local officials is being repudiated by many today, who are altogether relieved that Donald J. Trump and his minions cannot in fact exercise what would be scary control of these election processes.  But one can still believe that reliance on state and local officials, many of them highly partisan, many others simply inexperienced and underfunded, presents deep problems.  So consider the fact that one of Tushnet’s other books, The New Fourth Branch, presents an admiring account of countries, including Mexico, that have in effect attempted to constitutionalize an independent agency entrusted with assuring the honest conduct of elections. Even a “minimal constitution” might nonetheless have to establish an institution relatively impervious to ordinary politics, inasmuch as elections (and constitutions) establish the stage settings within which the drama of democratic politics, often characterized by rancor, takes place.  

“Constitutional design,” like so many aspects of politics, is ultimately a search for the Goldilocks point of a “just right” rigidity—and to believe that the “right answer” at time T will still be the case at T+1 or, even more absurdly, at T+10.  One might well agree that the U.S. Constitution (and many others) are out of balance and that “juristocracy” is, for a variety of reasons, not the answer.  But even minimal constitutions profess the ability to establish basic—and relatively binding—rules as to how “politics” will be defined and carried out.  So can “we”—and who constitute the “we” is obviously itself a crucial question—agree on what constitutes “minimalism”? When does “minimalism” mean potential surrender to the mob; concomitantly, when do limits on the ability of “We the People” to engage in a system of majority rule devoid of multiple “checks and balances” serve less to preserve fundamental liberties or achieving necessary political concord among conflicting groups and instead become illegitimate “veto points” that privilege stasis over needed change?  Moreover, it is essential that a contemporary student of “constitutional design” pay attention to latter-day critics of election-focused “representative democracy,” such as Yale’s Helene Landemore, and take seriously not only the appeal, to some, of so-called “direct democracy,” but also, and far more interestingly, of integrating some forms of “lottocracy,” i.e., selection of at least some governing officials by lottery.  One might well want to “constitutionalize many of these decisions, for at least some period of time, rather than leave them to the rough-and-tumble of ordinary politics in which there is always a clear-and-present danger that the “ins” will wish to rig the next election in order to maintain themselves in power.  All electoral systems have practical consequences.  It is not that they are “above politics,” but one can still wish, at the very least, to make changing such systems more difficult than passing ordinary legislation, and that is basically what “constitutions” do.

One might well agree that we should, as a country, embark on the therapy that Tushnet and Bogarich counsel, one of whose lessons is to accept inevitable disappointments.  But we’re not ready to terminate it.  Instead, we might agree with Philip Roth’s fictional therapist, Dr. Spielvogel, who ended Portnoy’s Complaint, (perhaps) quoting Freud: “Now ve shall perhaps begin?”  One might well hope that Constitutionalism and Its Discontents will begin several long overdue discussions even if it by no means constitutes the last word. 

The Lost Art of the Deal

David Super

      If Vice President Vance was sincere this Spring when he reported that negotiations had failed because the Iranians did not accept the U.S. proposal, I have grave doubts about whether he understands even the rudiments of negotiations.  The news media’s credulous statement that “marathon negotiations” had failed after only twenty hours on a single day raised similar questions about the reporters and editors involved.  And the widespread tendency of progressives to insist that all bad outcomes could have been avoided if Democratic leaders would only “just say ‘no’” suggests a level of naivete that will pose a serious obstacle to maintaining the movement’s unity and effectiveness.  Although I am not a scholar of Negotiation, I have participated in, or been close to, a lot of high-stakes legislative (and litigation) deal-making, both successful and failed.  The pervasive misunderstanding of what public policy negotiations involve prompt me to want to survey some of the most egregious errors. 

      Two widespread fallacies are actually the opposites of one another:  negotiation as magic and negotiation as farce.  Diplomacy is no magic elixir that can bridge any gap; many differences are too fundamental, and many parties believe the consequences of refusing a deal are entirely manageable.  Putin has repeatedly insisted that Ukraine cease to exist as an independent country; Ukrainians do not wish to be annihilated and absorbed into a corrupt dictatorship.  No deal is possible.  Most lapses in appropriations result from both parties’ leaders’ beliefs that their adversaries would suffer greater political damage from a partial government shutdown; no sliver-tongued negotiator would get those leaders to accept a deal until actual experience caused their political expectations to converge.  A skilled negotiator can develop rapport with a great many counterparts, but a deal still needs approval by their respective principals. 

      On the other hand, skilled negotiating can obtain far better results than amateurish efforts.  As House Minority Leader, Rep. Nancy Pelosi repeatedly fashioned agreements with then-Speaker John Boehner that advanced Democratic priorities enormously.  She did this by recognizing that the Freedom Caucus had the Speaker boxed in and was refusing to move off their maximalist demands.  By being friendlier than the Freedom Caucus, and slightly more flexible, she gave Speaker Boehner an alternative.  Far from gaining power, the Freedom Caucus’s “just say ‘no’” philosophy empowered their ideological enemies.  Repeatedly.  Rep. Pelosi said “no” a lot, too, but she accurately assessed the limits of her leverage and made a deal when she had extracted all that she could get.  These achievements have gone underappreciated because trumpeting them would have embarrassed Speaker Boehner and closed the door on future such deals.  Much of the loyalty Rep. Pelosi enjoyed from Democratic Members sprang from admiration for her rare negotiating skills.

      Another key element of negotiation is to understand how one’s adversary’s priorities differ from one’s own.  Although reducing all politics to a single left-right scale has become fashionable, that is rarely the case in reality:  priorities are commonly non-linear.  I once obtained some very nice substantive provisions in exchange for agreeing to a silly name change.  In crafting pandemic relief legislation, Republicans wanted bail-outs for big business, bail-outs for small business, and little or no expanded unemployment benefits or aid to state and local governments.  Democrats, in turn, opposed bail-outs for large business, had mixed feelings about bail-outs for small business, and wanted to expand unemployment benefits and inter-governmental aid.  But the fervency with which the parties held these preferences was not at all equal. 

      Republicans were most interested by far in big business; Democrats were most interested by far in expanding unemployment benefits and keeping state and local governments from slashing human services and jobs.  The resulting legislation contained wildly generous bail-outs for big business whose accountability provisions were obviously ineffectual and an expansion of unemployment benefits far more generous than anything that had been seriously proposed earlier as well as the best-designed inter-governmental aid package in recent memory.  The parties worked amicably to craft a sound small business bail-out.

      Critics denounced the big business bail-outs as “corporate welfare” – which of course they were – and condemned Democratic negotiators as incompetent for not insisting on real accountability procedures.  They mostly ignored the unemployment compensation and inter-governmental aid provisions because those were obviously the “right thing to do”, as if their merit ensured their inclusion in the final package.  But Sen. McConnell had not suddenly become a socialist; he had no interest in unemployment compensation, and he knew that Republicans had fared quite well in past public fights over unemployment benefits.  The egregious corporate welfare was the price for the urgently needed unemployment compensation and state and local aid.  Democratic leaders could have publicly condemned the corporate welfare, but that would have prompted Republican leaders to publicly condemn the expanded unemployment compensation.  The result would have been that any future expansions of unemployment benefits would have been much harder to negotiate.    

      Risk aversion drives innumerable business deals and litigation settlements yet somehow many people fail to appreciate how central it is to legislative deal-making.  Legislative deals commonly get made when neither party really knows how a public confrontation would play out.  Critics say “if you had held out, you could have gotten more” – which is true, but it is also true that holding out might have gotten them less, perhaps much less.  The Fall 2025 government shutdown should never have happened:  the Democrats’ message reeked of hostage-taking (“give us the health insurance subsidies we want or we will shut down your government”), and messages like that have regularly failed in past shutdowns.  The more germane message – “we will not agree to a budget deal without statutory guarantees that the President will not impound funding for programs we care about” – was hard to convert into soundbites and thus also likely a loser.  (The President’s subsequent choice to limit disaster aid to red states may have made that argument easier to explain.)  The shutdown occurred because outsider critics not steeped in the history of what arguments have and have not prevailed in past government shutdowns demanded that Democratic leaders “show some backbone”, and the leaders caved to the critics.  Ironically, this showed that the leaders did not have enough backbone as the shutdown hurt both Democrats’ political leverage and the SNAP recipients and others who could not meet their basic needs. 

      Political professionals often recognize risks, or weaknesses in their position, that outsiders cannot see.  I was in negotiations when the Democrats were in the majority but one key Member, with a very progressive public image, had privately told us that he would not support us on the issue if it came to a public fight.  We therefore knew we had to make a deal or we would lose completely.  Fortunately, the Republicans assumed that we had the votes because they could not imagine this Member turning his back on us.  We managed to get far more than we would have in an open fight.  But we could not publicly explain why we made the concessions we did (even now, I am being rather elliptical) because that would have emboldened the Republicans to press harder on that and related issues and potentially alienated us from an ally we needed for other fights.  When Democratic leaders settle for pennies on the dollar, it is often because they know too many of their Members will defect on the next vote to hold the line; when they settle for nickels on the dollar, they strongly suspect that might happen. 

      Perhaps the most aggravating misconception about negotiations is that they are really nothing more than difference-splitting.  By this logic, every time one side makes their position more extreme, they improve the ultimate outcome.  If this were true, one must ask why everyone, including the other side, does not do it and what principle limits how much one can elevate one’s demands.  This would make Sens. Bernie Sanders and Ted Cruz the most effective senators in their respective parties, yet I am guessing most readers have never heard of the Sanders Act or the Cruz Amendment.  Nonetheless, outside critics continually insist that Democrats’ disappointing results stem from their not having demanded enough. 

      In political strategy as in investments, if it sounds too good to be true, it probably is.  Effective negotiation requires some mutual belief in good faith among the negotiators.  When one side demands something that they clearly could never get in an open fight and that appears to have been added to their list in an effort to pull the mid-point in their direction, the other side will insist that that demand be laid to the side before negotiations can begin.  If the first party refuses, their opponent then adds a bad-faith demand of their own and waits for the first party to show that they are serious by proposing to drop the extreme demands from each side at once.  Sometimes making an absurd demand so angers the other side that it raises its price to begin negotiations, perhaps to dropping the absurd demand and conceding something else.  Of course the first party can refuse, but that just postpones the start of meaningful negotiations – which could have been done in other, less insulting, ways.

      Progressives who ridicule assumptions of perfect rationality from conservative economists nonetheless assume that negotiators are perfectly rational.  They are not.  I have blown up negotiations that I needed to succeed because the other side was being too abusive; I have had opponents do the same when they felt I was taking a position in bad faith.   

      This is not to say that low-balling one’s demands is consistently correct, either.  Not infrequently, something very meaningful to you is only mildly objectionable to the other side and can be included in the deal at relatively little cost.  I was once trying to solve a problem and put four fixes of different kinds on the table, hoping one would get through.  The other side absolutely hated one of my ideas; they gave me the other three (which I liked better anyway) to drop the fourth.  But all four of my proposals made sound policy sense in terms persuasive to neutrals and moderates; none insulted the other side’s intelligence or looked like things I could not effectively fight for in public.  And the reason my conceding the one was worth something in exchange is that they thought I could win a fight for it. 

      Much of the Left, and much of the Right, have become so fiercely loyal to their partisan positions that they have lost the ability to understand the other side’s perspective.  Effective negotiation demands precisely that kind of insight.  The more one can see problems through the other side’s eyes, the better one’s chance of designing a proposal that combines viability in an open fight (if it were to come to that) and sufficient tolerability for the other side that the proposal can make it into the final deal.  Yet in many circles, pursuing this sort of understanding is seen as disloyalty or feeble-heartedness. 

      Despite progressives’ current fixation on “what would we do if we had all the power” discussions, the U.S. electorate remains very closely divided.  Republicans have won half of the last two, four, six, eight, and ten presidential elections and have structural advantages in the Senate and the House.  Unless and until we persuade substantially more of the electorate of our principles and program, negotiations will be crucial to making progress.  Some Republicans, such as Sen. Mitch McConnell, are very skilled negotiators; others, such as President Trump, are not.  We can achieve much better results, and avoid unnecessary divisiveness, if we recognize that negotiation is a sophisticated process involving information and inferences that are simply unavailable to outsiders.  Some Democrats really are terrible negotiators – I can think of one well-respected senior Democrat I would not trust to negotiate for my lunch money – but reliably judging a result from the outside is rarely possible except in very extreme cases.   

      @DavidASuper.bsky.social @DavidASuper1

The Enduring Significance of Peggy Sue Got Married (and Constitutionalism and its Discontents)

Mark Graber

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

             The movies “Back to the Future” and “Peggy Sue Got Married” offer different perspectives on the possibility that human beings through reflection and choice can fundamentally alter their condition.  In “Back to the Future,” the protagonist enables his father to change his fortunes in the present by changing his father’s actions in the past. In “Peggy Sue Got Married,” a different time traveler changes her actions in the past, but the result is merely a different path to a similar present.  Michael J. Fox’s fate is determined by his actions, while deeper structures are responsible for the fate of Kathleen Turner.

            Mark Tushnet and Bojan Bugaric in their acclaimed Constitutionalism and its Discontents take no clear position on the debate between “Back to the Future” and “Peggy Sue Got Married.” They have other, more important fish to fry.  Tushnet and Bugaric’s discussion of a world without rules about ruling implies that entrenchment is a human choice, that populations can decide whether to have a constitutional regime. Their admission that “discontents may be so bult into modern constitutions that they will persist even if [their proposed] changes are adopted” (3) suggests that entrenchment is a basic enduring structure of contemporary political life.  Perhaps one day one or both will write a book on the role of human choice and deep structures in constitutional development.  Constitutionalism and its Discontents is not that book and, to be clear, makes no pretense of being that book.

            Thinking about human choice and deep structures may nevertheless clarify a central theme of Constitutionalism and its Discontents, that creeping authoritarianism around the world is better combatted by policies that combat the inegalitarian impact of globalization than by constitutional rules that entrench political guardrails.  The central question the book raises is whether human beings can choose to make better entrenchments than whether they can decide not to entrench or constitutionalize anything.  Entrenchments of one form or another are baked into political life.  Whether certain economic structures are also baked into political life is beyond the scope of Constitutionalism and its Discontents and this review.

            “Peggy Sue Got Married” provides a better framework for thinking about constitutional entrenchments than “Back to the Future.” The democratic/majoritarian politics Constitutionalism and its Discontent favor and propose to improve concern how to entrench policies as well as about making policies.  Were Tushnet and Bugaric able to transform a constitutional regime into a regime lacking fixed rules about ruling that regime would soon transform back into a constitutional regime with legal, political, and cultural entrenchments.  Political entrepreneurs would either directly entrench or find workabouts for entrenching what they believed were fundamental rights, vital interests, desirable policies, and valued procedures. 

            Achieving a world without entrenched rules about ruling or anything else seems simple.  Tushnet and Bugaric are not anarchists.  They insist only that all constitutional rules be revised consistently with the rules for revising ordinary rules. The same rules that determine whether the income tax should be progressive should determine the length of a presidential term or the extent to which religious believers enjoy exemptions from general laws.  Such a regime might be brought into being by a constitutional amendment declaring “all rules in this constitution may be revised by the ordinary processes for making laws.”  Those concerned about the existing rules for making rules should add another constitutional amendment specifying more desirable rules for making rules.

            This entrenchment/constitutionalism free world will not last long.  Circumstances will soon arise in which majorities in the present will be tempted to make some rules more difficult to revise than others. Popular majorities may think investors in the regime need more security for their property rights than offered by the no-entrenchment regime.  They may think beneficial a deal by which Canada joins the United States in return for the permanent guarantee of twenty Senators. Political authorities might encourage investors and Canadians to read Constitutionalism and its Discontents and other literature (Mark A. Graber, “Constitutions as Constraints,” 83 Maryland Law Review 1059 [2024]) comes to my mind, if no others), but if they hold firm and popular majorities insist on an entrenchment, constitutional authorities will face a dilemma. They can entrench the rules preferred by investors and Canadians or treat the no entrenchment amendment as an entrenchment barring popular majorities from entrenching any rule. Whatever they do will result in an entrenchment of some sort.

            Legal entrenchments are tools that popular majorities use to achieve goals.  Popular majorities may decide that obtaining present investments and having Canada join the Union are worth sacrificing flexibility in the future on some matters.  Tushnet and Bugaric discuss in fine detail and approve similar practices that allow presidents and others gain present powers (determining the details of communications policies) by surrendering future powers (they cannot fire the head of the Federal Communications Commission for any reason).  An entrenched rule against entrenchments is just as much an entrenched rule about ruling that limits what present majorities can do as any other entrenched rule.  Whether such a rule is advisable, Tushnet and Bugaric remind us, depends on circumstances rather than abstractions. Some entrenchments designed to prevent slides to authoritarianism, they note, do not work as well advertised.  Still, as the above examples indicate, many political choices depend on what the constitutional rules shall be rather than on whether to have any entrenched rules at all.

            Regimes have numerous ways of entrenching rules other than as legal constraints not revisable by ordinary legislation that serve as effective if not more effective workarounds for bans on entrenchments.  Constitutions configure as well as constrain politics.  Rather than ask for an entrenched rule, investors and Canadians restructure the processes by which popular majorities make law.  They propose a third house of Congress, the House of Investors and Canadians, that has the power to veto any proposed law.  This “ordinary” rule can be altered by the processes for revising any other law.  The problem is that once the rule exists, Canadians and investors in the Third House of Congress are unlikely to agree to a better law.  On reflection, Canadians and investors may think that making an ordinary revisable law that increases their political power is a better entrenchment than legally entrenching some law that in the future will be implemented by democratic socialists who favor “Lake America.” Again, those who prefer some version of  democratic majoritarianism to constitutionalism reach the same dilemma.  Either popular majorities entrench legally rules that constrain undemocratic changes or they empower popular majorities to entrench rules politically that make their repeal less likely than if those rules were merely entrenched legally,

            The constitutive function of constitutions creates another opportunity for entrenchment.  Investors and Canadians inspired by Madison’s observation that a fundamental purpose of constitutional provisions is to “impress the degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, as one man, when the power of Government is unlawfully exercised” might prefer cultural entrenchments to legal or political entrenchments. Popular majorities that favor this form of constitutionalism will amend the constitution or laws to include a revisable provision declaring that investors and Canadians are vital to the constitutional endeavor and to pass mandating that the significance of investors and Canadians be emphasized in every elementary, middle and high school in the United States.  A fair probability exists that by culturally entrenching the value of investors and Canadians, investors and Canadians will achieve more protection in the long run than if the constitution and laws provided only political and legal entrenchments

            The “Peggy Sue Got Married” problem with entrenchments and constitutionalism exists in large part because all legal changes change the status quo.  The choices people make at one time determine the options available in the future, the processes by which people make decisions, who are the people who make those decisions, and what those people wish to achieve through politics.  Do-overs exist in movies, but not in politics.  Present majorities cannot choose to preserve the dodo bird because past policies resulted in the extinction of that species.  A present decision to adopt a parliamentary decision changes the political balance of power in the future.  A decision to annex Canada impacts who decision makers are in the future. A decision to abandon Diversity, Equity, and Inclusiveness changes the values of those future people.  Much of democratic politics, these examples suggest, are efforts to create legal, political, and cultural entrenchments that will preserve for the indefinite future what present majorities think are fundamental rights, vital interest, desirable policies, and valued procedures.

            These struggles over what to entrench, in keeping with the “Peggy Sue Got Married” theme, change the path by which Tushnet and Bugaric reach their final, most important, conclusion, but not the conclusion they reach.  One central teaching of Constitutionalism and its Discontents is that democracy is best maintained by a politics that promotes a strong and confident middle class than by policies that legally entrench certain rules of the game.  That strong middle class when in power will inevitably engage in some combination of legal, political, and cultural entrenchments that democratic majorities at a particular time think will sustain a strong, middle class.  Popular populist majorities will establish guardrails that they believe will best prevent severe economic inequalities from reoccurring.  They will adopt political processes that they believe most likely to maintain an egalitarian political order.  They will socialize citizens so that more people favor the merits of egalitarianism when compared to neo-liberalism.  Many if not all of these entrenchments will be subject to the concerns Tushnet and Bugaric raise.  Entrenchments that work in some times and in some places will not work at other times and other places.  Entrenchments that do not work as expected will nevertheless create persons will strong interests in maintaining them.  This is no reason to discard entrenchment or constitutionalism.  As Tushnet and Bugaric acknowledge, people often have to sacrifice future power to do want they think more vital in the present.  Democratic politics is an ongoing struggle on unbalanced playing fields, not one that can be resolved by any form of present entrenchment.