Balkinization: Constitutionalism and Its Contents

Constitutionalism and Its Contents

Guest Blogger

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

Madhav Khosla

In contemporary politics, what we now routinely think of as a crisis of democracy has proceeded alongside a certain crisis of constitutionalism. Our reality isn’t merely one of democratic disenchantment, where we bemoan the electoral victory of disreputable candidates, the incapacity and misgovernance of representative government, or the disharmony between policies and outcomes. Instead, our basic institutions are functioning in tragic ways, public offices are betraying the very logic for their existence, and the constitutional system, as it were, seems to be part of the problem rather than the solution. It is no surprise then that major public law theorists are now “against constitutionalism” and are urging the abandonment of “constitutional structures.” And the electoral arena, in turn, is witnessing a kind of competitive populism where different varieties of populism are challenging one another, with each promising to undo the system in its own way rather than work within it.

Mark Tushnet and Bojan Bugaric’s important new book, Constitutionalism and Its Discontents, is a sober, careful effort at making sense of the various positions on offer in the battle over constitutionalism. The idea of constitution has its critics and advocates, but what precisely are people fighting over? What are the strengths and weaknesses of the differing orientations? Can we do without constitutionalism entirely – or might it be possible to embrace a more sensible version of it than those we’ve often been acquainted with? And perhaps, above all, can constitutionalism save us from authoritarianism – or is it going to carry us there?

In answering such questions, Tushnet and Bugaric are far from dogmatic, but they are clear. Different forms of constitutional design can be helpful, say in empowering voters, controlling the abuse of power, enabling effective decision-making, and so on, but the applicable design strategies can just as easily constrain self-government, permit authoritarian practices, and deactivate politics. As such, constitutionalism can both empower and disable democracy, and the direction it takes depends on a variety of highly contingent factors that operate at the moment. Indeed, “constitutionalism is beset by the paradox that it aims to both empower democratic self-governance and limit the exercises of that power” (p. 2).

For Tushnet and Bugaric, the answer to this paradox lies in a modest form of constitutionalism, one largely focused on procedural rules that avoid thick commitments and major entrenchment. Their reasons are plain. A thicker version of constitutionalism – one more in line with post-war liberalism – may, for instance, reasonably focus on minority oppression, but it ultimately hampers self-government by disabling majorities in crucial ways. It’s better to focus on politics and get the majority you want than hinder majority rule. Our political lives are better served by constitutions as “recommendations” that set up the “initial rules about ruling” (p. 17), rather than devices that chain self-government. The specific illustrations of this logic can be multiplied. Whether one considers militant democracy, restrictions on amendments, or the like, one is confronted with the “false promise of constitutional design” (p. 118) where devices that we think can protect liberty may well fuel and further oppression. As they show us, “every policy that might be useful to slow down democratic decline has the potential to slow down democratic revitalization” (p. 101).

There is much to be said in favor of Tushnet and Bugaric’s account, especially for scholars of American constitutionalism. The veto gates in the existing American system are so severe that one cannot but feel the attraction for a more British-style model of constitutionalism, where the legislature reigns supreme, and where new governments can relatively easily translate popular preferences in political action (with parliamentarism’s legislature-executive fusion). As an empirical matter, Tushnet and Bugaric may well be correct: thin constitutionalism might indeed be a wiser strategy than the alternative. And it is to their credit that they approach the matter with a rare kind of political humility and skepticism. So much of our history is filled with unfreedom laced and unintended consequences that it may be more sensible to conceptualize a form of constitutionalism that permits and facilitates revision, rather than one that locks us in.

Of course, Tushnet and Bugaric aren’t fans of oppressive majoritarian power, but they see the better answer to the worry as lying within the practice of politics, which constitutionalism should limit itself to thinly structuring, than through entrenched, politically immune legal rules and regulations. Treating constitutions like statutes allows them “to be followed when their provisions advance the public good” and “to be displaced when, after reflection and serious political contestation, one or a few provisions seem to stand in the way of adopting important policies” that the people associate with the public good (p. 27). And it is always worth remembering, they stress, that “a structured inability to achieve policy goals for which members of government are elected might be a continuing source of discontent with constitutionalism” (p. 46).

But, in the spirit of a provocative exchange, there is more to the debate over constitutionalism that Tushnet and Bugaric possibly suggest. To point the point sharply, in determining the right balance between thin and thick constitutionalism, at stake is not merely intelligent design but the normative basis for legal authority. We certainly want to adopt a design strategy that can increase the odds of both empowering the people and maintaining equal citizenship. Maybe – on balance, as an empirical matter, as a game theoretic supposition, as a historical fact, etc. – thinner versions of constitutionalism hold this promise more than thicker ones. But, beyond achieving this balance as a matter of realpolitik, what a constitutional order also does is ground the authority of law. It constructs a normative universe, and provides an argument – a justification – for the legitimacy of coercive action.

Indeed, Constitutionalism and Its Discontents says less than might be said about the role of normativity in politics. Whatever its failings, the great achievement of post-war liberal constitutionalism – that is, thicker versions of constitutionalism – was the articulation of the idea that power, even majoritarian power, must always be subject to justification. Through its contents, this version of constitutionalism set the normative baseline for what legitimate power looks like – and, even when it failed, those who violated it still had to speak that language. (A bit like despots on the international arena feeling a need to claim that their actions meet the requirements of international law.)

The post-war thicker versions of liberal constitutionalism underscored the idea that the democratic game of numbers was necessary but not sufficient to legitimize coercion; that the authority of law rests on something beyond mere authorization. The animating theme of liberal constitutionalism has been a dual focus on both how power is sourced and used. And the challenge of authoritarian populism – whether in Hungary, Poland, Turkey, or this country – is not merely that leaders are behaving wantonly. The challenge is far more fundamental for it articulates a new normative basis for the exercise of power.

Authoritarian populism challenges liberal constitutionalism by taking popular authorization as sufficient to warrant all exercises of power. Once the people have spoken, the conversation ends. We are witnessing not only new exercises of power, but a new ideology that redefines legitimate power. For all their brutality, authoritarian regimes do not rest merely on brute power. They rest – as I have suggested in a recent piece, The Authoritarian Argument – on reasons and arguments that underscore their legitimacy. Today, many of such regimes question the liberal idea that politics is a game of constant justification, a space where multiple sites of representation exist, and where legitimacy emerges from a plurality of practices.

Tushnet and Bugaric may well be correct that thin constitutionalism is better overall at preserving liberal values. Perhaps majoritarian power is the best way to prevent majoritarian oppression. But we cannot avoid acknowledging the normative contest at play here; and the importance of the idea that exercises of power must be subject to justification. The question, in other words, is not merely one of finding the right practical balance between thin and thick constitutionalism, but also about finding the right basis for the authority of law and for the exercise of coercion. The forms of thick constitutionalism that are familiar to many of us may have had several flaws, and many an unintended consequence, but thin constitutionalism will have to carry the burden of expressing the sentiment that that might is not right; and that even if the majority has the legal right to do something, it may not be legitimate for them to do so.

If we can agree, in principle, that majoritarian power is not sufficient to legitimize state action – just as minoritarian power is not – then how best to balance majoritarian expression with majoritarian restraint may require different forms of constitutional thickness and thinness in very different settings, depending on a variety of considerations. The real worry for our times is perhaps not the discontent with constitutions because they have constrained majoritarian expression, but the disillusion with the core content of the constitutional post-war imagination, namely that the use of power must always justify itself, however it is sourced. Put differently, we should worry not only about constrains on majoritarian power, but about the possible normative belief that that unconstrained majoritarianism offers a complete basis for the legitimate exercise of power.

Madhav Khosla is Dr. B.R. Ambedkar Professor of Indian Constitutional Law, Columbia Law School. You can reach him by e-mail at madhav.khosla@law.columbia.edu.

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