For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago 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.
In this brief comment, I approach the book through the lens of my expertise in comparative constitutional law, engaging with selected arguments from the three parts. Comparison can shed particular light on the tension between democratic empowerment and constitutional constraint by revealing how it takes different forms across models of government and political systems, as well as within different arrangements of regional and supranational integration. It can thus help unsettle some of the classical assumptions and categories through which constitutional theory has traditionally framed and tackled that tension.
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.