Constitutionalism in Times of Democratic Backsliding

Guest Blogger

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

Laura Gamboa

Though often thought as linear and cohesive the literature on democratic resilience struggles with two relatively opposing premises. On the one hand, the rise of would-be-autocrats is portrayed as the outcome of political establishments unable to adequately represent voters and strong well-entrenched institutions that sustain minority government.[1] On the other hand, scholars contend, would be autocrats are more likely to succeed when they are fighting weak unentrenched institutions that can be easily amended or erased to undermine the checks on the executive.[2]

Scholars and practitioners interested in curbing the erosion of democracy, are therefore, based with a dilemma. Should we strive for well-entrenched hard to change constitution? Or should we design charters that majorities can easily change?

Constitutionalism and its Discontents takes up that question. In it, Mark Tushnet and Bojan Bugaric make a case against constitutionalism: “rules about ruling,” they posit, should be subject to the same forms of political contestation that we use for ordinary policies

Constitutionalism—or the entrenchment of rules about ruling—is not without merits. As the authors recognize, deep-seated rules can provide a more stable framework for political contestation. After all, institutions constrain the set of possible outcomes.[3] They lengthen actors’ time horizons and stabilize their expectations. When the rules of the game are set, elites know what they are playing for and what to expect if they lose. On the contrary, when they easily changed everything is up for grabs; there is no constraint to the set of possible outcomes, and losing becomes all of the sudden more costly.

Yet, as Tushnet and Bugaric highlight, this kind of stability comes with important drawbacks. Constitutions are context dependent. They cement particular setups of empowerment and limitation. Preventing adjustments as the polity’s preferences of what or who ought to be empowered or limited changes can be detrimental to democracy.

Second, constitutional entrenchment (in it of itself) has not proven to be particularly successful in deterring autocratization. Well entrenched thick constitutions, with substantive policy provisions, they explain, are likely to backfire. Inspired by the end of the Cold War in the 1990s, Tushnet and Bugaric argue in Chapters 5 and 6, the European Union created a series of rules that entrenched economic integration at the regional level while leaving social protection to national governments. When the eurozone-debt crisis hit in the 2010s, regional pro-austerity provisions—mandated at the EU level—made it nearly impossible for countries to spend countercyclically and boost their social programs. Constitutionally entrenched austerity had severe social and political consequences in Europe, not the least of which was the rise of parties and leaders with authoritarian tendencies.[4] 

Well entrenched thin constitutions, the authors discuss, are not particularly authoritarian-proof either. Thin institutions hoping to survive the test of time, must rely on informal institutions. Unwritten, these, however, can be easily circumvented or ignored. In the United States, for example, Donald Trump (2017-2021, 2025-present) has used and abused informal institutions to undermine the checks on the executive and weaponize government bureaucracy against opponents.[5]

Lastly, the authors suggest, institutions have unintended consequences. Provisions meant to limit power, can actually expand it. In Brazil, prosecutors eased evidentiary and procedural constraints to fight high-level corruption. Zealous about the crimes he was prosecuting, judge Sergio Moro engaged in misconduct to indict and jail then ex-president and highly likely presidential candidate, Luiz Inácio Lula da Silva (2003-2011). His actions derailed the 2018 election.[6] Something similar happened in Guatemala. Where the UN backed anti-corruption commission (CICIG) created a powerful general attorney to prosecute corruption. Taken over in 2018, by Consuelo Porras, a member of the “Corrupt Pact”, however, it was used for nearly ten years as a power tool of oppression.

All of these are good arguments against constitutionalism. Institutions that enable better more representative democracies are, indeed, needed to curb the rise of potential autocrats. But what about resistance once an autocrat has attained power? Wouldn’t less entrenched institutions pose significant risks then? The authors, suggest they don’t. In fact, they argue, they could hinder revitalizers by obstructing their agenda.

Indeed, constitutions do not have silver bullets against autocratization. As they show in Chapter 9, there is no constitutional design particularly suited to fight democratic backsliding and some of the constitutional tools available to halt the erosion of democracy are only successful when used at the right time. Moderate institutional strategies can run the clock on autocrats, slow down and obstruct democratic backsliding, but they are not entirely failproof and ultimately require the opposition to win elections (which they can hardly do by defending the status quo the autocrat sought to disrupt).

The book’s argument is timely and well built. It takes up a question that Political Scientists (like me) grapple with and rarely consider in detail. And while I can see how well-entrenched constitutions could be detrimental to democracy; I wonder how flexible should be? Majorities are not always right. How should we think about very popular presidents like Nayib Bukele (2019-present) who are willing to undermine the civil and political rights of those who oppose him?

I also wonder how do rules of constitutional amendment and replacement interact with other institutions. These too are context dependent. They may not have been created to obstruct change but turned into insurmountable obstacles as partisan organizations evolved or polarization increase. As we think about democratic restoration in countries like Hungary, Poland and Guatemala, is there a way to avoid that trap?

I thoroughly enjoyed the book and highly recommend it to scholars interested in constitutional design, democratic backsliding and or questions of post-authoritarian politics. Combining questions about institutional design and strength, with broader concerns about equality and representation, Tushnet and Bugariç tackle the twin problem of executive aggrandizement: acknowledging and addressing the popular force behind the rise of populist would-be-autocrats, while also understanding the need to limit their ability to reduce the checks on the executive to fulfill their agenda. 

Laura Gamboa is Associate Professor of Democracy and Global Affairs at the Keough School at the University of Notre Dame. You can reach her at: lgamboa1@nd.edu.