For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago 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.
The authors put forward three reasons to support this argument. First, in their view, the fear of institutional chaos is overstated. Not only are ordinary rules sticky—subject to the realities of political tug-of-wars and thus, practically, even if not legally, entrenched—but they are unlikely to change all at the same time. Modifying one constitutional provision, while keeping everything else constant, does not undo the constitution.
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.
[1] Sheri Berman and Hans Kundnani, “The Cost of Convergence,”
Journal of Democracy 32, no. 1 (2021): 22–36; Steven Levitsky and Daniel
Ziblatt, Tyranny of the Minority: Why American Democracy Reached the
Breaking Point (Crown, 2023).
[2] Kurt Weyland, Democracy’s Resilience to Populism’s
Threat: Countering Global Alarmism (Cambridge University Press, 2024),
https://doi.org/10.1017/9781009432504.
[3] Douglass Cecil North, Institutions, Institutional
Change and Economic Performance, Political Economy of Institutions and
Decisions (Cambridge University Press, 1990).
[4] Although
the authors don’t mention it, well entrenched thick constitutions are also more
likely to be replaced (rather than amended). Facing hard to change charters in
Venezuela and Bolivia, Hugo Chávez (1999-2013) and Evo Morales (2006-2019) used
their popularity to bypass existing law and call for constitutional assemblies.
The new constitutions created hyperpresidential systems that facilitated the
erosion of democracy in these countries.
[5] Steven Levitsky et al., “The Price of American
Authoritarianism,” Foreign Affairs, December 11, 2025,
https://www.foreignaffairs.com/united-states/american-authoritarianism-levitsky-way-ziblatt.
[6] Ezequiel A. Gonzalez-Ocantos et al., Prosecutors,
Voters, and the Criminalization of Corruption in Latin America: The Case of
Lava Jato, Cambridge Studies in Law and Society (Cambridge University
Press, 2023), https://doi.org/10.1017/9781009329835.