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.