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.