Democratic constitutionalism and the end of class-based societies

Guest Blogger

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

Roberto Gargarella

For many years, I have followed the work of Mark Tushnet with admiration. Lately, his contributions have been strengthened through his collaboration with Bojan Bugaric. They have been offering us constitutional studies that are informed by contemporary doctrine, marked by a strong attention to comparative law, a consistently critical eye, and a progressive perspective. Characterized by these traits, the new book that Tushnet and Bugaric have just published, Constitutionalism and its Discontents, represents a very good continuation of their previous book, Power to the People (Oxford UP).

Regarding Constitutionalism…, the first thing I want to say is that I share many of the main lines of analysis that are here presented. This is relatively obvious, on the one hand, given that the approach to constitutional law that I propose in my own studies—that of the "law as a conversation among equals"—is taken up and analyzed in some detail in this book. Beyond that convergence, and on the other hand, I have long been drawn to a "thin" reading of constitutionalism, such as the one they propose: an approach that is modest in its ambitions; aware of the inherent limitations of institutional reforms; critical of traditional modes of judicial review; skeptical of resorting to the "old toolbox" of constitutionalism (i.e., more rights, more courts) to solve the new problems we face; and radically more democratic in its spirit.

In any case, and beyond my expressed general agreement with the book's main perspectives, I would like to use the little space I have left to establish a point of partial disagreement, which perhaps suggests the presence of somewhat larger disagreements, both in diagnosis and in proposals. The disagreements I have in mind are particularly evident in chapter ten—the last and most proactive: "Preventing Democratic Decline: The Role of Political Parties." In my opinion, this chapter most clearly exhibits a certain diagnostic error regarding the ills that currently afflict democratic constitutionalism, one that was already apparent in the preceding chapters.

The diagnostic problem seems clear in almost every proposal presented here to prevent democratic decline. Thus, for example, when the authors state that "political leaders need to regain credibility by delivering simple and palpable benefits, such as good salaries, decent pensions..."; when they repeatedly assess that "major parties just miscalculated" how to act in times of crisis; when they suggest new forms of "interactions between party members and the party organizations"; when they advise "patience until party leaders on their own figure out strategies to improve their responsiveness to their 'ordinary workers' members"; when they insist on the idea of ??"strengthening party leadership"; and so on.

I believe that relying on partisan politics; the old (or renewed) political parties; party leadership; social mobilization around parties, etc., as a response to the current crisis, is misguided. This is because the social and economic conditions that gave meaning to political parties, and more generally to traditional forms of political representation, have disappeared. The key—in my opinion—is that we are undergoing a difficult transition from a class society (a few internally homogeneous social classes with stable interests) to a society with significant economic dispersion (self-employed, freelancers, part-time workers, the unemployed, informal workers, etc.) and a radical multiculturalism. In social and cultural terms, our societies not only appear fragmented into a vast diversity of groups with heterogeneous identities and/or interests (women, indigenous people, ethnic minorities, etc.), but also—in addition—each person exhibits a multifaceted identity. Today it is difficult to define someone -as in the past- as a worker, or a feminist, or an anarchist. That person can be, at the same time, a worker, a feminist, anti-immigrant, pro-drug use, anti-gun, anti-abortion: each of these facets, added together, constitute a person's identity. The "problem" that this situation generates is serious because therein lies the promise of an unrepresentable political perspective. The issue is grave because our entire constitutional structure, along with our political-party organization, has been prepared for a society that no longer exists and that cannot be recreated on its old terms. This is why the old constitutional structure is outdated (different branches of government representing different sectors of society, as in the idea of ??"Lords and Commons" or "the few and the many"); and the "old toolbox" of constitutionalism (more constitutional rights, more courts) is no longer useful. This is why it no longer makes sense to redesign political parties, or to continue betting on old forms of political representation, or to make proposals to strengthen party leadership. The fact is that the traditional "constitutional framework" has become a "tight suit" that no longer fits the "body" of these new societies, and the remedy of party politics that we appealed to in the 20th century (in order to continue making political representation possible). It no longer serves us -now, at the beginning of the 21st century- to achieve the old “noble dream” of constitutionalism (full inclusion/full social representation, checks and balances, etc.).

The social, economic, and cultural changes that our societies have been undergoing since the end of the 20th century require new political and constitutional responses. These responses must move beyond nostalgia for a bygone era that we will not recover (the era of strong political parties and unions, of large social movements). Furthermore, these responses must be attentive to the need for new forms of representation (perhaps representation to decide on a single issue and then dissolve, as sometimes happens in the new Citizens' Assemblies). And, of course, these responses must be aware of the troubling legacy of old practices: captured institutions; political elites that are difficult to remove from their public positions; party leaders who, once in power, seek to erode the old system of checks and balances, and so on.

In their new book, Tuhnet and Bugaric show themselves open to some of the alternatives I have just suggested —for instance, they have warmly welcomed initiatives such as Citizens' Assemblies and other renewed forms of political participation—but their underlying analysis remains anchored in assumptions and proposals specific to a society that no longer exists. Nevertheless, the sharpness, curiosity, critical analysis, and open-mindedness that continue to characterize their study of the state of democratic constitutionalism are highly commendable.

Roberto Gargarella is Professor of Constitutional Law at the Universidad de Buenos Aires. You can reach him by e-mail at roberto.gargarella@gmail.com.