Discontent with Constitutionalism and Its Discontents

Guest Blogger

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

Martin Loughlin

My thoughts on Constitutionalism and Its Discontents, the latest publication from Professors Tushnet and Bugaric, must be situated in the context of their earlier book, Power to the People. That book, I argued in Balkinization, had failed to give a cogent answer to the basic question it sought to address, namely, whether populism is inconsistent with constitutionalism. And the reason was that the authors had not provided a clear statement of what those two key terms mean. With respect to constitutionalism, they sought to avoid controversy by presenting what they called a ‘thin’ account which could operate as ‘a least common denominator’. But this account, I suggested, was not only as contentious as so-called ‘thick’ accounts; it was also skewed in such a way that it would not be accepted by constitutionalism’s most fervent advocates. Their thin account could not differentiate between those who adhere to constitutionalism, those who reject constitutionalism but uphold constitutional democracy, and those who merely acknowledge the value of constitutional government.

In their response, the authors failed to engage with this issue other than indicating that my understanding of constitutionalism was not suitable for their purpose. Since the point I was making preceded the publication of my book, Against Constitutionalism, that seemed fair enough, because only in that book was I able to make out the case that throughout the modern era constitutionalism has carried a clear and widely understood meaning. It is, I argued, a liberal theory advocating the need for the written constitution to include a particular set of institutional arrangements that could restrain the power of majorities and set in place a scheme of limited government so that individual liberty might flourish. Distilling its elements, I proposed that the theory asserted that the written constitution should accord with six basic precepts: it establishes (1) a comprehensive scheme of (2) representative government and (3) differentiated powers, which is conceived (4) as having established a permanent framework that takes effect (5) as fundamental law, and which ultimately leads to the constitution being treated as the expression of a regime’s (6) collective political identity.

But we might also refer to Professor Tushnet’s own book, Taking the Constitution Away from the Courts. His discussion in that book implicitly endorses my understanding of the concept of constitutionalism and adopts a similarly sceptical view of its value. He cites positively Jefferson’s argument about the dangers of one generation binding the next, doubts whether constitutions ‘are a good way of tying our hands’, notes that the argument for entrenchment ‘overlooks the problem created by interpretive ambiguity’ and ridicules the opposing argument that otherwise ‘all institutions [are] up for grabs at all times’ (pp.40-42). In a book carrying such a title and containing chapters entitled ‘against judicial supremacy’ and, even more radically, ‘against judicial review’, it surely is not unreasonable to assume that Tushnet is ‘against constitutionalism’.

Following the publication of my book, the authors had the opportunity to offer a more considered response to my Balkinization review.  One obvious criticism is that I had adopted a contentious version of the concept and in a review essay – remarkably entitled For Constitutionalism – Mark Tushnet evidently thought so. Although generously acknowledging that Against Constitutionalism is ‘a powerful critique of what [Loughlin] rightly contends is the predominant form of constitutionalism in today’s world’, he ruminated on ‘whether that is the only form constitutionalism can take’ (p.15). Since I had argued that terms like ‘popular’ or ‘political constitutionalism’ – versions they had been advocating – are misnomers, this perhaps is not surprising. Yet, in a 40-page review essay, he does not make out a case for an alternative version. Instead, his critique is pitched at the claim that my book defends constitutional democracy against constitutionalism. But in advancing that claim he crudely mischaracterises my views on constitutional democracy.

In the Preface to Against Constitutionalism I noted that constitutionalism is often extolled but rarely defined. I explained that it ‘certainly expresses a belief that order, freedom, and justice are best promoted in a regime whose main characteristics are defined by a founding text elevated above the ordinary cut and thrust of politics’, but that otherwise its meaning often remains ambiguous. And here I must emphasize two points. First, that this is the only statement to be found in the book that mentions the phrase ‘the ordinary cut and thrust of politics’. Secondly, that that phrase is not made with reference to constitutional democracy; it is used only to help identify a basic feature of constitutionalism. It is a feature that the author of Taking the Constitution Away from the Courts might find uncontroversial. But this is not how he reads it.

In his review essay, Tushnet not only invokes that phrase fifteen times, but also asserts that I employ it as my definition of constitutional democracy. Asking, rhetorically, what does ‘constitutional’ in that phrase signify, he states: 

Loughlin’s answer is, We decide how to decide by the ordinary cut and thrust of politics (and, specifically, not by relying upon decisions about how to decide made by a constitution’s framers or by contemporary judges). Yet, one might object, we should hope that Loughlin doesn’t really mean “cut and thrust” in a literal sense— fighting in the streets with swords and their contemporary equivalent (even if in periods of extreme social and political stress such as Weimar Germany street violence might become part of the daily political landscape). If not fighting, though, ordinary politics even about constitutional matters has to be conducted through some institutional forms. And, one might worry, those institutional forms might not be well-suited for preserving or deepening the constitutional dimension of constitutional democracy. (p.28)

That statement requires a considerable amount of unpacking. Let’s set to one side the gratuitous references to Weimar and street fighting; anyone interested in my views on the nature of politics – which are far removed from fighting, in streets or otherwise – might consult chapter 3 of The Idea of Public Law. But he also makes the unwarranted and unsubstantiated assumption that for me constitutional democracy is a regime without an institutional infrastructure and in which everything is reduced to the ‘ordinary cut and thrust of politics’. Again, that same chapter of The Idea of Public Law provide a corrective.

How could that stance even be contemplated? Unless there are rules about ruling, there is no regime. Why would I write books on public law that examine such institutions as state, constitution and government if I held such a weird view? What must I have been thinking in writing an essay on ‘Law as Institution’? Why attribute to me what he recognizes as the crazy notion that ‘all institutions [must be] up for grabs at all times’ when in Against Constitutionalism (p.107) I explicitly state that constitutional democracy recognizes that ‘the written constitution performs a critical role in providing a framework for institutionalizing … social conflicts’? What causes him to convert a phrase I use only in a preface and then only to illustrate the character of constitutionalism into the epitome of my account of constitutional democracy?

I labour this point because following his review, Tushnet and Bugaric use my book to ‘frame the problem’ of Constitutionalism and Its Discontents. Their first chapter suggests that I am ‘against a form of constitutionalism [sic] specific to the circumstances of contemporary society’ and that I support ‘a form of constitutionalism in which the fundamentals of political organization are subject to determination by the pulling and hauling of ordinary politics’ (p.7). Since this statement again refers to my Preface statement, I fear what might follow when they ‘examine the coherence of that position’ (p.7).

I didn’t have to wait long to find out because, introducing the theme of rules about ruling, they state that ‘Loughlin wants to leave all questions [here we go again] to “the ordinary cut and thrust of politics”’ (p.9). And, to the contrary, they argue that: 

Ordinary political contestation occurs within a framework of rules about ruling. Lack of entrenchment means that there is no stable framework within which political contestation can occur. It means that everything about politics, including the rules and norms for conducting it, is up for grabs. (p.16)

Who are they arguing against? This is not an argument against ‘against constitutionalism’, nor an argument against constitutional democracy. Anyone crazy enough to believe there are no rules is not even arguing against constitutional government; they are against government! I understand that in the USA trust in institutions has all but collapsed, but I don’t understand why they seek to lay that anxiety on me.

Their second chapter on ‘Democracy Without Rules’ thus descends into nonsense. Democracy is a system of governing; its character is obviously determined by rules. But they persist: ‘The entrenched constitutionalism Loughlin argues against and the constitution-as-statute occupy different points in a space of varieties of constitutionalism.’ (p.23) It is true that I argue against constitutionalism and that constitutionalism depends on entrenchment (see precept 4 above), but I do not argue against entrenchment per se. Being a question of degree, to argue against any form of entrenchment would amount to being opposed to constitutional government. And as I make clear in Against Constitutionalism (p.7): ‘The practices of constitutional government continue to exert a guiding influence over many contemporary systems of government, including those of France, Sweden, and the United Kingdom, which do not adhere to the precepts of constitutionalism.’ Paul Starr expresses the basic point concisely in his book on Entrenchment when explaining that democracy ‘abhors entrenched power’ but ‘a democratic government cannot exist without foundational rules that determine how its institutions work’ (p.xiii). It’s so obvious that it needs no further elaborating.

In this second chapter Tushnet and Bugaric deliberate over what they conceive to be various forms of constitutionalism. And they reach a surprising conclusion:

Entrenched constitutions, thin constitutions, and constitutions-as-statutes have upside benefits accompanied by downside costs. Where one comes out on the choice between them depends upon one’s assessment of the size and probabilities of the benefits and risks. We don’t think it obvious, to say the least, that in all circumstances the calculations come out against treating constitutions as ordinary statutes. Of course, doing so disrupts the way we’re used to thinking about the constitution. And we don’t propose it simply because we think that constitutional entrenchment is basically a bad idea—though we do. We propose it because, in our view, in many circumstances the relevant calculation comes out against entrenched constitutions. (p.27)

To be clear, here they come out as being against constitutionalism!

They try to fudge this by claiming that ‘constitutionalism is most often said to be primarily or largely about imposing limits on the ability of governing officials to act arbitrarily’ (p.30). Not so: pace McIlwain, that is a statement of the purpose of constitutional government, not constitutionalism. Their ruminations then extend to the rise of authoritarianism and the reasons for, and the limitations of, institutional safeguards. On this I have nothing to add to what I argued in Against Constitutionalism: that populism is best seen as a syndrome, a symptom of dissatisfaction to the ways in which across the world constitutional democracies are being reshaped by constitutionalism. Is it fanciful to think that, ultimately, Tushnet and Bugaric do not disagree?

All of this is by way of saying that I find their argument puzzling. Tushnet’s apparent antagonism towards my thesis runs counter to much of his earlier work. Sure, I reject their use of adjectival qualifiers – whether popular constitutionalism, thin constitutionalism or whatever – as offending Occam’s razor. But if it were simply a disagreement about semantics, they might just say so. I persist with my claim, though, because it is only once constitutionalism is more precisely specified that the trajectory of global developments can be more clearly identified. And I suspect there’s more to it than a disagreement over the meaning of a term. Tushnet’s twentieth century writings about the USA provided a more vehement critique of constitutionalism than my rather conservative defence of constitutional democracy against rampant constitutionalism offers. But he has since become a celebrated pioneer of comparative constitutional studies, a subject with global aspirations that, in many quarters at least, presents itself as a twenty-first century incarnation of Cold War Liberalism. Go figure. 

Martin Loughlin is Emeritus Professor of Public Law at the London School of Economics & Political Science. You can reach him by e-mail at m.loughlin@lse.ac.uk.