For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).
Colm O’Cinneide
Introduction - Keeping the
Constitutional Flame?
On the very first page of Constitutionalism
and its Discontents, Mark Tushnet and Bojan Bugaric provide a wonderfully
succinct summary of constitutionalism’s current ‘discontents’. Across the
democratic world, constitutional controls are crumbling, exposed as lacking in
effectiveness, and/or becoming the focus of sustained and divisive political
controversy. As Mark and Bojan point this, the latter is a particularly corrosive
problem: ‘it runs up against one of the hopes held out by constitutionalism’s
proponents, that it provides a neutral framework for the resolution of partisan
conflicts’ (p. 1). In general, the constitutionalist cart seems to be
overloaded: courts and other guarantor institutions are constantly accused of
both over- and under-reaching, even as their authority is increasingly
contested.
And yet faith in constitutionalism
persists. If anything, it tends to be professed with extra vigour and devotion.
We hear calls all the time for renewed fidelity to rule of law, separation of
powers and other core constitutional principles - and for associated mechanisms
such as judicial review to be reinforced and strengthened in the face of
Trumpism, Orbanism etc. (The USA is perhaps something of an outlier here: looking
in from the outside, the Supreme Court’s legitimacy
crisis seems to have dampened faith in constitutionalism to a degree that
is (yet?) to be matched elsewhere in the democratic world.)
Is this devotion justified? Is the solution
to the crisis of constitutionalism really to double down on constitutionalism? Mark
and Bojan say no. They have come to cast cold water on the fervour of the
constitutionally devout; to demonstrate the hollowness of constitutional
doctrine and the infeasibility of the hopes invested in it; and to disenchant
the true believers. Revivalism, like that offered up in recent work by Fishkin
and Forbath, does not interest them. Instead, they argue that we should abandon
belief in the virtues of embedded constitutionalism - and liberate political
contestation from the dead hand of democracy-constraining constitutionalist
legalism.
Similar arguments have been made over the years, by commentators such as Unger, Loughlin, Bellamy, Moyn and Doerfler and the authors themselves – not to mention proponents of British-style ‘political constitutionalism’. (Which has regained its orthodox status in the UK in recent years: something which may be at best a mixed blessing for Mark and Bojan’s line of argumentation, as discussed briefly below.) This line of critique is increasingly vigorous, and attracting attention. It taps into concerns about depoliticisation and the shrinking space afforded to democratic decision-making. And it offers an alternative to the increasingly hollowed out promises of constitutionalism.
Constitutionalism and its Discontents adds another entry to this gradually accumulating charge sheet. However,
it stands out in several ways. First of all, it is written with real style,
concision and verve – making it a pleasure to read. Secondly, it uses
comparative evidence from a wide range of jurisdictions to build up its core
arguments in pointillist fashion, instead of just relying on broad normative
brush strokes (although they play a significant role at various stages of the analysis).
Thirdly, it takes the supranational dimension to constitutional governance
seriously, making particular reference to ‘programmatic’ aspects of EU
constitutionalism – something that is often awkwardly ignored or glossed over
in academic argumentation that has a similar ‘political constitutionalist’
stamp, which has a tendency to stick its metaphorical fingers in its ears and refuse
to engage with the necessary complexity of supranational governance structures
like the EU.[1] Fourthly,
it critiques constitutionalism in terms of its own professed aims and
ambitions, in particular the aspiration to protect democracy from abusive
political overreach - and shows that it
is struggling to deliver.
The Case for Constitutional
Disenchantment
Mark and Bojan’s arguments particularly
resonate when they discuss what they call the ‘paradox of constitutionalism’,
i.e. how it ‘aims to both empower democratic self-governance and limit the
exercises of that power’ (p. 2). As they note, this is an inherently slippery and
unstable ambition. It ensures that courts are constantly forced to navigate
between the twin perils of judicial over-reach and judicial self-abnegation. It
exposes them to the charge of being anti-democratic. It can stoke popular discontent,
by limiting how governments can respond to shifts in public opinion. And all this
can expose courts to political pressure, while also incentivising governments to
find a way around such controls by e.g. manipulating the judicial appointments
process.
The authors back up this structural analysis
with a comparative analysis of how these tensions play out in the context of
(i) general controls on executive power; (i) the application of ‘programmatic’
controls on the trajectory of national economic policy; and (iii) attempts to
use constitutionalist tools to tackle the problem of ‘democratic decay’. This
latter part of their analysis – developed in Part III of the book – is
particularly well done. Drawing on evidence from the US, Hungary and elsewhere,
Mark and Bojan suggest that constitutional responses to genuine authoritarian
threats often suffer from a ‘Goldilocks’ problem: constitutional courts tend to
be unsure when they should intervene to combat such threats, and end up waiting
for a ‘just right’ moment which never comes until autocratic capture is
complete. They also suggest attempts to deploy constitutionalism against
populist parties often seem to be motivated by a vague and inchoate ‘liberalism
of anxiety’, rather than a genuine desire to push back against fundamental
threats to democracy and human rights. And they highlight how the invocation of
constitutionalism as a buffer against populism often discredits it in the eyes
of substantial chunks of the citizenry.
No Salvation in Constitutionalism
Some evidence offered up by Mark and Bojan
in support of this analysis can be contested, or nuanced. For example, courts in
some states have played an effective role in conjunction with other legal and
political actors in shoring up democratic resilience, without alienating
popular majorities – with e.g. Italy offering
up an interesting case study in this regard. And, while the book’s discussion
of programmatic controls in the context of EU constitutionalism is highly
impressive, I am not convinced that it sets out a comprehensive indictment of
such controls more generally. (Indeed, if anything, I would argue that the EU
experience shows that it is possible to combine programmatic controls with
democratic input. But this is perhaps a discussion for another day.)
These quibbles aside, I find Mark and
Bojan’s diagnosis to be broadly convincing. Constitutionalism is prone to
oscillating between over-rigidity and over-permissiveness: between being too
controlling and too accommodating of political power, both in terms of public
perception and the reality of public governance. By extension, it struggles to
deliver on its own promises, i.e. to protect minorities, limit executive
over-reach and the like, while also satisfying critics of judicial over-reach. And
this inherent instability is contributing to the erosion of public confidence
in the functioning of liberal democratic states.
But No Salvation in Majoritarianism
Either
However, if constitutionalism will not save
us, to paraphrase Mark and Bojan – if the Emperor turns out to be not wearing very
many clothes at all, so to speak - then should we abjure our constitutionalist
faith and seek salvation in other doctrines? This is what Mark and Bojan
suggest, while acknowledging that different responses may be appropriate in different
states depending on context.
More specifically, they argue that we should
‘scale back our expectations’ in relation to constitutional form and process.
Instead, we should embrace mostly procedural and ‘thin’ approach to constitutionalism
- whose provisions can be amended or displaced through standard legislative
procedures, if ‘after reflection and serious political contestation’ (p. 27) they
are deemed to be dispensable. In other words, Mark and Bojan recommend that we consider
ditching the idea that constitutions should be treated as sacred text, and replace
it with faith in the integrity and sufficiency of the political process as
channelled through the electoral system.
Now, this is where I begin to part ways
with Mark and Bojan’s analysis. Or at least to wonder whether their cold-eyed disenchantment
with constitutionalism gives way to an overly idealised view of the dynamics of
party political contestation as it plays out within the atomised conditions of
modern life.
The book acknowledges that campaign
financing and donor interests exert a huge influence over political agendas,
and that political parties have in general lost the mass popular base they once
enjoyed in the post-1945 period.[2]
However, in the final chapter Mark and Bojan offer suggestions as to how these
flaws can be partially remedied, by electoral law reform, greater use of
citizen assemblies and other incremental adjustments to the status quo. And
they make the case that party political contestation remains the most authentically
democratic route through which majority will formation takes place – while also
being sufficiently competitive, ‘reflective’ and robust as to minimise the
possibility that governing parties will take abusive advantage of an easily
revisable ‘thin’ constitutional framework.
However, I do not share their idealism. First
of all, the political process in most liberal democracies is increasingly
lacking in ‘reflectiveness’, being replaced by eyeball-attracting rhetoric and targeted
appeals to particular special interests or demographic segments. Secondly, increasingly
large segments of the population are not well represented – especially non-citizens
and the socially marginalised, who also happen to be the groups most vulnerable
to abuse of government power. And then there is the clear evidence, building
day by day, that big chunks of the electorate in many different democracies are
not especially motivated by concern to maintain basic rights protection, or
meaningful cross-branch constitutional ‘collaboration’, or to punish corruption
– making it less likely that changes to constitutional ground rules will
attract the sort of ‘serious political contestation’ that Mark and Bojan would
favour before they are adjusted to suit the political agenda of a ruling party.[3]
Constitutional Tempering
There is also a wider problem here. Mark
and Bojan passionately argue for the establishment of a true ‘constitution of
equals’, which should preclude the legal elitism associated with embedded
constitutionalism. But as Roberto Gargarella has recently
pointed out, the concept of a ‘constitution of equals’ could be viewed as
having three pillars: public debate, social inclusion, and ‘common equality’,
i.e. a commitment to ensuring certain structural conditions are in place to
facilitate equal democratic participation. And, for all its many flaws,
contradictions and inadequacies, the idea of constitutionalism as it has
evolved over the last 150 years or so makes room for this wider commitment, which
extends beyond the formal equality of the franchise.
Now, Mark and Bojan are right to question
whether embedded constitutionalism in its various facets is delivering on this
commitment. But there are grounds to be concerned that treating majoritarian
views as the sole and ultimate determinant of what should qualify as a core
constitutional norm may result in this wider, more structural concept of
democratic equality being lost in political churn. Especially at the current
moment, when political parties committed to magnifying social exclusion on race
and religious grounds are thriving at the ballot box.
I should emphasise this is not an argument
for clinging to the constitutionalist faith as currently preached, or investing
futile hope in judicial review and other mechanisms. However it is a reason to
be wary of making majoritarian will the sole reference point for defining what
we consider to be constitutional behaviour – both as a matter of legal
interpretation and in political debates. Various institutional methods can be
used to bring justificatory pressure to bear on elected governments invoking the
popular will to do constitutionally controversial things: ordinary legislation,
fourth branch bodies, international law norms and political accountability
mechanisms all have a role to play in this regard. The final say on a disputed
issue might remain with the legislative majority – but at least a legal and
political contestatory space should exist, making it possible to distinguish
the concept of what is ‘constitutional’ from the concept of the ‘popular will’.
And we should be aware of the threat of democratic monism, i.e. the danger that
all aspects of state functioning will be expected to fall into line with
current government policy, including human rights and anti-discrimination law
controls that are expressly designed to operate with a robust degree of
autonomy in this regard.
The British constitution is sometimes cited
as a functioning model of the type of majoritarian-based political constitution
favoured by Mark and Bojan. However, during what are widely regarded to be the
golden years of this constitutional model, i.e. in the democratising post-1945
period, there was a reasonably robust sense of shared constitutional values and
the need to avoid democratic monism. It was not a perfect system: for example,
it failed utterly to handle the deep political, religious and socio-economic divides
of Northern Irish society. But the concept of the ‘constitutional’ exercised a
tempering effect on majority will. Now, in the UK, we see majoritarian will increasingly
invoked to justify more and more extreme measures
directed against migrants, environmental protestors and other unpopular groups –
and tempering mechanisms such as the Human Rights Act 1998 coming under constant
attack, precisely because they limit political freedom of action.
Now, once again, none of this invalidates
Mark and Bojan’s scorching dissection of constitutionalism and its many
discontents. But it perhaps does suggest that some scepticism is also warranted
when it comes to faith in the dynaimcs of party political contestation. It
would have been interesting to hear more from Mark and Bojan about where
‘weaker’ forms of constitutional tempering fit within their vision of democracy
freed from the rigid structures of embedded constitutionalism. It would also have
been interesting to see more discussion of the extent to which constitutionalism
is a necessary element of any serious supranational socio-economic integration
project, such as the EU – and how much political/majoritarian choice can be
infused within such mechanisms, given the need for sustained cross-national cohesion
over time. But that is all potential material for a sequel, if Mark and Bojan
choose to treat us with another book as rich, incisive and thought-provoking as
this one.
Conclusion – Political Ids and
Constitutional Superegos
Drawing this overly long blogpost to a
close, it is good to return to the discontents of constitutionalism as
dissected by this masterful book. Mark and Bojan are right to argue that the
constitutional faith cannot deliver the redemption it promises, and thus we
should view the reality of its functioning with a sceptical and disenchanted
eye. However, they go on to argue (citing Freud) that jettisoning this faith
and embracing another gospel - trust in political contestation - will help us
convert the misery of our present constitutional discontents into a less
pressing ‘ordinary unhappiness’. In response, I think they should also cast
more of a cold eye on this alternative faith and the alleviatory promises it
makes.
More specifically, picking up their
Freudian theme, I think Mark and Bojan are too quick to overlook the problems
of the political id, as shaped, structured and expressed in our contemporary
liberal democratic societies, and how this is intimately bound up with the all-consuming
nature of the political ego. My sense is that some element of constitutionalist
superego is still needed, if reconfigured and deployed with suitable care and
modesty of ambition. However, even my points of disagreement should be read as
reflecting deep admiration for the tensile strength of Mark and Bojan’s
argumentation - and the fundamental challenge it poses to believers in the
constitutional creed.
Colm O’Cinneide is Professor of Constitutional and Human Rights Law at University College London (UCL). He is contactable at c.o’cinneide@ucl.ac.uk or uctlcoc@ucl.ac.uk.
[1] See also the way in which confused appeals to the concept of
national sovereignty wreaked havoc with the Brexit process in the UK.
[2] For an excellent exploration of this shift, see A. Jäger, Hyperpolitics:
Extreme Politicization without Political Consequences (Verso, 2026.)
[3] If looking for evidence to support this point, please note current
political developments with e.g. the Trump administration in the US and the
success of the Reform Party in the UK.