Response to Our Readers

Guest Blogger

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

Mark Tushnet and Bojan Bugaric

As several contributors to this book review symposium emphasize, conventions are important elements in institutional designs that contribute to social and political stability. With that in mind we follow the convention of thanking all the contributors for the attention and seriousness they devoted to our book. We add one thing: a recognition that review symposia like this one are especially well-suited to the blog format even as the long-form blog has gone into serious decline. Coordinating a symposium via Substack would be difficult, even putting aside questions about paywalls and the like; doing so on Bluesky would be impossible; and maintaining a podcast or newsletter, whether paid or not, would require a different level of commitment than does maintaining a blog. So our thanks go to Jack Balkin as well for his continuing support for the long-form blog.

We begin by noting that many contributors (alphabetically, Gamboa, Levinson, Nicola, Ragone, O’Cinneide) correctly pick up on something we think lies at the base of our analysis—an insistence that context matters. So, for example, our expressed preference for a “thin” constitution (however defined) can be displaced by thicker ones when circumstances require: an empowered constitutional court—one of Loughlin’s bugbears in the context with which he is concerned—might be appropriate when a nation is in the incipient stages of democratic decline, though as Levinson notes, we are skeptical about the proposition that institution designers will be able to create such a court that will be effective when needed (rather than captured too quickly) and will retreat when the exigency has passed. Here, too, though, context matters. Gamboa and Graber in different ways ask us—the community of scholars to whom our book is addressed—to consider the politics that might produce the Goldilocks solution. We have almost nothing to say about that in our book, apart from the fact that we advocate a greater role for politics, not law, aiming to provide solutions to accumulated problems of neoliberal politics of the last four decades, which make various populist responses thrive, and welcome further scholarly attention to that question, already addressed in other disciplines like political economy, sociology and political science.

Similarly with other aspects of institutional design, in particular with the fear of the Frankenstate that Ragone raises. Assembling an institutional order from pieces drawn from other orders might produce a Frankenstate but might also give you a pretty good working constitution. And the interaction effects that produce a Frankenstate are typically so complex that one can’t be confident that something assembly that works badly in one context might not work decently well in another.

We do report our sense that readers’ acknowledgement of the importance of context often comes with a perhaps residual sense that some aspects of institutional design are at least presumptively desirable everywhere at all times. Examples include empowered constitutional courts again, but also substantive commitments to somewhat thick assumed presuppositions about what democratic self-governance requires in the way of free expression and procedural regularity. Levinson has a somewhat longer list. We do not take the contributors to be committed to treating these matters of institutional design as inflexible steel bars but perhaps (forcing the metaphor) as pieces of balsa wood, somewhat supple but not bendable into any shape whatever. Here our reaction reverts to Freud: the psychology lying behind an analysis that leads to ego replacing id (not, pace O’Conneide, superego) is difficult—sometimes, as Freud suggested, interminable.

Gargarella, Nicola, and O’Cinneide raise questions about our conclusion that the remedies for democratic decline—and, we think we should now add, the prospects for further democratic empowerment—lie in ordinary politics conducted by ordinary political parties. Nicola and O’Cinneide question whether parties as currently constituted are well-suited to conducting the kind of constitutional politics that leads to democratic revival and expansion. Gargarella argues that parties as currently organized are ill-adapted to new social conditions of radical economic dispersion and multiculturalism.

To put the point somewhat awkwardly, we don’t really disagree with these observations. And we reiterate a point made in the book, that analysis of political parties is something that political scientists are far better at than we are. Nevertheless, our main intent in the book was to shift the attention from the obsession with “defensive legalism” toward greater engagement with politics, coming from political parties and other forms of political engagement. That said, we are currently working on a follow-up that will, we hope, address some of them. In that article we distinguish between the here-and-now and the ultimately desirable. The prescriptions for today’s center-left political parties we offer are short-term—how to begin to get out of the pickle we’re in. Gargarella in particular but also Purdy to some extent invite us to ask about the long term. We are happy to do so, again with the qualification about relative expertise. We note, though, an additional question: how do we get from here to there? On that we can point into direction of growing literature on law and political economy, offering fruitful conversation among lawyers about how to create legal prerequisites for open and democratic political renewal.

We turn from themes running through several contributions to points made by four contributors. O’Cinneide denies that majoritarian preference can always provide a sufficient justification for exercising public power—which, in light of our insistence on context, is surely true. He suggests, though, that there is something like constitutional justification that always must be provided. No surprise: we are skeptical because of the risk that what counts as a constitutional justification will either start out as or eventually become the kind of thick constitutionalism we do oppose. Perhaps, though, we could construe his argument as, Start out pretty thin and then contest through ordinary politics every effort to thicken the demand for constitutional justification.

So construed (which, we emphasize, is our construction not to be attributed to O’Cinneide), the argument runs up against the strongest of Graber’s points. Before getting to that, though, we want to point out something of an equivocation in Graber’s use of the term “entrenchment” to encompass legal, political, and cultural arrangements that can’t be displaced through ordinary majoritarian politics but can be displaced through sustained majoritarian or concentrated supermajoritarian politics. Some versions of Yale-associated accounts of the role of social movements in constitutional change are the prime examples of the former, formal constitutional amendments the prime example of the latter. Of course some results of ordinary politics are “sticky,” as we stress when arguing that making every institutional arrangement subject to ordinary politics won’t inevitably lead to chaos. Other than that, though, we’re not clear on what’s gained by lumping all these types of stickiness into the category “entrenchment.”

Graber’s strongest point, we think, is that sometimes the ordinary political contestation over thickening the justificatory requirements will end up with thicker rather than thin ones. People like us might lose out in that political struggle. Graber’s example of Canadians and investors identifies the most difficult case for us—thickening that leads to a change in the composition of the governing bodies whose actions are the targets of ordinary politics. Once you give Canadians and investors a formal role in governance, you’re going to be stuck with it absent extraordinary political mobilization.

Graber’s point identifies a central difficulty in pretty much all democratic theory. Who constitutes the demos that is to be self-governing? Discussions of the constitutionalization of the European Union asked whether Europe had a demos, though the consensus answer (“No”) doesn’t really address the theoretical question. Tushnet has a forthcoming short essay, “The Georgraphy of Constitutionalism,” that makes a stab at answering the question. He thinks that there’s no general theoretical answer but that things are path-dependent. Kif that’s right, our response to Graber’s strongest point is that the relevant politics can’t coherently be identified as majoritarian or otherwise (maybe applying the term to the politics that determines the boundaries of the demos is a category-mistake).

Purdy frames our work with reference to “structures of feeling.” We appreciate the point and may have hinted at it in our appropriation of the term “liberalism of anxiety.” For him, one characteristic of contemporary society is “a collapse in trust.” That seems right to us, in which case we might ask how to rebuild trust (rather than how to construct a stable democratic polity in the absence of trust). In the follow-up article we referred to earlier, we’re working on ideas about radical decentralization coupled with “transborder” agreements to deal with issues associated with world-wide political economy as a way of rebuilding trust through face-to-face interactions and reciprocal agreements. But, we’re not yet able to defend that position against some rather obvious skeptical thoughts that will already have occurred to readers of this response!

Finally, Loughlin mounts a severe attack on our argument. We were initially taken aback at its thrust because we thought we were operating within roughly the same conceptual space as his Against Constitutionalism. Some of his arguments seem to us based upon misreadings of our position, for example about the role of conventions, norms, and guidelines in stabilizing “thin” constitutional institutional arrangements.

Rather than engage his arguments point-by-point, we’ll conclude by suggesting that Loughlin doesn’t have the courage of his convictions. His book develops arguments against a particular form of constitutionalism. We can be taken as asking, What purchase do those arguments have against the components of even a thin constitution, or a constitutionalism that survives after Loughlin’s critique of that particular form? And, we can be taken as answering, Exactly the same purchase. That is, if Loughlin’s right about what’s wrong with the form of constitutionalism he criticizes, people like us who take up his arguments are right about what’s wrong with constitutionalism full stop. Or, as we put it in our follow-up article, we think it completely defensible to take politics all the way down—not merely through “ordinary” policies but through the institutional arrangements that are taken to define the particular forms democracy takes in each polity.

Again, we thank the contributors (and Balkinization) for providing us with the opportunity to engage with critical readers of our work, and hope that our responses add value to the book!

Mark Tushnet is William Nelson Cromwell Professor of Law emeritus at Harvard Law School. You can reach him by e-mail at mtushnet@law.harvard.edu.

Bojan Bugaric is Professor of Law at Sheffield School of Law. You can reach him by e-mail at b.bugaric@sheffield.ac.uk.