The Enduring Significance of Peggy Sue Got Married (and Constitutionalism and its Discontents)

Mark Graber

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

             The movies “Back to the Future” and “Peggy Sue Got Married” offer different perspectives on the possibility that human beings through reflection and choice can fundamentally alter their condition.  In “Back to the Future,” the protagonist enables his father to change his fortunes in the present by changing his father’s actions in the past. In “Peggy Sue Got Married,” a different time traveler changes her actions in the past, but the result is merely a different path to a similar present.  Michael J. Fox’s fate is determined by his actions, while deeper structures are responsible for the fate of Kathleen Turner.

            Mark Tushnet and Bojan Bugaric in their acclaimed Constitutionalism and its Discontents take no clear position on the debate between “Back to the Future” and “Peggy Sue Got Married.” They have other, more important fish to fry.  Tushnet and Bugaric’s discussion of a world without rules about ruling implies that entrenchment is a human choice, that populations can decide whether to have a constitutional regime. Their admission that “discontents may be so bult into modern constitutions that they will persist even if [their proposed] changes are adopted” (3) suggests that entrenchment is a basic enduring structure of contemporary political life.  Perhaps one day one or both will write a book on the role of human choice and deep structures in constitutional development.  Constitutionalism and its Discontents is not that book and, to be clear, makes no pretense of being that book.

            Thinking about human choice and deep structures may nevertheless clarify a central theme of Constitutionalism and its Discontents, that creeping authoritarianism around the world is better combatted by policies that combat the inegalitarian impact of globalization than by constitutional rules that entrench political guardrails.  The central question the book raises is whether human beings can choose to make better entrenchments than whether they can decide not to entrench or constitutionalize anything.  Entrenchments of one form or another are baked into political life.  Whether certain economic structures are also baked into political life is beyond the scope of Constitutionalism and its Discontents and this review.

            “Peggy Sue Got Married” provides a better framework for thinking about constitutional entrenchments than “Back to the Future.” The democratic/majoritarian politics Constitutionalism and its Discontent favor and propose to improve concern how to entrench policies as well as about making policies.  Were Tushnet and Bugaric able to transform a constitutional regime into a regime lacking fixed rules about ruling that regime would soon transform back into a constitutional regime with legal, political, and cultural entrenchments.  Political entrepreneurs would either directly entrench or find workabouts for entrenching what they believed were fundamental rights, vital interests, desirable policies, and valued procedures. 

            Achieving a world without entrenched rules about ruling or anything else seems simple.  Tushnet and Bugaric are not anarchists.  They insist only that all constitutional rules be revised consistently with the rules for revising ordinary rules. The same rules that determine whether the income tax should be progressive should determine the length of a presidential term or the extent to which religious believers enjoy exemptions from general laws.  Such a regime might be brought into being by a constitutional amendment declaring “all rules in this constitution may be revised by the ordinary processes for making laws.”  Those concerned about the existing rules for making rules should add another constitutional amendment specifying more desirable rules for making rules.

            This entrenchment/constitutionalism free world will not last long.  Circumstances will soon arise in which majorities in the present will be tempted to make some rules more difficult to revise than others. Popular majorities may think investors in the regime need more security for their property rights than offered by the no-entrenchment regime.  They may think beneficial a deal by which Canada joins the United States in return for the permanent guarantee of twenty Senators. Political authorities might encourage investors and Canadians to read Constitutionalism and its Discontents and other literature (Mark A. Graber, “Constitutions as Constraints,” 83 Maryland Law Review 1059 [2024]) comes to my mind, if no others), but if they hold firm and popular majorities insist on an entrenchment, constitutional authorities will face a dilemma. They can entrench the rules preferred by investors and Canadians or treat the no entrenchment amendment as an entrenchment barring popular majorities from entrenching any rule. Whatever they do will result in an entrenchment of some sort.

            Legal entrenchments are tools that popular majorities use to achieve goals.  Popular majorities may decide that obtaining present investments and having Canada join the Union are worth sacrificing flexibility in the future on some matters.  Tushnet and Bugaric discuss in fine detail and approve similar practices that allow presidents and others gain present powers (determining the details of communications policies) by surrendering future powers (they cannot fire the head of the Federal Communications Commission for any reason).  An entrenched rule against entrenchments is just as much an entrenched rule about ruling that limits what present majorities can do as any other entrenched rule.  Whether such a rule is advisable, Tushnet and Bugaric remind us, depends on circumstances rather than abstractions. Some entrenchments designed to prevent slides to authoritarianism, they note, do not work as well advertised.  Still, as the above examples indicate, many political choices depend on what the constitutional rules shall be rather than on whether to have any entrenched rules at all.

            Regimes have numerous ways of entrenching rules other than as legal constraints not revisable by ordinary legislation that serve as effective if not more effective workarounds for bans on entrenchments.  Constitutions configure as well as constrain politics.  Rather than ask for an entrenched rule, investors and Canadians restructure the processes by which popular majorities make law.  They propose a third house of Congress, the House of Investors and Canadians, that has the power to veto any proposed law.  This “ordinary” rule can be altered by the processes for revising any other law.  The problem is that once the rule exists, Canadians and investors in the Third House of Congress are unlikely to agree to a better law.  On reflection, Canadians and investors may think that making an ordinary revisable law that increases their political power is a better entrenchment than legally entrenching some law that in the future will be implemented by democratic socialists who favor “Lake America.” Again, those who prefer some version of  democratic majoritarianism to constitutionalism reach the same dilemma.  Either popular majorities entrench legally rules that constrain undemocratic changes or they empower popular majorities to entrench rules politically that make their repeal less likely than if those rules were merely entrenched legally,

            The constitutive function of constitutions creates another opportunity for entrenchment.  Investors and Canadians inspired by Madison’s observation that a fundamental purpose of constitutional provisions is to “impress the degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, as one man, when the power of Government is unlawfully exercised” might prefer cultural entrenchments to legal or political entrenchments. Popular majorities that favor this form of constitutionalism will amend the constitution or laws to include a revisable provision declaring that investors and Canadians are vital to the constitutional endeavor and to pass mandating that the significance of investors and Canadians be emphasized in every elementary, middle and high school in the United States.  A fair probability exists that by culturally entrenching the value of investors and Canadians, investors and Canadians will achieve more protection in the long run than if the constitution and laws provided only political and legal entrenchments

            The “Peggy Sue Got Married” problem with entrenchments and constitutionalism exists in large part because all legal changes change the status quo.  The choices people make at one time determine the options available in the future, the processes by which people make decisions, who are the people who make those decisions, and what those people wish to achieve through politics.  Do-overs exist in movies, but not in politics.  Present majorities cannot choose to preserve the dodo bird because past policies resulted in the extinction of that species.  A present decision to adopt a parliamentary decision changes the political balance of power in the future.  A decision to annex Canada impacts who decision makers are in the future. A decision to abandon Diversity, Equity, and Inclusiveness changes the values of those future people.  Much of democratic politics, these examples suggest, are efforts to create legal, political, and cultural entrenchments that will preserve for the indefinite future what present majorities think are fundamental rights, vital interest, desirable policies, and valued procedures.

            These struggles over what to entrench, in keeping with the “Peggy Sue Got Married” theme, change the path by which Tushnet and Bugaric reach their final, most important, conclusion, but not the conclusion they reach.  One central teaching of Constitutionalism and its Discontents is that democracy is best maintained by a politics that promotes a strong and confident middle class than by policies that legally entrench certain rules of the game.  That strong middle class when in power will inevitably engage in some combination of legal, political, and cultural entrenchments that democratic majorities at a particular time think will sustain a strong, middle class.  Popular populist majorities will establish guardrails that they believe will best prevent severe economic inequalities from reoccurring.  They will adopt political processes that they believe most likely to maintain an egalitarian political order.  They will socialize citizens so that more people favor the merits of egalitarianism when compared to neo-liberalism.  Many if not all of these entrenchments will be subject to the concerns Tushnet and Bugaric raise.  Entrenchments that work in some times and in some places will not work at other times and other places.  Entrenchments that do not work as expected will nevertheless create persons will strong interests in maintaining them.  This is no reason to discard entrenchment or constitutionalism.  As Tushnet and Bugaric acknowledge, people often have to sacrifice future power to do want they think more vital in the present.  Democratic politics is an ongoing struggle on unbalanced playing fields, not one that can be resolved by any form of present entrenchment.