The (not so) Secret Life of Constitutionalism and Its Discontents

Guest Blogger

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

Jedediah Britton-Purdy

I admire and enjoy Constitutionalism and Its Discontents. The authors’ careful parsing of exaggerated or one-sided hopes for constitutional salvation is always worth following. I tend to see it as a series of follow-ups to the authors’ important previous book, Power to the People. There they argue that populism is not necessarily anti-democratic but is often an expression of democratic power and aspiration.  Constitutional limitations on popular power, and in particular on majority rule, can be anti-democratic (normatively) and can (in fact) inspire exactly the kind of insurgent and system-revising politics that they are often wrongly imagined as tamping down. I largely agree with this overall view and have given my own version of it in various places, including The Nation (on populism), the Times (on majoritarianism), and The Atlantic (on constitutional entrenchment), and at book length. Because neither loud agreement nor minor quibbling is very interesting, I’ll instead approach the book from a few odd angles.

The first odd angle is to try tendentiously to touch the pulse of the book, its structure of feeling. The historian Marcus Rediker recently wrote that “almost every book has a complex and secret emotional life.” This book’s persistent spirit of skepticism and resistance to grand claims (“One way to construe our argument in part I is that we believe otherwise” is the authors’ Bartleby-like endorsement of democratic constitutional creativity) ended up feeling to me like an attitude of diffidence, if not something chillier, toward a certain version of professional identity. In the past decade of political discontent, law professors, especially constitutional law professors, have often been invited to weigh in with a blend of moral clarity and professional precision on public matters of the highest moment. Yet in the authors’ eyes, I suspect, accepting the invitation can be dangerous because intellectual honesty may require us law professors to conclude that there are severe limits to our helpfulness. As they show, institutional engineering intended to have one effect will often produce a very different result, a tremendous amount depends on context, and there is always temptation to invoke the Constitution, or “constitutionalism,” against politics one opposes.

As I moved into the authors’ discussion of democratic decline, I felt even more that I was in the company of diffidence toward the whole vocation of public and especially constitutional law—at least in its present role as a first responder to democratic crisis. As the book proceeds, it emerges that the most significant drivers of democratic crisis (or decline, to stick with the authors’ preferred term) are factors that public law qua constitutional design does not usually address. Foremost is the set of economic disruptions and dislocations that are sometimes gathered under terms like “globalization” or “neoliberalism.” Part of the problem with rallying “constitutionalism” to address the politics that has followed on these disruptions is that—even setting aside the democratic validity of important forms of populism—the prescription does not address the cause. By the end, the authors refer to a pairing of economic and “spiritual” problems to describe the condition of voters, and emphasize that neither constitutionalism nor they, as (critical) students of constitutions, can say much to these, the real engines of political disruption.

What a student of these institutions can say is that they should not be hastily or complacently deployed to block democratic ferment. As the authors regularly emphasize, one of the things a discontented public has every right to do is to alter the structural principles, the “rules of ruling,” that stand in the way of their efforts to make their lives better. In particular, it is possible to point in directions that seem to promise greater empowerment of ordinary citizens. The authors’ concluding proposal (cautious and heavily qualified though it is) to make political parties sites of ongoing engagement and accountability rather than mere episodic “messaging” and voter mobilization strikes me as promising. But, as I said at the outset, I was more or less with them at “hello.”

So, my second odd angle: to say something cursory about the “spiritual” problems that the book adverts to but, for plenty of good reasons, doesn’t engage. The book left me wondering whether any move to a more empowered ordinary democracy is particularly hard in a country whose “spiritual” problems might be said to include interpersonal and institutional mistrust and intense affective polarization. Democracy incorrigibly puts us in one another’s hands with respect to our most basic commitments and interests. It isn’t surprising that this feels intolerable to many Americans, who are persuaded that their opponents lack good faith and shared values. What Judge Learned Hand famously said of a constitution, that (to paraphrase) if it lives in the hearts of citizens it hardly needs to be written down and if it does not live in the heart then writing it down is no use, is half-true of democracy. To believe in it is to believe that you are among others who can do it with you. If you don’t believe that they can, and neither do they, then democracy is tenuous at best. It’s especially ill-equipped, in that precarious condition, for the kind of democratic creativity that attracts the authors, the breaking with old rules of ruling to clear space for new approaches that can better advance the common good. If that “common” just doesn’t exist, and doesn’t feel achievable, the whole sequence of action can blink out of existence. Although Americans have some tendency to talk about our Constitution in vaulting terms, much of the basis of its appeal is the idea (which has some basis in reality) that it keeps our neighbors from messing too aggressively with us or the institutions we take for granted.

Second is to take on, in a similarly cursory and presumptuous way, one limb of the vast elephant of political economy, specifically where it seems to link up with these theme of political culture. The authors note that “democratic decline” coincides with a period of intensified economic globalization. One could note that it also coincides with the general uptake of the internet and the movement of a lot of the culture to it. As the great Raymond Williams argued, our means of communication is a material basis of our cultural (one could say spiritual) lives, which in turn may do a lot to set the affordances of our culture. As I say in a post at the LPE blog that will roughly contemporaneous with this one,

[T]he ways we see one another and understand ourselves, the pictures of the world that we carry, and the “structures of feeling” in which we move and relate all deeply condition what we can do together, signally including the potentials and limits of our politics. These elements of culture aren’t autonomous, of course: They arise in good part from how we physically live and work together and, especially, how we communicate—how we jointly interpret the world—which in our time is deeply influenced by technological form and by legal structures of ownership and control. Think of broadcast networks, media platforms, attention-gripping algorithms, each a technological fact set within a web of regulation (or the pseudo non-regulation of laissez-faire). Much of our present culture of epistemic fragmentation, political animosity, and generalized mistrust is a side-effect of profit-seeking under these conditions, and of prior decisions to set profit-seeking as the organizing principle for the relevant technologies. But for all these aspects of what feels like determination, the mutual interpretation that makes culture is one of our key resources of freedom, and a necessary condition of any solidaristic politics.

I have come to think that a collapse in trust seriously impedes the prospects of the sorts of legal-political reforms that many readers of this blog think would make for a more democratic and humane society. I have also come to think that we should regard the resources of culture—a shared imaginary, you might say, or a structure of feeling—in the light of the “false commodities” that Karl Polanyi highlighted. Polanyi, recall, argued that money, the natural world, and social reproduction were all necessary conditions of common life which, if they were treated as commodities and therefore governed by conditions of profit, might break down and undermine common life generally. Although the specifics of his arguments are not always satisfactory, he was broadly right about this. We might think of culture in the same way. Ours is now pervasively commodified, from the biggest-budget spectacles to the algorithm-driven micro-interactions that have replaced so much of face-to-face socialization. We are living (or trying to live) with the results.

            This theme touches on one relatively small-bore textual issue that I’ll raise before closing. I appreciate the authors’ suggestion that “grifters” as a class of politician pose less systemic danger than more ideological actors because they just want to take advantage of the institutions, not destroy them. I’m reminded here of Fred Hirsh’s observation in Social Limits to Growth that market competition has an inherent instability based in the incentive to move from competing by the rules to revising the rules in favor of entrenchment, extra rents, etc. Corruption and opportunism has the same colonizing logic, so the willingness to do new and especially destructive things to get especially rich (plus success in doing so) seems to indicate a species of grifter that is also an institution-breaker. Or so the headlines suggest to me.

            I’m very sympathetic to the book’s concluding turn to a wish for more responsive parties. I think this, along with easier constitutional amendment, is the major political-structural path to a more adequate democracy. The democratic gamble is always that more power in organized ordinary people is better than the alternatives—intrinsically better and instrumentally more likely, overall, to result in politics that can address the state of everyday life. My comments have sketched reasons to worry about our capacity to persuade one another of this today.

            Thanks again to Balkinization for the chance to respond to this stimulating and incisive book, and thanks as well to the authors for writing it.

Jedediah Britton-Purdy

Raphael Lemkin Distinguish Professor, Duke University School of Law

purdy@law.duke.edu