More Fiscal Mismanagement

David Super

              Happy New Year!  I wish you all a joyous, fulfilling, and constitutionally compliant new federal fiscal year.

              Hey, a guy can hope, right?  The dawn of a new federal fiscal year seems a good time to survey the Trump Administration’s latest maneuvering to wrestle the power of the purse out of the hands of a rather snoozy Congress.  And the news is not good.

              On the last Friday of fiscal year 2026, the Administration announced the “pocket rescission” of $810 million of appropriated funds for a variety of programs it dislikes.  A “pocket rescission” is a scheme concocted by OMB Director Russell Vought under which the President submits a “special message” to Congress under the Impoundment Control Act of 1974 requesting rescission of the funds but does so too late in the fiscal year for Congress to act before the funds subject to the request expire.  Under Director Vought’s theory, the submission of the request authorizes the Administration to withhold these funds (although he is unable to identify any provision of the Act that grants this permission) and then the funds expire by the terms of their original appropriation without further action by Congress.  This is legally unfounded, as the Government Accountability Office (GAO) has repeatedly noted.  Even Senator Susan Collins declared it “illegal” (not just “concerning”).  Director Vought clearly has not “learned his lesson.” 

              The Administration reportedly is telling reporters that the Supreme Court upheld “pocket rescissions” last year.  That is false.  The Administration impounded roughly $10 billion in foreign aid funds, about half of which it included in a late-year “pocket rescission” request.  A district court found the entire impoundment unlawful and ordered all the Administration to spend all the funds, whether or not they were included in the “pocket rescission”.  The Administration sought a stay only for the funds covered by the “pocket recission”, arguing that the Impoundment Control Act precluded suit under the Administrative Procedure Act.  On its shadow docket, the Supreme Court granted the requested stay, emphasizing that the litigation was “at [an] early stage”, that its “order should not be read as a final determination on the merits”, and that its stay only “reflects our preliminary view, consistent with the standards for interim relief.”  The Court found that the Administration’s jurisdictional arguments were sufficiently substantial that, combined with “the asserted harms to the Executive’s conduct of foreign affairs”, a stay was warranted.  This action should be read in the context of the Court’s previously stated strong resistance to granting preliminary relief against the government in spending cases because “the funds cannot be recouped and are thus irrevocably expended.”  Nothing in the Court’s short, unsigned order suggests that “pocket rescissions” are lawful:  it exclusively discusses procedural concerns.

              The furor over the “pocket rescission” risks obscuring the broader pattern of the Administration’s impoundments of appropriated funds.  The Administration did not begin impounding the $810 million on September 26:  the only reason the funds were still there to be impounded on that date is because the Administration had been refusing to spend them throughout the fiscal year.  Whenever it decided to withhold the funds – likely at the very beginning of the fiscal year – the Impoundment Control Act required the Administration to send a “special message” to Congress proposing rescission and to abide by Congress’s response. 

Moreover, the Administration has withheld a great deal of appropriated funds without public announcement.  Some of this results from the actions of ideologues running particular agencies.  Some results from a variety of actions OMB has taken to make it illegal for agencies to spend moneys Congress appropriated.  In particular, OMB is exploiting its largely ministerial power to “apportion” appropriated funds to agencies before they are spent.  Early in the 20^th Century, Congress required “apportionments” to prevent agencies from blowing through their entire annual appropriation in a few months and then returning to Congress for more. 

In many cases, OMB has been attaching unmeetable conditions to its apportionments or effectively apportioning far less than Congress provided.  Some of this has triggered litigation, but the procedural minefields the Supreme Court has constructed have slowed these cases’ progress.    

              One puzzle in the Administration’s announced “pocket rescission” is that it purports to be pulling back far more money from some accounts than its previous reports had shown remaining in those accounts.  This could mean it is breaching contracts with grantees en masse again.  Victims of such breaches last year sued but soon found themselves smothered in procedural obstacles preventing them from receiving a prompt decision on the legality of the Administration’s actions.

              Another possibility is even more devious.  The accounts in question provide funds for multiple fiscal years.  In these programs, Congress departs from its usual pattern of appropriating funds only for a single year at a time so that the Administration will have flexibility to respond to irregular need.  Thus, if a surge in need causes the Administration to exhaust the funds expiring in a given year, it can spend funds expiring a year or two later. 

              The Trump Administration apparently is reversing this pattern.  It seems to be reattributing obligations made against funds expiring this year to appropriations for future years.  That increases the amount of funds that will lapse without being spent this year while depleting the resources available in future years.  The next administration may take office in 2029 and discover that it lacks the funds to meet that year’s needs because the Trump Administration gratuitously spent those funds in earlier years to allow more appropriations expire in those years.  Like so many of this Administration’s abuses of discretion, this is likely to result in Congress writing more prescriptive laws giving future administrations less authority to adapt to unanticipated events.  It is enough to make one Against Flexibility. 

              To be clear, many of the Administration’s actions are not mere jockeying for policy advantage:  they are lawless.  The last several years’ appropriations acts, including the one President Trump signed in February, have included prohibitions on spending any government funds to implement any funding cuts that the President proposed and Congress rejected.  (This year, it was section 739 of Division E of Public Law 119-75.)  Obviously OMB, and likely other executive agencies, have been doing just that.  Spending federal money in violation of the requirements of appropriations acts violates the Anti-Deficiency Act, which carries criminal and other penalties. 

              We should not leave the subject of withholding funds before considering what may be the Administration’s most bizarre impoundment of all.  Section 10065(a) of the One Big Beautiful Bill Act, President Trump’s 2025 mega-bill written entirely by Republicans and passed entirely with Republican votes, “appropriate[s] for fiscal year 2025 … $256,657,000, to remain available until September 30, 2029, for necessary expenses for capital repair, restoration, maintenance backlog, and security structures of the building and site of the John F. Kennedy Center for the Performing Arts.” 

To date, the Kennedy Center’s board, chaired by one Donald J. Trump, Sr., apparently has spent none of these funds.  One would think there is plenty of time as the funds remain available for almost three more years.  The Administration, however, has been encouraging speculation that it might tear down the Kennedy Center for supposedly being structurally unsafe.  Neither the Administration nor the Kennedy Center’s board has released any comprehensive itemization of the hazards it perceives in the Kennedy Center, much less an explanation of why those problems cannot be fixed with more than a quarter billion dollars of public funds.

The permanent authorizing statute for the Kennedy Center requires that “The Board shall (A) present classical and contemporary music, opera, drama, dance, and other performing arts from the United States and other countries; (B) promote and maintain the John F. Kennedy Center for the Performing Arts as the National Center for the Performing Arts…; (D) provide facilities for other civic activities at the John F. Kennedy Center for the Performing Arts; (E) provide within the John F. Kennedy Center for the Performing Arts a suitable memorial in honor of the late President…[and] (G) with respect to the building and site of the John F. Kennedy Center for the Performing Arts, plan, design, and construct each capital repair, replacement, improvement, rehabilitation, alteration, or modification necessary to maintain the functionality of the building and site at current standards of life, safety, security, and accessibility...”. 

Failure to perform these functions might be excused if Congress had made it impossible by failing to appropriate sufficient funds.  But Chairman Trump and his colleagues (almost all of whom he appointed) would have no defense for blatantly neglecting these duties by destroying the Kennedy Center as long as vast sums are sitting unused in the Treasury after being appropriated for just this purpose.

The Kennedy Center provides a useful illustration of the pattern in most impoundment cases.  The principal illegality is not a violation of the Impoundment Control Act, which is primarily a set of rules of congressional procedure.  Nor is the illegality always a violation of the appropriations act:  some do mandate spending the full amounts provided, but many do not if the Administration can fully accomplish the appropriation’s specified purposes with less.  Impoundments most commonly are illegal because they lead to violations of the permanent statutes establishing the program in question.  Nothing in the Impoundment Control Act or anywhere else provides a sweeping exemption for violating the Kennedy Center’s authorizing statute or other analogous laws.

@DavidASuper.bsky.social @DavidASuper1

Drakeman’s Faint-hearted Originalism

Andrew Koppelman

Donald Drakeman’s impressive historical research in his new book, The Free Exercise Clause and the Rights of Conscience, poses a formidable challenge to the idea that the original meaning of the Free Exercise Clause mandates religious exemptions from generally applicable laws.  He has uncovered important and surprising new evidence of that meaning.  This book will pose a sharp test of whether the Supreme Court’s self-styled originalists, who favor such exemptions, actually care about evidence.

I’m not a historian and can’t judge Drakeman’s historical account.  But I can say something about what courts should do about them, if he is right.  They are not sufficient reason to revolutionize our constitutional rules.  Drakeman himself shrinks from some of his own conclusions, which give religion even narrower protection than he thinks his research entails.  Justice Antonin Scalia famously wrote that “in a crunch I may prove a faint-hearted originalist,” because “[i]n its undiluted form” originalism “is medicine that seems too strong to swallow.”  Drakeman doesn’t admit it, but he too is a faint-hearted originalist, and the point at which he faints is idiosyncratic and driven by his presentist political judgments.  His idiosyncrasy shows the limits of originalism: does it ever make sense for us to radically change our law because of new historical research?

I elaborate in a new piece at Canopy Forum.

The Thirty-Ninth Congress Included Persons Illegally Present in the United States in the Basis of Representation

Guest Blogger

Michael L. Rosin

You need to know only one number from the 1860 census in order to understand why Northern Republicans in the Thirty-Ninth Congress so expansively embraced aliens in the basis of representation they were reshaping for the apportionment of seats in the House of Representatives.

The 1860 census counted only 6% of the foreign born residing in the eleven states that would rise in rebellion. The remaining 94% of the foreign born resided in the states that did not. (See p. xxix. For further details see pp. 85–87.) Any proposal to exclude significant numbers of the foreign born from the basis of representation would shift power away from the loyal states to the states that had risen in rebellion.

There was, however, one segment of the foreign born who resided almost entirely in the states that had risen in rebellion: enslaved persons of color brought into the United States in contravention of the 1807 Slave Trade Act. The 1819 Slave Trade Act “authorized” the President of the United States was “to make such regulations and arrangements as he may deem expedient for the safe keeping, support, and removal beyond the limits of the United States, of all such negroes, mulattoes, or persons of colour[.]”

Such persons who had been illegally imported into the United States were, nevertheless, not legally present in the United States. Excluding them from the basis of representation would not shift power to the states that had risen in rebellion. In fact, it might even shift power away from those states and that would have been politically advantageous to Northern Republicans.[*] Of course, no one in the Thirty-Ninth Congress even suggested that these formerly enslaved persons – who had been illegally imported into the United States – be excluded from the basis of representation.

The Census Bureau’s recent Proposed Residence Criteria for apportionment of House seats among the states based on the 2030 census states

Given the historical meaning of “usual residence” as tied to allegiance, durable permission from the sovereign to settle within the United States, and establishment of domicile within the United States, the Census Bureau proposes to include lawful permanent residents within the apportionment base, while excluding from the apportionment base illegal aliens and aliens whose legal status is less durable and indefinite in length than lawful permanent resident status. (See p. 57526. Emphasis added)

Chin and Finkelman have demonstrated the Thirty-Ninth Congress was aware that there were  formerly enslaved persons who had been brought into the United States in violation of the Slave Trade Acts and were still not legally present in the United States. (See pp. 2243, 2259–60.) That Congress could hardly have meant to exclude them from the basis of representation. Yet that is exactly what would have happened under the terms of the Census Bureau’s recent Proposed Residence Criteria.

Michael Rosin is an independent scholar whose work focuses on the electoral college and everything it is built on. You can reach him by e-mail at mlrosin@att.net. 

Constitution Day Talk at Stanford: Technology and Constitutional Rot

JB

On September 17th, I gave a talk at Stanford Law School based on my article, Technology and Constitutional Rot. My thanks to Michael McConnell, Jud Campbell, and Duncan Hosie at Stanford's Constitutional Law Center for the opportunity. Here is the video:

Call for Papers -- Conference at the University of Illinois on Comparative Constitutional Moments

Jason Mazzone

The University of Illinois, the University of Bologna, and Johns Hopkins SAIS regularly sponsor a conference series on Constitutional History: Comparative Perspectives. The next conference will be held in Champaign, IL on March 8-9, 2027. The theme of this conference is Constitutional Moments. The goal is to draw on experiences from around the globe to shed light on the theory of constitutional change famously articulated by Professor Bruce Ackerman. The conference keynote speaker will be Manuel José Cepeda Espinosa, former President of the Constitutional Court of Colombia.

We invite scholars to submit proposals for papers to be presented at the conference. Accepted papers will be published in an edited volume. Details about the conference and the submission procedures are available here. The submission deadline is October 20, 2026.

The Looming 14/4 Crisis

Gerard N. Magliocca

It appears likely that Democrats will control at least part of Congress next year. It is also likely that we will hit the debt ceiling again during the next Congress. What will happen then?

There is a lively discussion about whether the President has some power to prevent a debt default under Section 4 of the Fourteenth Amendment. No President has ever tested that theory. But this President might. It would just be another in a long series of unilateral executive actions to deal with an emergency. If he does, there is almost no precedent to guide the courts or the financial markets.

I've written about 14/4 before when the issue was discussed during the Obama and Biden Administrations. My position will be the same under this Administration. The upshot, however, is that people better start taking a hard look at this question now before a showdown occurs.

Balkinization Symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Mark Tushnet and Bojan Bugaric's new book, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

1. Jack Balkin, Introduction to the Symposium

2. Sabrina Ragone, Constitutionalism and Its Discontents: A Comparativist’s Take

3. Laura Gamboa, Constitutionalism in Times of Democratic Backsliding

4. Jedediah Britton-Purdy, The (not so) Secret Life of Constitutionalism and Its Discontents

5. Roberto Gargarella, Democratic constitutionalism and the end of class-based societies

6. Fernanda G. Nicola, Constitutionalism and the Discontents of Judicial Power

7. Mark Graber, The Enduring Significance of Peggy Sue Got Married (and Constitutionalism and its Discontents)

8. Sandy Levinson, Constitutionalism's Contemporary Critics

9. Martin Loughlin, Discontent with Constitutionalism and Its Discontents

10. Colm O’Cinneide, Letting Go of Faith in Constitutionalism

11. Madhav Khosla, Constitutionalism and Its Contents

12. Mark Tushnet and Bojan Bugaric, Response to Our Readers

Balkinization Symposium on The Global Political Economy of Artificial Intelligence-- Collected Posts

JB

Here are the collected posts on our Balkinization Symposium on The Global Political Economy of Artificial Intelligence

1. Jack Balkin, Introduction to the Symposium 

2. Valérie Bélair-Gagnon, The Fragmentation of Truth

3. Ignacio Cofone, Public Institutions Can’t Outsource Their Reasoning

4. Amy L. Stein, The Tech Energy Transition

5. Ava Liu, Defining Predistribution

6. Claudia E. Haupt, Professional AI’s Dual Trust Problem

Are we Experiencing a Constitutional Revolution?

Mark Graber

Some thoughts on constitutional revolutions in American history, whether Americans are experiencing a constitutional revolution at present, and what would have to happen for the attempted Trump constitutional revolution to become entrenched. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7461620

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.

Taming the 1960s

Gerard N. Magliocca

My draft paper on the Senate Subcommittee on Constitutional Amendments (aka the Bayh Subcommittee) is now available. Comments are most welcome.

Stuck in the Middle With You: The Constitution Between Regimes

JB

I have uploaded my latest essay, Stuck in the Middle With You: The Constitution Between Regimes, to SSRN. Here is the abstract:

This essay uses the theories developed in my my 2020 book, The Cycles of Constitutional Time,  to explain the current moment in American democracy (the fall of 2026).

The United States is living through a constitutional interregnum: the Reagan regime has exhausted itself, but no successor has yet emerged. The country is experiencing “regime suspension,” in which the two major parties possess different but incomplete resources for political reconstruction. Republicans have a powerful movement infrastructure but no demonstrated durable national majority. Democrats remain electorally competitive but are still primarily a coalition of interest groups and lack a comparably coherent social movement capable of organizing a new constitutional regime.

The situation is made worse by severe polarization and constitutional rot—the process by which a republic becomes less democratic, less responsive to popular will, and less oriented toward the public good. Donald Trump has attempted to compensate for the political resources he lacks through a strategy of “reconstruction through corruption”: expanding presidential power, installing loyalists and sycophants, weakening institutions, selectively enforcing the law, intimidating opponents, rewarding cronies, and converting public authority into an instrument of personal and oligarchical power.

The Roberts Court has repeatedly facilitated Trump’s efforts. That is not because the Court actively supports Trump, but because the Court’s conservative majority is realizing long-standing conservative legal commitments to increasing presidential power, deregulating campaign finance, weakening voting-rights protections, narrowing anti-corruption laws, and defanging the administrative state. These ideological projects, combined with the Court’s desire to avoid direct confrontation with Trump, have created an opportunity structure for executive aggrandizement.

Constitutional rot creates a widening gap between constitutional institutions and the constitutional values these institutions were designed to serve. The essay explains how polarization makes rot difficult to remedy, and why advanced rot makes constitutional crises more thinkable and more likely.

The essay identifies several possible directions the constitutional system could take: a new Republican or Democratic led regime, a prolonged period of preemptive politics, competitive authoritarianism, constitutional breakdown, or the development of anti-corruption reform movements in both parties, as occurred during the Progressive Era. The most plausible democratic path resembles the Progressive Era: state and local experimentation, cross-party reform coalitions, institutional rebuilding, and a shift from culture-war issues toward questions of affordability, wealth inequality, concentrated economic power, industrial policy, and class. Renewal remains possible, but it is neither guaranteed nor imminent; it requires sustained mobilization, constitutional and institutional reform, protection of vulnerable groups, and a long time horizon. It took many decades for constitutional rot to develop in the United States. Freeing ourselves from it may take many more.

Constitutional Law and “Common Sense” Gun and Drug Regulation

David Pozen

For the Supreme Court Review, Joseph Blocher and I have a new paper that diagnoses a mismatch between the growing scholarly consensus on gun and drug regulation (generally favoring pragmatic approaches focused on reducing harms) and the constitutional rights doctrine on these subjects (generally either maximalist or minimalist). The Court’s most recent Second Amendment decisions are the point of departure. Here is the abstract for The Excluded Middle of Law: Constitutional Drivers of Extremism in Gun and Drug Policy, a draft of which is now up on SSRN:

American drug and gun regulation is difficult to defend from almost any perspective. Federal and state laws heap criminal penalties on a small subset of users, burden many others whose possession poses no direct threat to third parties, and yet fail to prevent staggering social harms. To address these pathologies, a long line of scholars and advocates has called for something in between punitive prohibitionism and laissez-faire capitalism: grudging toleration, harm reduction, liberty balancing, community-based alternatives, and so on. Among the forces pushing policy away from these pragmatic approaches, however, is U.S. constitutional doctrine.

Using the Supreme Court’s decisions in United States v. Hemani and Wolford v. Lopez as a jumping-off point, this Article explores the role of constitutional law in driving drug and gun policy to the extremes. Hemani holds out hope for limited forms of pragmatism to sneak into Second Amendment analysis through the side door. But in nearly inverse ways, the Article argues, the Court’s jurisprudence has complicated efforts in both fields to reach a more effective and humane regulatory middle ground.

Constitutionalism and Its Contents

Guest Blogger

Letting Go of Faith in Constitutionalism

Guest Blogger

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.

Our Unconstitutional Reapportionment Process

Gerard N. Magliocca

One irony about the new proposed list of census questions for 2030 is that the only question that may be constitutionally required as an original matter is not included. That question would ask Americans for information pertaining to Section 2 of the Fourteenth Amendment. As I laid in out in a paper published before the 2020 census, our current apportionment process is unconstitutional. Maybe this time around one or more states will raise that claim at the census stage or following the next reapportionment.

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.

Constitutionalism's Contemporary Critics

Sandy Levinson

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

For some years, the American legal academy has shared two basic presuppositions.  The first is that the United States Constitution basically constitutes American identity as well as establishing a particular political system. This means, among other things, that is that their most important task is to search for the uniquely correct theory of interpreting the national Constitution (and therefore, what it means to be “an American”).  I have praised Jack Balkin's Living Originalism as not only the best book written on American "constitutional interpretation," but also, I hoped, the last book that would in fact be published on the subject.  Alas, that has not been the case. If anything, the “interpretation wars” have only become more intense, given the insistence of a majority of the Supreme Court, in good faith or not, on “originalism” as the royal road to understanding the Constitution.is that their most important task is to search for the uniquely correct theory of interpreting the national Constitution. 

But a second presupposition, is that the Constitution is worthy of great praise, indeed, an empirical cause for much of what has gone right for the United States over the past 239 years.  The Founders are often praised as brilliant architects of an effective system.  This entails for many the belief that “constitutional design” is itself a crucial topic, especially in the post-World War II era when most countries, with the glaring exception of the United States, were engaged in significant efforts at what might be called “transformations” of their foundational documents or, in the case of “post-colonial” countries, drafting brand new constitutions. 

The Lost Art of the Deal

David Super

      If Vice President Vance was sincere this Spring when he reported that negotiations had failed because the Iranians did not accept the U.S. proposal, I have grave doubts about whether he understands even the rudiments of negotiations.  The news media’s credulous statement that “marathon negotiations” had failed after only twenty hours on a single day raised similar questions about the reporters and editors involved.  And the widespread tendency of progressives to insist that all bad outcomes could have been avoided if Democratic leaders would only “just say ‘no’” suggests a level of naivete that will pose a serious obstacle to maintaining the movement’s unity and effectiveness.  Although I am not a scholar of Negotiation, I have participated in, or been close to, a lot of high-stakes legislative (and litigation) deal-making, both successful and failed.  The pervasive misunderstanding of what public policy negotiations involve prompt me to want to survey some of the most egregious errors. 

      Two widespread fallacies are actually the opposites of one another:  negotiation as magic and negotiation as farce.  Diplomacy is no magic elixir that can bridge any gap; many differences are too fundamental, and many parties believe the consequences of refusing a deal are entirely manageable.  Putin has repeatedly insisted that Ukraine cease to exist as an independent country; Ukrainians do not wish to be annihilated and absorbed into a corrupt dictatorship.  No deal is possible.  Most lapses in appropriations result from both parties’ leaders’ beliefs that their adversaries would suffer greater political damage from a partial government shutdown; no sliver-tongued negotiator would get those leaders to accept a deal until actual experience caused their political expectations to converge.  A skilled negotiator can develop rapport with a great many counterparts, but a deal still needs approval by their respective principals. 

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.

Constitutionalism and the Discontents of Judicial Power

Guest Blogger

Democratic constitutionalism and the end of class-based societies

Guest Blogger

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

Roberto Gargarella

For many years, I have followed the work of Mark Tushnet with admiration. Lately, his contributions have been strengthened through his collaboration with Bojan Bugaric. They have been offering us constitutional studies that are informed by contemporary doctrine, marked by a strong attention to comparative law, a consistently critical eye, and a progressive perspective. Characterized by these traits, the new book that Tushnet and Bugaric have just published, Constitutionalism and its Discontents, represents a very good continuation of their previous book, Power to the People (Oxford UP).

Regarding Constitutionalism…, the first thing I want to say is that I share many of the main lines of analysis that are here presented. This is relatively obvious, on the one hand, given that the approach to constitutional law that I propose in my own studies—that of the "law as a conversation among equals"—is taken up and analyzed in some detail in this book. Beyond that convergence, and on the other hand, I have long been drawn to a "thin" reading of constitutionalism, such as the one they propose: an approach that is modest in its ambitions; aware of the inherent limitations of institutional reforms; critical of traditional modes of judicial review; skeptical of resorting to the "old toolbox" of constitutionalism (i.e., more rights, more courts) to solve the new problems we face; and radically more democratic in its spirit.

The (not so) Secret Life of 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). 

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.