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.