Separation of Powers: How to Preserve Liberty in Troubled Times -- A Critical Reading

Guest Blogger

Roberto Gargarella

Separation of Powers. How to Preserve Liberty in Troubled Times, by Cass Sunstein. (The MIT Press, 2026)

Introduction

Separation of Powers is the latest book published by Cass Sunstein (I am writing this review in March 2026). As expected, the book, which deals with a well-chosen and highly relevant subject, brings together many of the virtues and problems that distinguish Sunstein’s most recent work. Let me begin with the virtues: it is a clear, didactic book, written by a brilliant author, full of ideas, and one of the most knowledgeable about the technical literature and jurisprudence of our time. To all this, we can add another advantage, visible in the author's latest works, which is that Sunstein incorporates into his qualified approach the experience and knowledge accumulated during his time in public service (Sunstein served as administrator of the White House Office of Information and Regulatory Affairs (OIRA) between 2009 and 2012). Regarding its problems, I will limit myself to pointing out one particular difficulty, because it underlies this entire new book. Sunstein has been developing a peculiar mode of argumentation, in which he asserts a thesis or describes a fact, only to later begin qualifying his assertions until he shows the plausibility of the contrary thesis or description. This form of ‘back-and-forth’ argumentation reaches an extreme in this book. This is to the point that what could be thought of as the very central thesis of the entire book, that is a statement about the fundamental value of the separation of powers -against the Schmittian defense of a discretionary executive- is refuted on the very last page of the text, where he states: ‘Nothing in this book can be counted as an objection to the grant of a high degree of discretionary power to the president’ (p. 128). For my taste, too much.

Let me now critically examine some of the central points of this timely book, which I would like to comment or challenge. I will divide my study into two parts: the first mainly focused on the issue of democracy, and the second mainly related to the Executive Branch.

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.

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.

On the idea of democracy underlying Aileen Kavanagh's The Collaborative Constitution - Part Two

Guest Blogger

Roberto Gargarella

PART II

The Actual Practice of our Constitutional Democracies

In the previous section, we analyzed the -Madisonian- conception of democracy underlying The Collaborative Constitution.  We also examined that this "old" conception is of little use in describing and thinking about the "new constitutional times", marked by strong democratic expectations and demands. We also argued that in this new context -social, legal, institutional- the collaborative and cooperative behaviors that Kavanagh's book calls for are not to be expected. Now: What could Aileen Kavanagh say to those of us who believe that her reliance on the cooperative attitudes of public officials is unwarranted? What could she answer us, in the face of our skepticism? First of all, she could tell us that many of the public behaviors she prefers or postulates as necessary are behaviors that already occur or have already been shown to be possible: in a way, they are already part of existing practice (particularly, we might say, in Britain). For Kavanagh -we have explored this already- her "collaborative account" "is grounded in practice."[9]

A second reply that Kavanagh could try, which in part complements and specifies the previous one, is related to the presence of "unwritten constitutional norms" that "lie at the foundation of the collaborative constitution" (ibid., 8). By such, she refers to "the rules, norms, and practices of constitutional government accepted as obligatory by those concerned in the working of the constitution" (ibid.). The usual or traditional character of such practices would allow us to think of an even stronger framework: a "constitutional culture." This constitutional culture, in short, would allow us to speak of an already available "social capital" -certain "tacit understandings"- that would turn collaborative constitutional behaviors into expected behaviors (rather than unexpected, superhuman, or angelic behaviors). [10]

Back to the sources: How to interpret the Constitution, according to Cass Sunstein (Part I)

Guest Blogger

Roberto Gargarella

Back to sources

In what follows, I shall present and critically examine the book How to Interpret the Constitution, recently published by the influential jurist Cass Sunstein. I shall divide my study into two parts: the first one, mainly descriptive, where I shall present the book under analysis; and the second one, more evaluative, where I shall offer a critical review of Sunstein’s work.  

Sunstein’s new book is a simple, brief, and exciting work through which the Harvard professor deals with a complex subject, such as constitutional interpretation -perhaps the most crucial subject in the theory of law. In order to explore this challenging issue, Sunstein invokes authors, concepts and principles he had already discussed and defended long ago. In this sense -one could claim- Sunstein "returns to the sources" of his academic career. 

This “return to the sources” may be considered a cause for celebration because many of those bases -I shall maintain- were very good. They hark back to a Sunstein committed to robust ideas of democracy, social justice, and equality. In any case, despite the attractiveness of the main theme under study, and the interesting approach proposed by Sunstein on the subject, the balance of the work is uneven: the text is as attractive in some of its conclusions as it is fragile in some of its foundations.

Constitutionalism and Its Discontents: A Comparativist’s Take

Guest Blogger

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

Sabrina Ragone

There is much to admire in Mark Tushnet and Bojan Bugaric’s Constitutionalism and Its Discontents, beginning with the ambition and provocation reflected in its title.

The book revolves around a fundamental paradox: constitutionalism seeks simultaneously to empower democratic self-government and to constrain the exercise of that very power. The three parts explore different manifestations of this tension: through the rules of ruling in Part One; through programmatic constitutionalism in Part Two, where the European Union and its economic constitution provide an example of how constitutional commitments intended to enable collective projects may themselves become constraints to democratic choices; and, in Part Three, through efforts to forestall or combat democratic decline, eventually shifting the focus from constitutional design to political parties and the political conditions on which democratic constitutionalism depends.

The paradox is further complicated by a recurring insight of the book: constitutional remedies aimed at addressing one source of discontent may end up exacerbating another. The breadth of the inquiry is one of the book’s strengths, together with the plethora of concrete examples and imaginary situations, which make even complex theoretical arguments accessible and the book enjoyable to read; perhaps precisely for this reason, it also leaves the reader wanting more, as several of the questions it opens would themselves deserve fuller exploration.

On the idea of democracy underlying Aileen Kavanagh's The Collaborative Constitution - Part One

Guest Blogger

Roberto Gargarella

Introduction

The Collaborative Constitution is one of the most interesting contributions produced by the legal academia in recent years.[1] It is a clear, easy to read and at the same time profound book, in which its author, Professor Aileen Kavanagh, investigates what is the best and most justified way to protect rights in a democracy. The book offers lucid answers to the dilemmas posed by the problem under examination. And it does so, at the same time, in a forceful and challenging way, which serves the author to clearly differentiate her views from many of the unfertile dichotomies that prevail in contemporary doctrine.  In her work, Kavanagh proposes to understand constitutionalism as "a collaborative enterprise between all three branches of government, where each branch has a distinct but complementary role to play whilst working together with the other branches in constitutional partnership" (Kavanagah 2023, 1).[2] Her position implies going beyond traditional “binary options,” like the following: to think that the task of protecting rights corresponds primarily to the courts, or to legislatures; to conceive of institutional work either as "the solitary domain of a Herculean super-judge” or in relation to “the dignified pronouncements of an enlightened legislature" (ibid., 7); to approach constitutional law as the "political constitutionalists" do, or in the opposite way, following the criteria of the "legal constitutionalists" (ibid., 3).

Back to the sources: How to interpret the Constitution, according to Cass Sunstein (Part II)

Guest Blogger

Roberto Gargarella 

Some critical notes

In the first part of this paper, I described some of the central features of Cass Sunstein's new book, How to interpret the Constitution. In that initial part, I referred to the different interpretative theories presented by Sunstein in his book, and also to the method he proposed for selecting a theory of constitutional interpretation from among them. The method in question was the Rawlsian "reflective equilibrium", built on the basis of certain "fixed points" or paradigmatic judicial cases (say, in the case of American law, judicial decisions such as Brown or Griswold), and also with the help of other theoretical "fixed points" (in his proposal, deliberative democracy and the "anti-caste principle"). Having completed that descriptive introduction, I will now present the second part of my analysis, which will be of a more evaluative and critical nature. I will first make two brief introductory remarks, and then move to a more substantive examination of Sunstein’s new work.

Will “Liberal Constitutionalism” Survive the Joint Attacks from “Illiberal” and “Democratic” Constitutionalism?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Sandy Levinson

            I have been teaching courses on American constitutional law for almost 50 years.  During most of those years, it was a given first that the United States was an exemplar of “liberal constitutionalism” and that, perhaps more importantly, “liberal constitutionalism” was the only valid form of constitutionalism.  What did “liberal constitutionalism” entail.  Roughly speaking, it is a notion that a constitution, along with setting out the basic structures of the polity, at the same time establishes limits on what the polity can do.  These are commonly viewed as “rights,” and a major purpose of a constitution is thought to be the safeguarding of rights against what is often, especially in the United States, termed the “tyranny of the majority.”  One way of safeguarding minorities against such tyranny is to make it hard for popular majorities in fact to legislate.  Thus we have notions of both separation of powers and checks and balances to set up a variety of veto-gates to serve this purpose.  After all, for any legislation to pass, it must not only procure sufficient support in two quite different legislative branches, but gain as well presidential signature.  To be sure, Congress can overrule a presidential veto, but, over our entire history, presidents have been successful in sustaining their vetoes roughly 95% of the time.  Moreover, the very threat of a veto turns the legislature into a de-facto tricameral institution insofar as the House and the Senate alone cannot in fact work its will save in extraordinary situations.  But even if a bill does become a law, all of us are increasingly well aware that that is not the last step.  The federal judiciary, with the Supreme Court at its head, feels altogether free to exercise its own veto, based, of course, on often controversial readings of what limits are established by the Constitution itself.  

            I have for many years been critical of what I’ve called “our undemocratic Constitution,,” but there is no doubt that the Constitution was constructed by Framers extremely dubious about the capacity of “we the People” to engage in actual rule and, as importantly, was supported by most Americans who were taught from an early age to venerate the Constitution and view it as a basically sacrosanct scripture that defined what it meant to be American.  And, as suggested, even critics of one or another part of the Constitution—the electoral college, say—did not extend that criticism to the idea of “liberal constitutionalism” itself and to suggest to new countries writing their own constitutions after World War II that the United States Constitution represented the basic template of “constitutionalism” in general.

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 Mark Tushnet and Bojan Bugaric, Constitutionalism and its Discontents

JB

This week at Balkinization we are hosting a symposium on Mark Tushnet and Bojan Bugaric's new book, Constitutionalism and Its Discontents (University of Chicago Press, 2026).

We have assembled a terrific group of commentators, including Colm O'Cinneide (University College London), Laura Gamboa (Notre Dame), Roberto Gargarella (Torcuato di Tella University and University of Buenos Aires), Mark Graber (Maryland), Madhav Khosla (Columbia), Sandy Levinson (Texas), Martin Loughlin (LSE), Fernanda Nicola (American), Jed Purdy (Duke), and Sabrina Ragone (University of Bologna).

At the conclusion, Mark and Bojan will respond to the commentators.

Domesticating Constitutionalism

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

Samuel Issacharoff

At first glance, the work of Ros Dixon and David Landau on constitutional borrowing appears to be centered on the role of constitutions and courts in securing or compromising democratic governance.  As such, it is an invaluable contribution to the growing literature on comparative constitutional law, one whose institutional sophistication and deft international scale rewards the reader with nuance and insight.  At another level, however, Abusive Constitutional Borrowing bears witness to the breaching of what Madison termed “parchment barriers,” the aspirational commands of constitutional law that translate imperfectly into the realities of power and politics. 

The contemporary inquiry into comparative constitutional law takes shape after the fall of the Soviet bloc and transformative events in South Africa, Colombia, the Pacific Rim, and the list goes on.  In each case, a heady if unstable mix emerged featuring a new constitutional order, suddenly assertive constitutional courts, uncertain political power based loosely on an electoral mandate, and a felt need to at least gesture in the direction of the prevailing world consensus of rights and tolerance.  Constitutionalism defined the boundaries of what Dixon and Landau call the “democratic minimum core,” as well as the contested terrain of social rights.  In the face of unsettled political power, courts acting with a constitutional mandate took on an outsized role in defining the new world order.  The democratic core could serve as the lower bound of permissible regulation of politics, while rights claims provided the contested upper bound. 

In the upswing period of constitutionalism, borrowing lent legitimacy to the assertion of exacting judicial review in countries bereft of any tradition of powerful courts.  In the heyday of this borrowing, courts around the world could learn from the basic structures doctrine of the Indian Supreme Court, from the wise preservation of political accountability by the Colombian Constitutional Court, from the sophisticated proportionality analysis of the South African Constitutional Court, and from the overall judicial stewardship over the transition from authoritarianism to democracy in countries around the world. 

Dixon and Landau chronicle the ebbing of the constitutional tide.  This is the moment in which, as they introduce the study, “increasingly dense” global constitutionalism coexists “with stagnation and backsliding in democratization …”  Although their focus is largely on the selective and acontextual use of doctrine in the service of illiberal aims, their book memorializes the fading of constitutionalism in the face of consolidated political power.  For all that comparative constitutionalists hail the 2010 decision of the Colombian Court denying President Uribe a chance at a third term in office, the intervening decade shows just what a momentary outlier that was.  The Colombian decision remains the only judicial intervention in Latin America denying an incumbent continued tenure, and has been followed by noteworthy decisions striking down any term limits on incumbents.  The “rhetorical triumph” of constitutionalism, their term, has repeatedly allowed a new form of anti-liberal electoral politics to claim the mantle not only of majority support but the authority of transnational fundamental principles of governance.

Constitutional Democracy in Crisis?

Mark Graber

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.