Balkinization

Why Federalist #70 is Wrong

2026-10-21T11:50:10.571-04:00

In March, I'll give a lecture at Villanova on "The Real Unitary Executive Problem." My argument will be that the Framers erred by creating a president who is both the head of state and head of government. America managed this problem fairly well through a series of norms and fictions that lasted until the end of the Cold War. Today, though, the original misunderstanding about executive power is doing significant harm. Most constitutional democracies reject the Framers' model. They instead have a ceremonial head of state (a monarch or a president) and a functional head of government (a prime minister). There are many advantages to this executive organization, but for now I want to concentrate on why the Framers failed to grasp this point. Federalist #70 contains Hamilton's argument for a single executive. He contrasted that model with two alternatives drawn from classical history and state practice. One involved "two or more executives of equal dignity." The other involving requiring a council (say, a formal Cabinet) to sign off on the decisions of a single leader. Neither of these frameworks, of course, describes the modern practice of having two unequal executives (one ceremonial and one functional). Hamilton acknowledged that Britain's executive authority was a third alternative. He argued, though, that the division between the Crown and the Cabinet was necessary because "it is a maxim, which has obtained for the sake of the public peace, that he is unaccountable for his actions, and his person is sacred." "But in a republic," he wrote, "where every magistrate ought to be personally responsible for his behavior in office, the reason which in the British constitution dictates the the propriety of a council not only ceases to apply, but against the institution." Hamilton was simply wrong here. Executive bicameralism divided along a formal/ functional line can be justified without reference to accountability. It is true that there was no theory on that point until Walter Bagehot wrote The English Constitution in the 1860s. But the Framers did have the example of George Washington, who very much played a ceremonial role at the Constitutional Convention as the presiding officer. Part of the reason the Framers failed to understand the importance of separating (in Churchill's phrase) "pomp from power" is that they did not anticipate parties. Once parties emerged, though, there were practical efforts to do just that. They worked for a while but no longer do. I'll discuss that in a subsequent post.

The Even More Conservative Case for Class Actions?

2026-10-17T09:30:00.000-04:00

For the Balkinization symposium on Diego Zambrano, How Americans Enforce the Law (Stanford University Press, 2026).

Brian T. Fitzpatrick

How can the author of The Conservative Case for Class Actions say a bad word about a book that argues that private enforcement of the law is a vivid example of American exceptionalism?

I can’t. We conservatives are a patriotic lot; we shamelessly believe that America is mostly better than the rest of the world. In my view, this includes even our embrace of private enforcement of the law. As I wrote in a recent amicus brief I filed in the U.S. Supreme Court:

[P]rivate enforcement of the law is one of the things that makes the United States different—and better—than the other developed economies around the world. They rely on government to do everything for them. We don’t—and our markets are more nimble, innovative, and honest because of it. We get a bad rap for our litigiousness in this country. But it is merely the worst way to police the marketplace—except for all the others.

Much to my chagrin, the modern conservative movement has forgotten many of the virtues of private enforcement. In my book, I tried to remind them. The success has been mixed. Although conservatives are probably more enthusiastic about private enforcement right now than they have ever been during my lifetime, that’s not saying very much. There is little doubt that many, many conservatives still have a knee-jerk reaction against the plaintiffs’ bar.

Enter Professor Zambrano. Even though he is no conservative, his new book, How Americans Enforce the Law, may make the case for private enforcement even better than I did. Why? Because my book was all about policy: private enforcers have better incentives than the government, have better resources, are less captured, and are more diverse and decentralized. Worried about overenforcement? Don’t: the incentives of private enforcers are more easily adjusted than those of the government. But policy only gets you so far these days among conservatives—at least among conservative lawyers and judges—because formalism, i.e., textualism and originalism, is the coin of the realm. That’s not a bad thing, but it left a gap on my side of the aisle. Professor Zambrano has filled it with something I neglected: history. It could make all the difference.

In the years since my book was published, many conservative lawyers and judges have told me that, while they sympathize with my policy arguments, my conclusion that private enforcement of the law is almost always superior to government enforcement is hard to square with the Constitution’s separation of powers. This is because I acknowledged that private enforcement is often not very good at compensating people: for example, on average, consumer fraud class actions return money to only 9% of the people who comprise their classes. In my view, we shouldn’t worry about this so much because private enforcement serves another goal: deterrence of wrongdoing. But this is where the separation-of-powers folks cry foul: to the extent that we seek public ends like deterrence rather than private ends like compensation, they say we must do it through public officials. In particular, they say, if we delegate the task to private lawyers, then we have vested “the executive Power” outside the executive branch, appointed an “Officer of the United States” without going through presidential nomination, or outright interfered with the President’s responsibility to “take Care that the Laws be faithfully executed.”

In my view, these arguments add a lot of words to the Constitution that aren’t there. But the arguments have been taken very seriously nonetheless. For example, a federal district court judge recently ruled that the False Claims Act—which permits private citizens to sue those who defraud the federal government and to keep a portion of anything they recover—is unconstitutional on one of these theories. Although the Eleventh Circuit reversed, there is another challenge to the Act percolating in the Third Circuit. It’s not just the lower courts. There is keen interest in this at the Supreme Court: three Justices have said they are concerned about the False Claims Act, if not inclined to believe that it is unconstitutional. Some of these same Justices have already pared back standing doctrine for similar reasons.

But Professor Zambrano’s book should cause us to ask how these separation-of-powers theories can possibly be consistent with originalism. We all know that private rights were always privately enforced through the common law, but, as Professor Zambrano explains, the same was true even of public rights. Illegal grazing or hunting on public lands? Illegally importing goods? Violating quarantines? Well before the founding, anyone could sue over such things, keep half the fine, and remit half to the government. The plaintiff need not have suffered a particularized injury; he was called an “informer” because he was informing on the wrongdoer, not seeking compensation for injury. Indeed, these laws were often dubbed “penal” because they required the defendant to pay penalties, or, as we still know them today, “qui tam”—Latin for “he who brings an action for the king as well as for himself.” Though these laws are ancient, they are by no means relics. As Professor Zambrano explains, “the first Federal Congress used informer provisions and qui tam to implement nearly all of its enumerated powers, from military matters to patents to taxation.” The False Claims Act and our citizen-suit statutes are merely their modern offspring. How, then, can they be unconstitutional? They can’t.

Because Professor Zambrano is not writing to conservatives like I was, he doesn’t use this history to challenge these conservative judicial impulses in his book; he leaves that to a related law review article. He also ends up more sanguine about government enforcement than I am. He says that, when we create new laws, we should presume that private enforcement is unnecessary and that public enforcement is enough. Only if public capacity is insufficient, public regulators are captured, and private citizens know more about the wrongdoing than the government does should we let private enforcers in, too. But, as I explained in my book, I think that gets things exactly backwards: public capacity is almost always dwarfed by private capacity, public regulators are almost always captured at least to some extent, and, as Friedrich Hayek famously showed, millions and millions of dispersed private citizens will almost always know more than any group of government bureaucrats. If anything needs special justification, it is more government, not less.

Still, I will give Professor Zambrano credit for identifying a problem with private enforcement that I did not address in my book: private litigants who are not motivated by money but by something else—say, revenge or ideology. As I noted, the case for private enforcement depends on the superior incentives of profit-motivated private litigants and the ease with which those incentives can be adjusted to increase or decrease litigation for the public good. But if private litigants are not motivated by money, then what? No amount of adjustment can control them. Instead, Professor Zambrano argues that, in several areas of the law, private litigants have outright wreaked havoc. I agree that this is a fruitful area for future study.

In the meantime, Professor Zambrano has given those of us on my side of the aisle a lot to think about. I hope we listen.

Brian T. Fitzpatrick is the Milton R. Underwood Chair in Free Enterprise and a Professor of Law at Vanderbilt Law School. He can be reached at brian.fitzpatrick@vanderbilt.edu.

Review Essay, Diego Zambrano, How Americans Enforce the Law

2026-10-16T09:30:00.000-04:00

For the Balkinization symposium on Diego Zambrano, How Americans Enforce the Law (Stanford University Press, 2026).

James E. Pfander

In How Americans Enforce the Law, Diego Zambrano sets out to document and to explain that distinctively American legal institution: the private lawsuit aimed at the enforcement of public law. In a book length treatment of the subject that combines careful study, elegant theorizing, and inspired description, Zambrano provides an exceptionally readable and engaging account of the history, current practice, and theoretical justification of private litigation. We get both the telling historical tidbit, in Zambrano’s account of the molasses trade in eighteenth century British North America, and the compelling tectonic explanation, in a theory of layered path dependence that helps us to see how we arrived at this point. With its account of laws, lawyers, and civil procedure, the book will appeal to longstanding students and to new initiates seeking a better understanding of what private civil litigation has come to mean in a country that contains multitudes. The author’s learning and vivid storytelling make this book both a pleasure to read and a major scholarly accomplishment.

Zambrano finds value in private enforcement. Not just its pedigree, which runs back to medieval England, and takes root in the colonial and founding eras in America. Not just in its lengthy list of supporters and defenders, which include such notables as Adams, Jefferson, Madison. Not just in the sheer breadth of its appearance in both state and federal legislation, what with Zambrano’s survey of some 10,000 such statutes at the state level. But also in its ability to deliver the enforcement goods. His contrast between the private enforcement model of America and the government enforcement monopoly in France leaves little doubt as to where his sympathies lie; Americans delivered more effective justice more quickly for the victims of this country’s massive oil spills than did the French bureaucracy for the victims of its major spill.

But Zambrano does not unstintingly praise our distinctively American model of private enforcement. As he observes,

[A]n English and colonial tradition of informer suits created an accepted template, weak bureaucratic capacity and wariness of government monopoly over enforcement periodically renewed its appeal, and the powerful lawyers’ lobby (unique to the United States) alongside modern civil procedure turned it into a mass-litigation engine.

While he does not straight up reject the accounts of others, such as Robert Kagan’s emphasis on the American tendency toward adversary legalism or Sean Farhang’s account of the legislature’s use of private enforcement as a check on divided government (current or anticipated), Zambrano takes these leading accounts on board with a critical grain of salt. In his complex account of the layers of law and policy that undergird private enforcement today, Zambrano comes back time and again to a persisting fear of monopoly power. American elites, he explains, have consistently resisted giving public officials “a monopoly on enforcement.” Private litigators confront different incentives and realities; private lawsuits will target different violations than public suits and will avoid regulatory capture problems. Why rely on one model of enforcement, public or private, when you can have both?

Both, Zambrano tells us, has been Congress’s consistent choice. Since its decision in 1914 to adopt both the Clayton Act and the Federal Trade Commission Act, American legislators repeatedly chose “both bureaucratic expertise and private litigation as complementary solutions.” One sees this choice reflected in the great rights-conferring legislation of the twentieth century, which includes the Fair Labor Standards Act and the Civil Rights Act of 1964, both of which establish an agency to play a supportive role but assign the task of litigation to private parties and their lawyers. Private enforcement succeeds in America in no small part because the private litigation ecosystem incorporates wide-ranging tools of discovery, contingency-fee finance, and the Rule 23 class action, all of which help to run the machine. Then, too, the fact that the private bar has long been an effective lobbying force may help ease the choice of private enforcement in Congress.

Sometimes, things go awry. Private enforcement schemes can overstay their welcome and introduce their own pathologies. Zambrano pulls no punches in criticizing the excesses of private environmental enforcement, which he views as having erected a virtually insurmountable barrier to affordable housing and other urban construction needs. Here, Zambrano’s talent for telling comparative assessment provides further insight; he explains that other countries plan and complete major public infrastructure projects more cheaply and expeditiously. Generalizing, Zambrano devotes a chapter to how legislatures can get private enforcement right. Since the beginning, private enforcers have been driven by goals that do not always align with the public interest. The challenge lies in properly calibrating enforcement incentives and maintaining some ongoing contact with the performance of private-enforcement regimes, instead of taking a set-it-and-forget-it approach.

Along the way, Zambrano tackles interesting private enforcement puzzles. Perhaps most intriguing, Zambrano explores why private enforcement has largely disappeared from criminal law, especially at the federal level. Bureaucratic capacity certainly tells the story in part; the DOJ has grown considerably since its creation after the Civil War. But Zambrano also explains that criminal matters may remain with the government for a set of structural reasons. Victims of criminal behavior cannot readily work together to secure private enforcement statutes; the absence of interest group cohesion may undercut interest group support for any change. Moreover, the modest financial stakes in much criminal misconduct means that the private bar may have little interest in pursuing the claims in question. Zambrano’s complex answers capture more of the truth than simplistic theories associated with the supposed demands of Article II’s provision for presidential “care” in the faithful execution of the laws.

Article II does not brook large in Zambrano’s account, furnishing a baseline of presumed public enforcement that Congress can supplement by supplying a private right to sue. Zambrano uses this construct of presumed executive enforcement primacy to structure the legislative process as members of Congress contemplate private enforcement. On the list, Zambrano includes such sensible items as public enforcement capacity, the risk of shifting priorities, the prospect of regulatory capture, and the possibility of agency corruption. All sensible questions that a thoughtful, deliberative, politically balanced Congress might wish to take on board. But complexity enters the picture as enforcement capacity changes along with public priorities, yielding a stew of relevant considerations that may defy even the most well-informed legislative engagement.

That stew of considerations informs Zambrano’s theory of layered path dependence. He first offers a searching review of the competing accounts of Farhang (legislative distrust of executive enforcement priorities) and Kagan (adversarial legalism as a distinctively American habit), showing the many ways those theories fail to account for several of the relevant moving parts. Synthesizing those moving parts occupies a full chapter of Zambrano’s theory of American-style private enforcement. In Zambrano’s telling, it was not one thing; it was this and this and this. Some readers may respond to the richness of Zambrano’s origin and development story with a yearning for parsimony – a simple account with fewer moving parts. But like life and history, the development of American-style private enforcement was contingent; it was dependent on a variety of factors that might have unfolded in a different way. Perhaps without an established bar to lobby for a private enforcement role, the progressives would have abandoned private enforcement altogether in favor of the bureaucracy and today’s world would look very different. Perhaps without the deliberate choice in 1914 to create an FTC and a regime of private enforcement, the use of both mechanisms of enforcement would not have taken hold. If not entirely simple, Zambrano’s account has the virtue of staying true to the sources and to his command of the subject.

And anyway, Zambrano gives us a parsimonious bottom line: Americans distrust the placement of an enforcement monopoly in the bureaucracy. While Zambrano has written elsewhere that the history of private enforcement disproves any claim that Article II confers a public law enforcement monopoly on the executive, this book treats the subject more by way of example than by way of extended constitutional analysis. Zambrano shows a history of reliance on private enforcement and then describes the decision of President Trump to deny enforcement to legislation banning TikTok from the internet as every Congress’s nightmare scenario. Congress enacted the law, the Supreme Court approved its enforcement, and then President Trump directed the DOJ to refrain from enforcing the law. Zambrano points out that, as with other convention-busting instances of apparently arbitrary presidential conduct, this one represented an exercise of the executive dispensation power -- – something that the English rejected in their seventeenth-century declaration of rights and we rejected in our eighteenth-century Constitution. The Take Care Clause of Article II provides no license to dispense with law enforcement but imposes a duty on the president to ensure enforcement. Alas, we have learned repeatedly during Trump II that the president cannot be compelled to honor this Take Care duty. Zambrano shrewdly observes that a private right of action could have solved the problem.

James E. Pfander is Owen L. Coon Professor of Law at Northwestern Pritzker School of Law. You can reach him by e-mail at j-pfander@law.northwestern.edu.

Legislative Acorns and Judicial Oaks

2026-10-15T09:30:00.000-04:00

For the Balkinization symposium on Diego Zambrano, How Americans Enforce the Law (Stanford University Press, 2026).

Nick Bagley and David Schleicher

Why do Americans love private rights of action? Because we really, really love them, as Diego Zambrano shows in his compelling new book, How Americans Enforce the Law. Today, more than 10,000 statutory private rights of action allow Americans to sue over things as serious as wage theft and as trivial as pet leases. They have an ancient pedigree, stretching back well before the nation’s founding. And they are at the core of basically every twentieth-century legal regime, ranging from securities law to consumer protection to environmental law.

It’s not just that our love is so intense. It’s that the object of our love is so weird. No other country—not even other countries with a common-law inheritance—relies as heavily as we do on private litigation to enforce statutes. (Will McAvoy can add a fourth category of things the U.S. leads the world in!)

Why do we have such unusual taste? That’s what Zambrano sets out to explain, without slipping into lazy sentimentality about Americans’ distrust of government or our supposedly intrinsic penchant for litigation.

There’s so much to like about the book. One choice example is Zambrano’s takedown of a leading explanation for why we have so many private rights of action: Sean Farhang’s The Litigation State. As Farhang tells it, legislatures adopt private rights of action when they don’t trust the executive branch to enforce the law. Tapping plaintiffs’ lawyers to do the enforcement work, the story goes, allows the party that controls the legislature to bypass executive machinery that is, or may become, controlled by the other party.

Farhang’s explanation may have held water for Congress in the 1960s and 1970s. But is it true for Congress today? Of even greater consequence, is it true for state legislatures, which are responsible for the huge majority of private rights of action in the United States?

Zambrano ran the numbers, and argues the answer is no. Legislatures pass private rights of action during divided government and undivided government. They pass them when they’re controlled by Republicans and when they’re controlled by Democrats.

They pass them, Zambrano argues, because private rights of action are an inherited Anglo-American legal tradition; because the fragmentation of the American state, both horizontally and vertically, puts a premium on tools that can bypass governance bottlenecks; because the plaintiffs’ bar is a potent political force; and because expansive discovery and class action rules make litigation a more potent enforcement tool here than in other countries. This “layered path dependence,” not a story about partisan jostling, offers a better explanation for why we love private rights of action.

One keen insight that comes from Zambrano’s book is that Americans don’t distrust government so much as they distrust the bureaucratic monopoly of enforcement. After all, he says, courts are just a special type of government agency, not some kind of state-free workaround.

But courts are special—which brings us to one blind spot in Zambrano’s account. He’s interested in understanding why legislatures create private rights of action to enforce a given legal rule. It’s natural, then, that he wants to hold the rule constant. But delegating to courts will predictably affect the content of legal rules. That’s especially true in the states, with their frequently elected judiciaries.

Consider one example from Michigan. In 1976, Michigan adopted a consumer protection law that included a private right of action. It was one of a rash of similar laws prohibiting “unfair and deceptive practices” (UDAP) that, Zambrano tells us, were adopted around the same time in every state in the country (p. 74).

But the story of the law’s development didn’t stop with the law’s enactment. In 1999, a Republican-controlled Michigan Supreme Court read the law so narrowly that it might as well have been wiped from the books. There things stood for a quarter-century—until this past July, when the Michigan Supreme Court, now firmly in Democratic hands, overruled that decision.

And so an initially strong UDAP law became a weak UDAP law, only to spring back into a strong UDAP law again. It would be odd to center the Michigan legislature in telling this story. Yes, it created the initial cause of action. But the shape that the cause of action took—the work that it did in the world—has largely been dictated by judges who, it turned out, had a lot of latitude to adjust the law to suit their policy preferences and the felt needs of the time.

This story isn’t unusual. The National Environmental Policy Act famously includes no cause of action. That didn’t stop the courts from deciding, contrary to Congress’s intent, that it was the judiciary’s duty to enforce the law “to the fullest extent possible.” Likewise, courts have been instrumental in shaping the Securities and Exchange Act, including by inferring the very cause of action that Zambrano (correctly) says is instrumental to the functioning of securities law. In 1975, the Supreme Court called the 10b-5 lawsuit “a judicial oak which has grown from little more than a legislative acorn.” Five decades later, the Court would use exactly the same metaphor to describe NEPA.

Early in his book, Zambrano says that he’s focused on “statutory private enforcement” (p. 30), not the common law. But the presence of all these judicial oaks raises the question whether our common-law inheritance may play a greater role in the story than Zambrano allows. For better or worse, judges in the United States have been pioneers not only in enforcing the law, but in making it. They are often closer to lawmaking partners than legislative agents. (Indeed, many state statutory rights of action are codifications or modifications of common law claims.) And we Americans seem to like that—or at least our judges and trial lawyers do.

What should we make of that? Zambrano is alive to the ways that private enforcement privileges repeat players with the resources and the wherewithal to sue to protect their rights. He’s likewise alert to how hyperlitigation from self-interested parties can run counter to the public interest. His chapter on why private rights of action under environmental laws, particularly California’s Environmental Quality Act, makes this clear. But he doesn’t tell us much about the virtues or vices of empowering judges to make the law.

Asking that question would open some interesting lines of inquiry. Zambrano says that private rights of action can reduce the risk that a regulatory regime might be stunted by bureaucratic capture or quiet agency defunding. But does that analysis hold with the same force once you consider that state court judges can be captured too? As Einer Elhauge has famously argued, litigation and legislation are both riddled with public choice problems. Variable lawyer quality, different litigation appetites, strategic settlements, and the internal contradictions of mass litigation give rise to similar problems as lobbying muscle and collective action problems for groups in politics. Should it worry us that trial lawyers bankroll the campaigns of Democratic judges? That business groups support their Republican opponents? Or is the diversification of avenues of influence sufficient to blunt the concern? Are these the same or different questions than we ask about the merits of judicial deference to agency interpretation of statutes?

You might also worry about placing decision-making authority in state court judges. Regulatory bodies can be sclerotic and underfunded. So can courts. Further, state trial courts frequently represent political settlements reached long ago, as intellectual changes do not filter down to the local political bodies that often control judicial election and appointment. In land use litigation, state trial courts have become entrenched opponents of development, representing NIMBY ideas that are now well outside of elite and bipartisan consensus. Further, the sheer number of judges and the ability of litigants to choose their fora in many instances may lead to less coherent policy answers than would a regulatory solution, for good or for ill.

Finally, one might wonder whether there is some interaction between the use of private rights of action and weak state capacity. Would state and localities underfund agencies if they did not have as easy recourse through private rights of action to a vast private bureaucracy of litigators?

None of this detracts from Zambrano’s account, of course. It just adds a layer of complexity to a story that was already plenty complex.

Nicholas Bagley is a professor at the University of Michigan. You can reach him by e-mail at nbagley@umich.edu. David Schleicher is a professor at Yale University. You can reach him by e-mail at david.schleicher@yale.edu.

The Fragility of Our Private Enforcement Republic

2026-10-14T09:30:00.000-04:00

For the Balkinization symposium on Diego Zambrano, How Americans Enforce the Law (Stanford University Press, 2026).

Myriam Gilles

Introduction

When the German car manufacturer Volkswagen finally confessed in 2015 to having installed “defeat devices” in millions of cars in order to cheat emissions tests, “Diesel-gate” became a staple of corporate-misconduct lore. But Diego Zambrano’s book invites us to look beyond the scandal itself to the very different ways in which two systems of law responded to it. In the United States, Volkswagen’s admission triggered an avalanche of lawsuits: within months, more than 50 consumer class actions were filed alongside dozens of individual lawsuits, and the Attorney Generals of more than 40 states commenced enforcement actions. Consolidated before Judges Charles Breyer in a sprawling multidistrict litigation (MDL), these cases eventually produced a $11.2 billion settlement offering consumer buybacks, per-vehicle compensation, and billions for environmental remediation. By contrast, in Volkswagen’s home jurisdiction of Germany, consumers filed a handful of individual suits seeking compensation, but no large-scale aggregation emerged. Instead, the main response came from public regulatory authorities.

The contrast between how enforcement is carried out in the U.S. and in other countries, Zambrano argues, is not a cultural or temperamental issue, nor is it the product of ‘American litigiousness.’ Instead, the reason that so much enforcement in the U.S. is carried out by private actions for civil remedies is that Congress and the state legislatures have enacted thousands of statutes providing private rights of action, empowering private litigants to enforce legal mandates alongside (and sometimes, instead of) public regulatory bodies.

A. A Sweeping Account of How Americans Enforce the Law

How Americans Enforce the Law offers a sweeping account of the America’s enforcement architecture. Drawing on an original dataset of more than 10,000 federal and state laws enforceable via private rights of action, Zambrano maps a vast statutory landscape. These provisions range from the familiar (civil rights, antitrust, wage-and-hour) to the some bizarrely idiosyncratic. For example, in Utah, you can sue a drug dealer for harm caused by someone else’s drug use; in South Carolina, you can sue someone who desecrates a family member’s grave; New Jersey lets you sue pet dealers who offer cat or dog leases (pp. 2-3). These aren’t quirks, Zambrano argues, but a manifestation of how American legislators have always governed: by deputizing private citizens to serve as roving enforcers. Based on his empirical research, California and Texas lead the nation with nearly 200 private rights of action each -- but even small states like Utah and New Hampshire are adding new private rights of action to tackle cutting-edge problems, from social media’s effects on children to red state-blue city conflicts (pp. 8-9). On Zambrano’s account, if we really want to understand how American law is enforced, we need to look first to private citizens and the plaintiffs’ bar, not to bureaucrats in Washington or state capitals.

Why did the United States develop this way? Here Zambrano positions himself against two prominent accounts. Robert Kagan’s “adversarial legalism” emphasizes the uniquely American legal style – lawyer-driven, formal, contentious – operating against a fragmented, “weak” state. Sean Farhang’s “litigation state” asserts that legislative choices to empower private citizens reflect Congressional mistrust of the President to adequately enforce the law. Zambrano finds both accounts fall short. Kagan’s notion of a culturally-bounded ‘legal style’ is too vague, obscuring the particular legislative mechanism – the private right of action – that makes adversarial legalism viable. Farhang’s account may well explain why some federal statutes feature private rights of action, but fails in the states, where Zambrano’s statistical work reveals no correlation between partisan control of government and the adoption of private rights of action (pp. 51-53).

In their place, Zambrano offers a model he calls “layered path dependence” (pp. 132-157). Private enforcement, he shows, has deep roots in English penal statutes and early American informer and qui tam actions. Parliament empowered “common informers” to sue wrongdoers and keep a share of the penalty or fine imposed – incentives the 17^th century political economist Charles Davenant described as designed “to stir up the People to put the Laws in Execution.” (p. 66-70). Colonial legislatures followed suit: Jefferson and Madison drafted Virginia legislation packed with informer provisions; John Adams handled dozens of qui tam cases as a colonial lawyer; and the first Congress used private enforcement to implement nearly all its powers (pp. 72-76). This was by necessity, as the new republic lacked the resources to build out a robust public enforcement bureaucracy and so had to rely upon citizens themselves.

The critical modern juncture arrived in 1914, when Congress paired the new Federal Trade Commission Act with the Clayton Act’s private right of action and treble damages (pp. 94-97). That “double-barreled” design, coupling agency enforcement with private litigation became the template for the many new agencies established in the decades that followed, including the FTC, the Wage and Hour Division of the Labor Department, the EEOC, the Justice Department’s Antitrust Division, and the EPA (pp. 109-114).

B. Procedure as the Missing Operating System

The final layer in Zambrano’s story is procedural, and it’s here I want to press the argument further. A statutory right of action does not enforce itself. What transformed these rights into instruments of governance was the ability to use them in conjunction with modern procedural rules – most notably, the liberal discovery enabled by the 1938 Federal Rules and the opt-out class action created by the 1966 amendments to Rule 23. Together, these devices provided lawyers with tools that rivaled or even surpassed those of public agencies: access to internal corporate documents and the capacity to aggregate dispersed harms into a single, formidable regulatory force.

Yet in How Americans Enforce the Law, procedure is relegated to the background. This is less a critique of Zambrano’s account than an invitation to expand on it by showing that private rights of action are only operational when coupled with the procedural mechanisms that ensure their viability. And the moment is ripe because the procedural infrastructure that private rights of action depend upon has been under assault over the past four decades, as the courts and Congress have stripped many of these devices of their power to turn rights on paper into rights in action. The Supreme Court’s arbitration jurisprudence – typified by cases like ATT v. Concepcion, American Express v. Italian Colors and Epic Systems v. Lewis -- now allows corporations to bar public class actions outright, even where individual claims are economically impossible to pursue. TransUnion v. Ramirez and its progeny have made Art. III standing doctrine hostile to precisely the diffuse, systemic injuries that private enforcement is meant to reveal. Twombly and Iqbal raised the pleading bar in ways that disproportionately burden plaintiffs who lack the internal information that discovery was designed to uncover. Lower federal courts have layered on ascertainability, predominance, and manageability requirements that make certification of class actions increasingly more difficult. And Congress has contributed its own constraints on private enforcement through the Private Securities Litigation Reform Act and the Class Action Fairness Act.

If we agree with How Americans Enforce the Law that the ‘operating system’ for private enforcement consists of three key components – the right to sue, access to information and access to court -- then the current dismantling of that system turns statutory rights into pure pretense. Rights remain on the books, while the mechanisms that animated them have been hollowed out. What survives resembles How Americans Enforce the Law only in outline.

C. The Vanishing Claimant and the Stakes of Fragility

Once procedure moves to the center of the analysis, the erosion of aggregation can’t be treated as doctrinally neutral. When class actions vanish and arbitration clauses proliferate, specific groups of litigants disappear from public dockets – the low-wage worker victim of wage theft, the consumer victimized by junk fees or usurious interest rates by a payday lender, the civil rights plaintiff with individual claims too small to justify looking to the courts for relief. Under-enforcement is not randomly distributed; it is concentrated in the very areas where private enforcement once had the greatest normative and positive value. So, as a friendly amendment to Zambrano’s three criteria for determining when private enforcement brings real enforcement value -- capacity, dysfunction and information – I would add a fourth: distributional visibility. A regime that protects rights only for people who can sue on their own, while extinguishing those same rights for those who can only vindicate them in the aggregate, poses a democratic problem. Rights that exist on paper but can’t actually be enforced let people mistake the appearance of protection for the real thing.

The path forward is to take the “double-barreled” insight seriously again: treat agencies and private litigants as complements, not substitutes, and rebuild collective enforcement where it’s been eroded. That doesn’t necessarily mean doubling down on Rule 23. State models like California’s Private Attorney General Act, reinvigorated qui tam regimes, and other hybrid public-private structures point to alternative architectures for collective enforcement. And when paired with real accountability, transparency, and oversight, these mechanisms respond to Zambrano’s concerns about rent-seeking without sacrificing aggregation itself.

That’s the deepest lesson of Zambrano’s book: debates over arbitration, class certification, pleading, and standing aren’t just technical squabbles among proceduralists, but choices about the fate of the private enforcement republic itself -- about whether the rights Americans have written into law stay enforceable in practice or become symbolic promises without real function.

Myriam Gilles is Catharine Waugh McCulloch Professor of Law, Northwestern Pritzker School of Law. You can reach Myriam via email at myriam.gilles@law.northwestern.edu.

Balkinization Symposium on Diego Zambrano, How Americans Enforce the Law.

2026-10-14T09:00:00.000-04:00

This week at Balkinization we are hosting a symposium on Diego Zambrano's new book, How Americans Enforce the Law (Stanford University Press, 2026).

We have assembled a terrific group of commentators, including Nick Bagley (Michigan), Brian Fitzpatrick (Vanderbilt), Myriam Gilles (Northwestern), Jim Pfander (Northwestern), and David Schleicher (Yale).

At the conclusion, Diego will respond to the commentators.

The Administration’s Hagiographic Advertisements

2026-10-03T08:51:49.051-04:00

Many people are discussing the Administration’s spending taxpayer funds to run partisan advertisements glorifying President Trump less than two months before a crucial election. Most media coverage on this episode has been decent as far as it goes, but it has missed a few points that seem worth pointing out.

Most discussions of the legality of these expenditures have focused on statutory prohibitions on this sort of thing. That is fine, I suppose, but to me the first question for any public expenditure is what statute allows it to be made. After all, Article I, Section 9, provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”. The burden should be on this Administration, or any administration, to identify the appropriation that justifies the expenditure.

The Administration has been rather elliptical about this, but social media posts from people on Capitol Hill suggest that the Administration is charging these advertisements to one of the large pools of money provided to the Department of Homeland Security by either the One Big Beautiful Bill Act of 2025 or this spring’s legislation funding immigration enforcement. Both laws were enacted through budget reconciliation procedures that allowed Republicans to proceed immune from a filibuster despite the opposition of all Democrats. Both laws give the immigration agencies startlingly broad discretion about how to spend the large sums provided. Yet I cannot find anything in either law that could plausibly be said to allow these funds to be spent on advertisements glorifying the President.

This matters because a federal statute dating to the early days of the republic provides “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.” This is why, for example, Democratic presidents have been unable to switch resources from defense to domestic investments and why Republican presidents have been unable to liquidate human services programs in favor of aircraft carriers. Indeed, as Justice Thomas has written for the Court, the very essence of an appropriation is that it directs funds to a particular purpose:

Based on the Constitution’s text, the history against which that text was enacted, and congressional practice immediately following ratification, we conclude that appropriations need only identify a source of public funds and authorize the expenditure of those funds for designated purposes to satisfy the Appropriations Clause.

If these advertisements do not fairly fall within any of the purposes specified in any appropriations, all officials involved in the production and placement of these advertisements may have “ma[d]e or authorize[d] an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation [or] involve[d the federal] government in a contract or obligation for the payment of money before an appropriation is made [without] authoriz[ation] by law”. If so, they may have violated the Anti-Deficiency Act, which carries both criminal and other penalties.

Assuming an appropriation could be found whose purposes could fairly encompass these advertisements, they still may not be funded if an applicable restriction on the appropriated funds disallows the expenditure. For example, the general terms of appropriations for Medicaid would clearly allow funds to be spent on abortions but that would nonetheless be unlawful because the Hyde Amendment forbids such expenditures except in very limited circumstances. Appropriations restrictions may appear within the particular appropriation in question, within the appropriations act containing that appropriation, within the list of general prohibitions on all expenditures of federal funds that Congress customarily enacts every year, or in permanent non-appropriations legislation. It often makes sense to consider restrictions in this order.

Because I am unaware of any particular appropriation that could support these advertisements, I cannot check that appropriation for relevant restrictions. I do not immediately see any relevant restrictions in either of the two reconciliation acts the Administration reportedly may be tapping, although not knowing which appropriation it has in mind hampers my search.

Clearly applicable restrictions do appear in the restrictions enacted each year in one appropriations act but applicable to all federal funds. In recent years, those have appeared in the Financial Services and General Government Appropriations Act (pronounced “FSGG” by appropriations experts and intoxicated persons the world over). Last winter’s consolidated appropriation act included FSGG as its Division E, with Title VII containing government-wide restrictions on federal funds.

Section 715 provides “No part of any funds appropriated in this or any other Act shall be used by an agency of the executive branch, other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes.”

Section 718 similarly provides “No part of any appropriation contained in this or any other Act shall be used directly or indirectly, including by private contractor, for publicity or propaganda purposes within the United States not heretofore authorized by Congress.”

Both of these restrictions reach all federal funds without regard to which legislation provided them. (To see the difference, compare section 8001 of Division A, the Defense Appropriations Act, which also prohibits spending funds on propaganda but only applies to funds within that Act.)

Some accounts suggest the Administration is arguing that, by spending money from reconciliation acts rather than annual appropriations acts, it is somehow exempt from these restrictions. That is absurd. Any law allowing the spending of federal funds is an appropriation, whatever the title given to the law and whatever procedure Congress has adopted for its consideration. This hypothetical argument also would prove too much: if the reconciliation acts were not appropriations then any expenditure of any of the moneys they contain would violate the Appropriations Clause and the Anti-Deficiency Act. Moreover, neither section 715 nor section 718 limit their reach to appropriations acts. Therefore, sections 715 and 718 apply to the money spent on the advertisements and would seem to disallow this use. Once again, spending federal funds without a valid appropriation violates the Appropriations Clause and the Anti-Deficiency Act.

Finally, we must consider restrictions on federal funds found in permanent law. The most obvious starting point is the Hatch Act, which seeks to prevent federal resources from being applied to affect the outcome of elections. The Act states that a federal “employee may not…

use his official authority or influence for the purpose of interfering with or affecting the result of an election”. The Act also provides that “An employee may not engage in political activity—

(1) while the employee is on duty; [or] (2) in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof”. To make clear that this is a restriction on federal funds, the Act creates a narrow exception for limited situations where the employee reimburses the Treasury for any federal resources used. The Hatch Act is enforceable through adverse employment consequences and civil penalties. Any federal employee who used their authority or influence to produce these advertisements or to have them run at federal expense would seem to be in a difficult position.

Of course, the chances that the Department of Justice would enforce any of these laws against officials who spent taxpayer funds shortly before an election to glorify the President are nil. One of many revelations from the current Administration is that the Attorney General may be an even more important fiscal officer than the Director of OMB or the Secretary of the Treasury. In an environment where nobody will even consider enforcing laws that inconvenience the President, we have no laws. A major task going forward will be redesigning our fiscal architecture so that it can have real effect even when the Justice Department is completely subservient to the White House and even when the pardon power is wielded for purely instrumental, partisan purposes.

@DavidASuper.bsky.social @DavidASuper1

More Fiscal Mismanagement

2026-10-02T11:55:06.404-04:00

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

2026-09-27T14:54:40.874-04:00

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

2026-09-25T09:00:00.000-04:00

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.

[*] The 1870 Census would report 1,982 African-born persons of color residing in the states of the Union. Almost 92% of them resided in the states that had risen in rebellion. (See p.336.)

Constitution Day Talk at Stanford: Technology and Constitutional Rot

2026-09-22T09:30:00.000-04:00

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

2026-09-20T12:39:52.422-04:00

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

2026-09-18T08:55:45.688-04:00

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

2026-09-17T09:30:00.000-04:00

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

2026-09-16T09:30:00.000-04:00

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?

2026-09-15T14:24:22.484-04:00

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

2026-09-15T09:30:00.000-04:00

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.

Similarly with other aspects of institutional design, in particular with the fear of the Frankenstate that Ragone raises. Assembling an institutional order from pieces drawn from other orders might produce a Frankenstate but might also give you a pretty good working constitution. And the interaction effects that produce a Frankenstate are typically so complex that one can’t be confident that something assembly that works badly in one context might not work decently well in another.

We do report our sense that readers’ acknowledgement of the importance of context often comes with a perhaps residual sense that some aspects of institutional design are at least presumptively desirable everywhere at all times. Examples include empowered constitutional courts again, but also substantive commitments to somewhat thick assumed presuppositions about what democratic self-governance requires in the way of free expression and procedural regularity. Levinson has a somewhat longer list. We do not take the contributors to be committed to treating these matters of institutional design as inflexible steel bars but perhaps (forcing the metaphor) as pieces of balsa wood, somewhat supple but not bendable into any shape whatever. Here our reaction reverts to Freud: the psychology lying behind an analysis that leads to ego replacing id (not, pace O’Conneide, superego) is difficult—sometimes, as Freud suggested, interminable.

Gargarella, Nicola, and O’Cinneide raise questions about our conclusion that the remedies for democratic decline—and, we think we should now add, the prospects for further democratic empowerment—lie in ordinary politics conducted by ordinary political parties. Nicola and O’Cinneide question whether parties as currently constituted are well-suited to conducting the kind of constitutional politics that leads to democratic revival and expansion. Gargarella argues that parties as currently organized are ill-adapted to new social conditions of radical economic dispersion and multiculturalism.

To put the point somewhat awkwardly, we don’t really disagree with these observations. And we reiterate a point made in the book, that analysis of political parties is something that political scientists are far better at than we are. Nevertheless, our main intent in the book was to shift the attention from the obsession with “defensive legalism” toward greater engagement with politics, coming from political parties and other forms of political engagement. That said, we are currently working on a follow-up that will, we hope, address some of them. In that article we distinguish between the here-and-now and the ultimately desirable. The prescriptions for today’s center-left political parties we offer are short-term—how to begin to get out of the pickle we’re in. Gargarella in particular but also Purdy to some extent invite us to ask about the long term. We are happy to do so, again with the qualification about relative expertise. We note, though, an additional question: how do we get from here to there? On that we can point into direction of growing literature on law and political economy, offering fruitful conversation among lawyers about how to create legal prerequisites for open and democratic political renewal.

We turn from themes running through several contributions to points made by four contributors. O’Cinneide denies that majoritarian preference can always provide a sufficient justification for exercising public power—which, in light of our insistence on context, is surely true. He suggests, though, that there is something like constitutional justification that always must be provided. No surprise: we are skeptical because of the risk that what counts as a constitutional justification will either start out as or eventually become the kind of thick constitutionalism we do oppose. Perhaps, though, we could construe his argument as, Start out pretty thin and then contest through ordinary politics every effort to thicken the demand for constitutional justification.

So construed (which, we emphasize, is our construction not to be attributed to O’Cinneide), the argument runs up against the strongest of Graber’s points. Before getting to that, though, we want to point out something of an equivocation in Graber’s use of the term “entrenchment” to encompass legal, political, and cultural arrangements that can’t be displaced through ordinary majoritarian politics but can be displaced through sustained majoritarian or concentrated supermajoritarian politics. Some versions of Yale-associated accounts of the role of social movements in constitutional change are the prime examples of the former, formal constitutional amendments the prime example of the latter. Of course some results of ordinary politics are “sticky,” as we stress when arguing that making every institutional arrangement subject to ordinary politics won’t inevitably lead to chaos. Other than that, though, we’re not clear on what’s gained by lumping all these types of stickiness into the category “entrenchment.”

Graber’s strongest point, we think, is that sometimes the ordinary political contestation over thickening the justificatory requirements will end up with thicker rather than thin ones. People like us might lose out in that political struggle. Graber’s example of Canadians and investors identifies the most difficult case for us—thickening that leads to a change in the composition of the governing bodies whose actions are the targets of ordinary politics. Once you give Canadians and investors a formal role in governance, you’re going to be stuck with it absent extraordinary political mobilization.

Graber’s point identifies a central difficulty in pretty much all democratic theory. Who constitutes the demos that is to be self-governing? Discussions of the constitutionalization of the European Union asked whether Europe had a demos, though the consensus answer (“No”) doesn’t really address the theoretical question. Tushnet has a forthcoming short essay, “The Georgraphy of Constitutionalism,” that makes a stab at answering the question. He thinks that there’s no general theoretical answer but that things are path-dependent. Kif that’s right, our response to Graber’s strongest point is that the relevant politics can’t coherently be identified as majoritarian or otherwise (maybe applying the term to the politics that determines the boundaries of the demos is a category-mistake).

Purdy frames our work with reference to “structures of feeling.” We appreciate the point and may have hinted at it in our appropriation of the term “liberalism of anxiety.” For him, one characteristic of contemporary society is “a collapse in trust.” That seems right to us, in which case we might ask how to rebuild trust (rather than how to construct a stable democratic polity in the absence of trust). In the follow-up article we referred to earlier, we’re working on ideas about radical decentralization coupled with “transborder” agreements to deal with issues associated with world-wide political economy as a way of rebuilding trust through face-to-face interactions and reciprocal agreements. But, we’re not yet able to defend that position against some rather obvious skeptical thoughts that will already have occurred to readers of this response!

Finally, Loughlin mounts a severe attack on our argument. We were initially taken aback at its thrust because we thought we were operating within roughly the same conceptual space as his Against Constitutionalism. Some of his arguments seem to us based upon misreadings of our position, for example about the role of conventions, norms, and guidelines in stabilizing “thin” constitutional institutional arrangements.

Rather than engage his arguments point-by-point, we’ll conclude by suggesting that Loughlin doesn’t have the courage of his convictions. His book develops arguments against a particular form of constitutionalism. We can be taken as asking, What purchase do those arguments have against the components of even a thin constitution, or a constitutionalism that survives after Loughlin’s critique of that particular form? And, we can be taken as answering, Exactly the same purchase. That is, if Loughlin’s right about what’s wrong with the form of constitutionalism he criticizes, people like us who take up his arguments are right about what’s wrong with constitutionalism full stop. Or, as we put it in our follow-up article, we think it completely defensible to take politics all the way down—not merely through “ordinary” policies but through the institutional arrangements that are taken to define the particular forms democracy takes in each polity.

Again, we thank the contributors (and Balkinization) for providing us with the opportunity to engage with critical readers of our work, and hope that our responses add value to the book!

Mark Tushnet is William Nelson Cromwell Professor of Law emeritus at Harvard Law School. You can reach him by e-mail at mtushnet@law.harvard.edu.

Bojan Bugaric is Professor of Law at Sheffield School of Law. You can reach him by e-mail at b.bugaric@sheffield.ac.uk.

Taming the 1960s

2026-09-14T12:26:28.330-04:00

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

2026-09-14T09:00:00.000-04:00

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

2026-09-12T10:26:03.264-04:00

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

2026-09-11T09:30:00.000-04:00

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

Madhav Khosla

In contemporary politics, what we now routinely think of as a crisis of democracy has proceeded alongside a certain crisis of constitutionalism. Our reality isn’t merely one of democratic disenchantment, where we bemoan the electoral victory of disreputable candidates, the incapacity and misgovernance of representative government, or the disharmony between policies and outcomes. Instead, our basic institutions are functioning in tragic ways, public offices are betraying the very logic for their existence, and the constitutional system, as it were, seems to be part of the problem rather than the solution. It is no surprise then that major public law theorists are now “against constitutionalism” and are urging the abandonment of “constitutional structures.” And the electoral arena, in turn, is witnessing a kind of competitive populism where different varieties of populism are challenging one another, with each promising to undo the system in its own way rather than work within it.

Mark Tushnet and Bojan Bugaric’s important new book, Constitutionalism and Its Discontents, is a sober, careful effort at making sense of the various positions on offer in the battle over constitutionalism. The idea of constitution has its critics and advocates, but what precisely are people fighting over? What are the strengths and weaknesses of the differing orientations? Can we do without constitutionalism entirely – or might it be possible to embrace a more sensible version of it than those we’ve often been acquainted with? And perhaps, above all, can constitutionalism save us from authoritarianism – or is it going to carry us there?

In answering such questions, Tushnet and Bugaric are far from dogmatic, but they are clear. Different forms of constitutional design can be helpful, say in empowering voters, controlling the abuse of power, enabling effective decision-making, and so on, but the applicable design strategies can just as easily constrain self-government, permit authoritarian practices, and deactivate politics. As such, constitutionalism can both empower and disable democracy, and the direction it takes depends on a variety of highly contingent factors that operate at the moment. Indeed, “constitutionalism is beset by the paradox that it aims to both empower democratic self-governance and limit the exercises of that power” (p. 2).

For Tushnet and Bugaric, the answer to this paradox lies in a modest form of constitutionalism, one largely focused on procedural rules that avoid thick commitments and major entrenchment. Their reasons are plain. A thicker version of constitutionalism – one more in line with post-war liberalism – may, for instance, reasonably focus on minority oppression, but it ultimately hampers self-government by disabling majorities in crucial ways. It’s better to focus on politics and get the majority you want than hinder majority rule. Our political lives are better served by constitutions as “recommendations” that set up the “initial rules about ruling” (p. 17), rather than devices that chain self-government. The specific illustrations of this logic can be multiplied. Whether one considers militant democracy, restrictions on amendments, or the like, one is confronted with the “false promise of constitutional design” (p. 118) where devices that we think can protect liberty may well fuel and further oppression. As they show us, “every policy that might be useful to slow down democratic decline has the potential to slow down democratic revitalization” (p. 101).

There is much to be said in favor of Tushnet and Bugaric’s account, especially for scholars of American constitutionalism. The veto gates in the existing American system are so severe that one cannot but feel the attraction for a more British-style model of constitutionalism, where the legislature reigns supreme, and where new governments can relatively easily translate popular preferences in political action (with parliamentarism’s legislature-executive fusion). As an empirical matter, Tushnet and Bugaric may well be correct: thin constitutionalism might indeed be a wiser strategy than the alternative. And it is to their credit that they approach the matter with a rare kind of political humility and skepticism. So much of our history is filled with unfreedom laced and unintended consequences that it may be more sensible to conceptualize a form of constitutionalism that permits and facilitates revision, rather than one that locks us in.

Of course, Tushnet and Bugaric aren’t fans of oppressive majoritarian power, but they see the better answer to the worry as lying within the practice of politics, which constitutionalism should limit itself to thinly structuring, than through entrenched, politically immune legal rules and regulations. Treating constitutions like statutes allows them “to be followed when their provisions advance the public good” and “to be displaced when, after reflection and serious political contestation, one or a few provisions seem to stand in the way of adopting important policies” that the people associate with the public good (p. 27). And it is always worth remembering, they stress, that “a structured inability to achieve policy goals for which members of government are elected might be a continuing source of discontent with constitutionalism” (p. 46).

But, in the spirit of a provocative exchange, there is more to the debate over constitutionalism that Tushnet and Bugaric possibly suggest. To point the point sharply, in determining the right balance between thin and thick constitutionalism, at stake is not merely intelligent design but the normative basis for legal authority. We certainly want to adopt a design strategy that can increase the odds of both empowering the people and maintaining equal citizenship. Maybe – on balance, as an empirical matter, as a game theoretic supposition, as a historical fact, etc. – thinner versions of constitutionalism hold this promise more than thicker ones. But, beyond achieving this balance as a matter of realpolitik, what a constitutional order also does is ground the authority of law. It constructs a normative universe, and provides an argument – a justification – for the legitimacy of coercive action.

Indeed, Constitutionalism and Its Discontents says less than might be said about the role of normativity in politics. Whatever its failings, the great achievement of post-war liberal constitutionalism – that is, thicker versions of constitutionalism – was the articulation of the idea that power, even majoritarian power, must always be subject to justification. Through its contents, this version of constitutionalism set the normative baseline for what legitimate power looks like – and, even when it failed, those who violated it still had to speak that language. (A bit like despots on the international arena feeling a need to claim that their actions meet the requirements of international law.)

The post-war thicker versions of liberal constitutionalism underscored the idea that the democratic game of numbers was necessary but not sufficient to legitimize coercion; that the authority of law rests on something beyond mere authorization. The animating theme of liberal constitutionalism has been a dual focus on both how power is sourced and used. And the challenge of authoritarian populism – whether in Hungary, Poland, Turkey, or this country – is not merely that leaders are behaving wantonly. The challenge is far more fundamental for it articulates a new normative basis for the exercise of power.

Authoritarian populism challenges liberal constitutionalism by taking popular authorization as sufficient to warrant all exercises of power. Once the people have spoken, the conversation ends. We are witnessing not only new exercises of power, but a new ideology that redefines legitimate power. For all their brutality, authoritarian regimes do not rest merely on brute power. They rest – as I have suggested in a recent piece, The Authoritarian Argument – on reasons and arguments that underscore their legitimacy. Today, many of such regimes question the liberal idea that politics is a game of constant justification, a space where multiple sites of representation exist, and where legitimacy emerges from a plurality of practices.

Tushnet and Bugaric may well be correct that thin constitutionalism is better overall at preserving liberal values. Perhaps majoritarian power is the best way to prevent majoritarian oppression. But we cannot avoid acknowledging the normative contest at play here; and the importance of the idea that exercises of power must be subject to justification. The question, in other words, is not merely one of finding the right practical balance between thin and thick constitutionalism, but also about finding the right basis for the authority of law and for the exercise of coercion. The forms of thick constitutionalism that are familiar to many of us may have had several flaws, and many an unintended consequence, but thin constitutionalism will have to carry the burden of expressing the sentiment that that might is not right; and that even if the majority has the legal right to do something, it may not be legitimate for them to do so.

If we can agree, in principle, that majoritarian power is not sufficient to legitimize state action – just as minoritarian power is not – then how best to balance majoritarian expression with majoritarian restraint may require different forms of constitutional thickness and thinness in very different settings, depending on a variety of considerations. The real worry for our times is perhaps not the discontent with constitutions because they have constrained majoritarian expression, but the disillusion with the core content of the constitutional post-war imagination, namely that the use of power must always justify itself, however it is sourced. Put differently, we should worry not only about constrains on majoritarian power, but about the possible normative belief that that unconstrained majoritarianism offers a complete basis for the legitimate exercise of power.

Madhav Khosla is Dr. B.R. Ambedkar Professor of Indian Constitutional Law, Columbia Law School. You can reach him by e-mail at madhav.khosla@law.columbia.edu.

Letting Go of Faith in Constitutionalism

2026-09-10T09:30:00.000-04:00

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.

Similar arguments have been made over the years, by commentators such as Unger, Loughlin, Bellamy, Moyn and Doerfler and the authors themselves – not to mention proponents of British-style ‘political constitutionalism’. (Which has regained its orthodox status in the UK in recent years: something which may be at best a mixed blessing for Mark and Bojan’s line of argumentation, as discussed briefly below.) This line of critique is increasingly vigorous, and attracting attention. It taps into concerns about depoliticisation and the shrinking space afforded to democratic decision-making. And it offers an alternative to the increasingly hollowed out promises of constitutionalism.

Constitutionalism and its Discontents adds another entry to this gradually accumulating charge sheet. However, it stands out in several ways. First of all, it is written with real style, concision and verve – making it a pleasure to read. Secondly, it uses comparative evidence from a wide range of jurisdictions to build up its core arguments in pointillist fashion, instead of just relying on broad normative brush strokes (although they play a significant role at various stages of the analysis). Thirdly, it takes the supranational dimension to constitutional governance seriously, making particular reference to ‘programmatic’ aspects of EU constitutionalism – something that is often awkwardly ignored or glossed over in academic argumentation that has a similar ‘political constitutionalist’ stamp, which has a tendency to stick its metaphorical fingers in its ears and refuse to engage with the necessary complexity of supranational governance structures like the EU.[1] Fourthly, it critiques constitutionalism in terms of its own professed aims and ambitions, in particular the aspiration to protect democracy from abusive political overreach - and shows that it is struggling to deliver.

The Case for Constitutional Disenchantment

Mark and Bojan’s arguments particularly resonate when they discuss what they call the ‘paradox of constitutionalism’, i.e. how it ‘aims to both empower democratic self-governance and limit the exercises of that power’ (p. 2). As they note, this is an inherently slippery and unstable ambition. It ensures that courts are constantly forced to navigate between the twin perils of judicial over-reach and judicial self-abnegation. It exposes them to the charge of being anti-democratic. It can stoke popular discontent, by limiting how governments can respond to shifts in public opinion. And all this can expose courts to political pressure, while also incentivising governments to find a way around such controls by e.g. manipulating the judicial appointments process.

The authors back up this structural analysis with a comparative analysis of how these tensions play out in the context of (i) general controls on executive power; (i) the application of ‘programmatic’ controls on the trajectory of national economic policy; and (iii) attempts to use constitutionalist tools to tackle the problem of ‘democratic decay’. This latter part of their analysis – developed in Part III of the book – is particularly well done. Drawing on evidence from the US, Hungary and elsewhere, Mark and Bojan suggest that constitutional responses to genuine authoritarian threats often suffer from a ‘Goldilocks’ problem: constitutional courts tend to be unsure when they should intervene to combat such threats, and end up waiting for a ‘just right’ moment which never comes until autocratic capture is complete. They also suggest attempts to deploy constitutionalism against populist parties often seem to be motivated by a vague and inchoate ‘liberalism of anxiety’, rather than a genuine desire to push back against fundamental threats to democracy and human rights. And they highlight how the invocation of constitutionalism as a buffer against populism often discredits it in the eyes of substantial chunks of the citizenry.

No Salvation in Constitutionalism

Some evidence offered up by Mark and Bojan in support of this analysis can be contested, or nuanced. For example, courts in some states have played an effective role in conjunction with other legal and political actors in shoring up democratic resilience, without alienating popular majorities – with e.g. Italy offering up an interesting case study in this regard. And, while the book’s discussion of programmatic controls in the context of EU constitutionalism is highly impressive, I am not convinced that it sets out a comprehensive indictment of such controls more generally. (Indeed, if anything, I would argue that the EU experience shows that it is possible to combine programmatic controls with democratic input. But this is perhaps a discussion for another day.)

These quibbles aside, I find Mark and Bojan’s diagnosis to be broadly convincing. Constitutionalism is prone to oscillating between over-rigidity and over-permissiveness: between being too controlling and too accommodating of political power, both in terms of public perception and the reality of public governance. By extension, it struggles to deliver on its own promises, i.e. to protect minorities, limit executive over-reach and the like, while also satisfying critics of judicial over-reach. And this inherent instability is contributing to the erosion of public confidence in the functioning of liberal democratic states.

But No Salvation in Majoritarianism Either

However, if constitutionalism will not save us, to paraphrase Mark and Bojan – if the Emperor turns out to be not wearing very many clothes at all, so to speak - then should we abjure our constitutionalist faith and seek salvation in other doctrines? This is what Mark and Bojan suggest, while acknowledging that different responses may be appropriate in different states depending on context.

More specifically, they argue that we should ‘scale back our expectations’ in relation to constitutional form and process. Instead, we should embrace mostly procedural and ‘thin’ approach to constitutionalism - whose provisions can be amended or displaced through standard legislative procedures, if ‘after reflection and serious political contestation’ (p. 27) they are deemed to be dispensable. In other words, Mark and Bojan recommend that we consider ditching the idea that constitutions should be treated as sacred text, and replace it with faith in the integrity and sufficiency of the political process as channelled through the electoral system.

Now, this is where I begin to part ways with Mark and Bojan’s analysis. Or at least to wonder whether their cold-eyed disenchantment with constitutionalism gives way to an overly idealised view of the dynamics of party political contestation as it plays out within the atomised conditions of modern life.

The book acknowledges that campaign financing and donor interests exert a huge influence over political agendas, and that political parties have in general lost the mass popular base they once enjoyed in the post-1945 period.[2] However, in the final chapter Mark and Bojan offer suggestions as to how these flaws can be partially remedied, by electoral law reform, greater use of citizen assemblies and other incremental adjustments to the status quo. And they make the case that party political contestation remains the most authentically democratic route through which majority will formation takes place – while also being sufficiently competitive, ‘reflective’ and robust as to minimise the possibility that governing parties will take abusive advantage of an easily revisable ‘thin’ constitutional framework.

However, I do not share their idealism. First of all, the political process in most liberal democracies is increasingly lacking in ‘reflectiveness’, being replaced by eyeball-attracting rhetoric and targeted appeals to particular special interests or demographic segments. Secondly, increasingly large segments of the population are not well represented – especially non-citizens and the socially marginalised, who also happen to be the groups most vulnerable to abuse of government power. And then there is the clear evidence, building day by day, that big chunks of the electorate in many different democracies are not especially motivated by concern to maintain basic rights protection, or meaningful cross-branch constitutional ‘collaboration’, or to punish corruption – making it less likely that changes to constitutional ground rules will attract the sort of ‘serious political contestation’ that Mark and Bojan would favour before they are adjusted to suit the political agenda of a ruling party.[3]

Constitutional Tempering

There is also a wider problem here. Mark and Bojan passionately argue for the establishment of a true ‘constitution of equals’, which should preclude the legal elitism associated with embedded constitutionalism. But as Roberto Gargarella has recently pointed out, the concept of a ‘constitution of equals’ could be viewed as having three pillars: public debate, social inclusion, and ‘common equality’, i.e. a commitment to ensuring certain structural conditions are in place to facilitate equal democratic participation. And, for all its many flaws, contradictions and inadequacies, the idea of constitutionalism as it has evolved over the last 150 years or so makes room for this wider commitment, which extends beyond the formal equality of the franchise.

Now, Mark and Bojan are right to question whether embedded constitutionalism in its various facets is delivering on this commitment. But there are grounds to be concerned that treating majoritarian views as the sole and ultimate determinant of what should qualify as a core constitutional norm may result in this wider, more structural concept of democratic equality being lost in political churn. Especially at the current moment, when political parties committed to magnifying social exclusion on race and religious grounds are thriving at the ballot box.

I should emphasise this is not an argument for clinging to the constitutionalist faith as currently preached, or investing futile hope in judicial review and other mechanisms. However it is a reason to be wary of making majoritarian will the sole reference point for defining what we consider to be constitutional behaviour – both as a matter of legal interpretation and in political debates. Various institutional methods can be used to bring justificatory pressure to bear on elected governments invoking the popular will to do constitutionally controversial things: ordinary legislation, fourth branch bodies, international law norms and political accountability mechanisms all have a role to play in this regard. The final say on a disputed issue might remain with the legislative majority – but at least a legal and political contestatory space should exist, making it possible to distinguish the concept of what is ‘constitutional’ from the concept of the ‘popular will’. And we should be aware of the threat of democratic monism, i.e. the danger that all aspects of state functioning will be expected to fall into line with current government policy, including human rights and anti-discrimination law controls that are expressly designed to operate with a robust degree of autonomy in this regard.

The British constitution is sometimes cited as a functioning model of the type of majoritarian-based political constitution favoured by Mark and Bojan. However, during what are widely regarded to be the golden years of this constitutional model, i.e. in the democratising post-1945 period, there was a reasonably robust sense of shared constitutional values and the need to avoid democratic monism. It was not a perfect system: for example, it failed utterly to handle the deep political, religious and socio-economic divides of Northern Irish society. But the concept of the ‘constitutional’ exercised a tempering effect on majority will. Now, in the UK, we see majoritarian will increasingly invoked to justify more and more extreme measures directed against migrants, environmental protestors and other unpopular groups – and tempering mechanisms such as the Human Rights Act 1998 coming under constant attack, precisely because they limit political freedom of action.

Now, once again, none of this invalidates Mark and Bojan’s scorching dissection of constitutionalism and its many discontents. But it perhaps does suggest that some scepticism is also warranted when it comes to faith in the dynaimcs of party political contestation. It would have been interesting to hear more from Mark and Bojan about where ‘weaker’ forms of constitutional tempering fit within their vision of democracy freed from the rigid structures of embedded constitutionalism. It would also have been interesting to see more discussion of the extent to which constitutionalism is a necessary element of any serious supranational socio-economic integration project, such as the EU – and how much political/majoritarian choice can be infused within such mechanisms, given the need for sustained cross-national cohesion over time. But that is all potential material for a sequel, if Mark and Bojan choose to treat us with another book as rich, incisive and thought-provoking as this one.

Conclusion – Political Ids and Constitutional Superegos

Drawing this overly long blogpost to a close, it is good to return to the discontents of constitutionalism as dissected by this masterful book. Mark and Bojan are right to argue that the constitutional faith cannot deliver the redemption it promises, and thus we should view the reality of its functioning with a sceptical and disenchanted eye. However, they go on to argue (citing Freud) that jettisoning this faith and embracing another gospel - trust in political contestation - will help us convert the misery of our present constitutional discontents into a less pressing ‘ordinary unhappiness’. In response, I think they should also cast more of a cold eye on this alternative faith and the alleviatory promises it makes.

More specifically, picking up their Freudian theme, I think Mark and Bojan are too quick to overlook the problems of the political id, as shaped, structured and expressed in our contemporary liberal democratic societies, and how this is intimately bound up with the all-consuming nature of the political ego. My sense is that some element of constitutionalist superego is still needed, if reconfigured and deployed with suitable care and modesty of ambition. However, even my points of disagreement should be read as reflecting deep admiration for the tensile strength of Mark and Bojan’s argumentation - and the fundamental challenge it poses to believers in the constitutional creed.

Colm O’Cinneide is Professor of Constitutional and Human Rights Law at University College London (UCL). He is contactable at c.o’cinneide@ucl.ac.uk or uctlcoc@ucl.ac.uk.

[1] See also the way in which confused appeals to the concept of national sovereignty wreaked havoc with the Brexit process in the UK.

[2] For an excellent exploration of this shift, see A. Jäger, Hyperpolitics: Extreme Politicization without Political Consequences (Verso, 2026.)

[3] If looking for evidence to support this point, please note current political developments with e.g. the Trump administration in the US and the success of the Reform Party in the UK.

Our Unconstitutional Reapportionment Process

2026-09-10T07:42:58.862-04:00

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

2026-09-09T09:30:00.000-04:00

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.

Since this formulation was generated from studying the evolving modern practice and from accounts of its adherents, I did not regard it as particularly controversial. It had also been widely accepted by other leading scholars. Consider, for example, the work of Walter Murphy, doyen of the Princeton school of constitutional scholarship. His 2007 book on constitutional democracy begins by recognizing the need to draw clear distinctions between constitutionalism, constitutional democracy, and constitutional government. Constitutionalism, he explains, ‘is a normative political creed that endorses a special kind of political order’, an order founded on a constitutional text containing a bill of rights and judicial review, upholding respect for human dignity as the fundamental value, and adopting the doctrine of the separation of powers. And he then shows that it is a type of regime that must be distinguished from constitutional democracy. Indeed, he notes that those who intend to study the role of constitutions dispassionately without being seduced into accepting the ideology of constitutionalism must carefully differentiate between ‘constitutionism’ and ‘constitutionalism’.

But we might also refer to Professor Tushnet’s own book, Taking the Constitution Away from the Courts. His discussion in that book implicitly endorses my understanding of the concept of constitutionalism and adopts a similarly sceptical view of its value. He cites positively Jefferson’s argument about the dangers of one generation binding the next, doubts whether constitutions ‘are a good way of tying our hands’, notes that the argument for entrenchment ‘overlooks the problem created by interpretive ambiguity’ and ridicules the opposing argument that otherwise ‘all institutions [are] up for grabs at all times’ (pp.40-42). In a book carrying such a title and containing chapters entitled ‘against judicial supremacy’ and, even more radically, ‘against judicial review’, it surely is not unreasonable to assume that Tushnet is ‘against constitutionalism’.

Following the publication of my book, the authors had the opportunity to offer a more considered response to my Balkinization review. One obvious criticism is that I had adopted a contentious version of the concept and in a review essay – remarkably entitled For Constitutionalism – Mark Tushnet evidently thought so. Although generously acknowledging that Against Constitutionalism is ‘a powerful critique of what [Loughlin] rightly contends is the predominant form of constitutionalism in today’s world’, he ruminated on ‘whether that is the only form constitutionalism can take’ (p.15). Since I had argued that terms like ‘popular’ or ‘political constitutionalism’ – versions they had been advocating – are misnomers, this perhaps is not surprising. Yet, in a 40-page review essay, he does not make out a case for an alternative version. Instead, his critique is pitched at the claim that my book defends constitutional democracy against constitutionalism. But in advancing that claim he crudely mischaracterises my views on constitutional democracy.

In the Preface to Against Constitutionalism I noted that constitutionalism is often extolled but rarely defined. I explained that it ‘certainly expresses a belief that order, freedom, and justice are best promoted in a regime whose main characteristics are defined by a founding text elevated above the ordinary cut and thrust of politics’, but that otherwise its meaning often remains ambiguous. And here I must emphasize two points. First, that this is the only statement to be found in the book that mentions the phrase ‘the ordinary cut and thrust of politics’. Secondly, that that phrase is not made with reference to constitutional democracy; it is used only to help identify a basic feature of constitutionalism. It is a feature that the author of Taking the Constitution Away from the Courts might find uncontroversial. But this is not how he reads it.

In his review essay, Tushnet not only invokes that phrase fifteen times, but also asserts that I employ it as my definition of constitutional democracy. Asking, rhetorically, what does ‘constitutional’ in that phrase signify, he states:

Loughlin’s answer is, We decide how to decide by the ordinary cut and thrust of politics (and, specifically, not by relying upon decisions about how to decide made by a constitution’s framers or by contemporary judges). Yet, one might object, we should hope that Loughlin doesn’t really mean “cut and thrust” in a literal sense— fighting in the streets with swords and their contemporary equivalent (even if in periods of extreme social and political stress such as Weimar Germany street violence might become part of the daily political landscape). If not fighting, though, ordinary politics even about constitutional matters has to be conducted through some institutional forms. And, one might worry, those institutional forms might not be well-suited for preserving or deepening the constitutional dimension of constitutional democracy. (p.28)

That statement requires a considerable amount of unpacking. Let’s set to one side the gratuitous references to Weimar and street fighting; anyone interested in my views on the nature of politics – which are far removed from fighting, in streets or otherwise – might consult chapter 3 of The Idea of Public Law. But he also makes the unwarranted and unsubstantiated assumption that for me constitutional democracy is a regime without an institutional infrastructure and in which everything is reduced to the ‘ordinary cut and thrust of politics’. Again, that same chapter of The Idea of Public Law provide a corrective.

How could that stance even be contemplated? Unless there are rules about ruling, there is no regime. Why would I write books on public law that examine such institutions as state, constitution and government if I held such a weird view? What must I have been thinking in writing an essay on ‘Law as Institution’? Why attribute to me what he recognizes as the crazy notion that ‘all institutions [must be] up for grabs at all times’ when in Against Constitutionalism (p.107) I explicitly state that constitutional democracy recognizes that ‘the written constitution performs a critical role in providing a framework for institutionalizing … social conflicts’? What causes him to convert a phrase I use only in a preface and then only to illustrate the character of constitutionalism into the epitome of my account of constitutional democracy?

I labour this point because following his review, Tushnet and Bugaric use my book to ‘frame the problem’ of Constitutionalism and Its Discontents. Their first chapter suggests that I am ‘against a form of constitutionalism [sic] specific to the circumstances of contemporary society’ and that I support ‘a form of constitutionalism in which the fundamentals of political organization are subject to determination by the pulling and hauling of ordinary politics’ (p.7). Since this statement again refers to my Preface statement, I fear what might follow when they ‘examine the coherence of that position’ (p.7).

I didn’t have to wait long to find out because, introducing the theme of rules about ruling, they state that ‘Loughlin wants to leave all questions [here we go again] to “the ordinary cut and thrust of politics”’ (p.9). And, to the contrary, they argue that:

Ordinary political contestation occurs within a framework of rules about ruling. Lack of entrenchment means that there is no stable framework within which political contestation can occur. It means that everything about politics, including the rules and norms for conducting it, is up for grabs. (p.16)

Who are they arguing against? This is not an argument against ‘against constitutionalism’, nor an argument against constitutional democracy. Anyone crazy enough to believe there are no rules is not even arguing against constitutional government; they are against government! I understand that in the USA trust in institutions has all but collapsed, but I don’t understand why they seek to lay that anxiety on me.

Their second chapter on ‘Democracy Without Rules’ thus descends into nonsense. Democracy is a system of governing; its character is obviously determined by rules. But they persist: ‘The entrenched constitutionalism Loughlin argues against and the constitution-as-statute occupy different points in a space of varieties of constitutionalism.’ (p.23) It is true that I argue against constitutionalism and that constitutionalism depends on entrenchment (see precept 4 above), but I do not argue against entrenchment per se. Being a question of degree, to argue against any form of entrenchment would amount to being opposed to constitutional government. And as I make clear in Against Constitutionalism (p.7): ‘The practices of constitutional government continue to exert a guiding influence over many contemporary systems of government, including those of France, Sweden, and the United Kingdom, which do not adhere to the precepts of constitutionalism.’ Paul Starr expresses the basic point concisely in his book on Entrenchment when explaining that democracy ‘abhors entrenched power’ but ‘a democratic government cannot exist without foundational rules that determine how its institutions work’ (p.xiii). It’s so obvious that it needs no further elaborating.

In this second chapter Tushnet and Bugaric deliberate over what they conceive to be various forms of constitutionalism. And they reach a surprising conclusion:

Entrenched constitutions, thin constitutions, and constitutions-as-statutes have upside benefits accompanied by downside costs. Where one comes out on the choice between them depends upon one’s assessment of the size and probabilities of the benefits and risks. We don’t think it obvious, to say the least, that in all circumstances the calculations come out against treating constitutions as ordinary statutes. Of course, doing so disrupts the way we’re used to thinking about the constitution. And we don’t propose it simply because we think that constitutional entrenchment is basically a bad idea—though we do. We propose it because, in our view, in many circumstances the relevant calculation comes out against entrenched constitutions. (p.27)

To be clear, here they come out as being against constitutionalism!

They try to fudge this by claiming that ‘constitutionalism is most often said to be primarily or largely about imposing limits on the ability of governing officials to act arbitrarily’ (p.30). Not so: pace McIlwain, that is a statement of the purpose of constitutional government, not constitutionalism. Their ruminations then extend to the rise of authoritarianism and the reasons for, and the limitations of, institutional safeguards. On this I have nothing to add to what I argued in Against Constitutionalism: that populism is best seen as a syndrome, a symptom of dissatisfaction to the ways in which across the world constitutional democracies are being reshaped by constitutionalism. Is it fanciful to think that, ultimately, Tushnet and Bugaric do not disagree?

All of this is by way of saying that I find their argument puzzling. Tushnet’s apparent antagonism towards my thesis runs counter to much of his earlier work. Sure, I reject their use of adjectival qualifiers – whether popular constitutionalism, thin constitutionalism or whatever – as offending Occam’s razor. But if it were simply a disagreement about semantics, they might just say so. I persist with my claim, though, because it is only once constitutionalism is more precisely specified that the trajectory of global developments can be more clearly identified. And I suspect there’s more to it than a disagreement over the meaning of a term. Tushnet’s twentieth century writings about the USA provided a more vehement critique of constitutionalism than my rather conservative defence of constitutional democracy against rampant constitutionalism offers. But he has since become a celebrated pioneer of comparative constitutional studies, a subject with global aspirations that, in many quarters at least, presents itself as a twenty-first century incarnation of Cold War Liberalism. Go figure.

Martin Loughlin is Emeritus Professor of Public Law at the London School of Economics & Political Science. You can reach him by e-mail at m.loughlin@lse.ac.uk.

Constitutionalism's Contemporary Critics

2026-09-08T09:30:00.000-04:00

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.

However, we are now seeing a somewhat different development within a wing of the legal academy. Consider the strikingly titled Against Constitutionialism, published in 2022 by Martin Loughlin, now an emeritus professor at the London School of Economics. The key syllable is the final one, the "ism." For Loughlin argued that contemporary constitutions have been cluttered up with too many provisions. That is, they are poorly designed, in part because the clutter entails, practically speaking, that their "interpretation" became the province of judges who in turn imposed their own understandings of inevitably controversial--and what participants in the interpretation wars often called "indeterminate"--clauses. Loughlin accepted the desirability of minimal constitutions that might, for example, only set out who actually was authorized to make (and thus coerce others through) laws, how they would be selected, and how long they could remain in office. Otherwise, constitutions would be quite silent on what precisely they could or could not do. Those decisions would be left up to ordinary politics. The remedy for legislation one did not like would presumably be "voting the rascals out" at the next election, not racing off to the courthouse looking for judicial disapproval of actions taken. Down this latter road lay what the late Ran Hirschl memorably termed "juristocracy," evoking overtones of both “aristocracy” and “autocracy” (and definitely not “democracy”).

Now come Mark Tushnet and Bojan Bugaric, who, like Loughlin, valorize ordinary politics as the method of resolving fundamental disputes in a complex society. To the extent that more complex constitutions are important at all, as opposed to creating what Mark Tushnet once described as simply “noise” of relatively little importance, they are at least as likely to be detrimental as positive, especially if positivity is linked with “progressive” politics. To the extent that constitutions are attempts to take certain issues "off the table" as impervious to ordinary politics, the authors are skeptical, if not outright hostile. Constitutionalism and Its Discontents suggests, with acknowledgment to Sigmund Freud, that constitutions and “constitutional interpretation" may more be neuroses to be overcome than a genuine solution for our problems. We should, the authors suggest, “scal[e] back our expectations for constitutionalism," which "might reduce some of our discontents. Doing so, though won't eliminate" them. "The most we can hope for, and it is no small thing, is to replace deep discontent with moderate anxiety.” Freud would presumably approve their “hope to replace 'misery [with] common unhappiness'" (p. 155). Still, they do see a role for constitutions, even if they might be viewed as allies of Loughlin in cautioning us against fetishizing them and turning them as "isms."

One of Tushnet's many previous books, Taking the Constitution Away from the Courts, can be read as a defense of what has come to be called "popular constitutionalism" as against what I have termed the "constitutional catholicism" articulated perhaps most memorably in the joint opinion of Justices Kennedy, O’Connor, and Souter now more than three decades ago in the Casey case reaffirming (at least a version) of Roe v. Wade. Judges, they said, had a duty to issue (and then to respect) binding edicts; citizens in turn had a duty to accept their status as binding. However, "protestant constitutionalism" rejects such a role by judges (and duty by obedient citizens). It is analogous to the radical dissenters who posited the "priesthood of all believers." Anyone within the spiritual community is entitled to read the relevant materials and to come to their own conclusions as to their meaning. Indeed, a previous book by these two coauthors, Power to the People: Constitutionalism in the Age of Populism, was an explicit critique of the attack on “populism” leveled by many members of the legal academy and political theorists.

But "popular constitutionalism" is congruent with the notion that the central task of the participant is interpreting what are in fact complicated sacred texts. So even “popular constitutionalism” plays on the notion that the Constitution provides a source of what a speaker might hope to serve as knock-down arguments against opponents. "What part of 'equal protection' do you not understand?! "'No law' means 'no law,' damn it!" And so on. “Minimal constitutionalism,” on the other hand, leaves relatively little to argue about. Thus, for example, there is no real debate about the “meaning” of the clause setting out the terms of national office. The length of the American presidential term is “obviously” four years—just read Article II. One can debate vigorously about the wisdom of this provision, but that very different topic from debating its “meaning.”

Still, for better or worse, institutional courts do play special roles in almost all political systems. One message of the two World Wars, especially for Europeans, was the importance not only of canonical written constitutions, but also the desirability of creating what were commonly called "constitutional courts" to serve as guardians of these constitutions. To be sure, that was not universal. The Netherlands rejected the idea of American-style judicial review, but they were the exception to what became a general rule. That is part of the "ism" that Loughlin criticizes.

Tushnet and Bugaric set out their thesis very early on: "The argument of the book as a whole is that constitutionalism is beset by the paradox that it aims to both empower democratic self-government and limit the exercise of that power" (p. 3). That is, "liberal constitutionalism" especially is grounded on a fear of governmental excess, leading directly to the traditional identification of constitutionalism with "limited government." Almost by definition, this places limits on what democratic majorities might wish to accomplish. But Tushnet and Bugaric recognize as well that many contemporary constitutionalists, almost always, as they are themselves, on the left, wish not only to “limit” potential mischief, but also also to make constitutions "programmatic" by requiring certain programs. Thus almost all constitutions drafted after World War II include provisions ostensibly requiring the state to supply certain goods and services, including education, health, access to jobs, or, more recently, a clean and healthy environment. One source of popular dissatisfaction is often the patent failure of actual political systems to live up to these apparent aspirations, in part, of course, because of the very limitations placed on the practical ability of government to act. What is striking is the skepticism that Tushnet and Bugaric express both about limitations and requirements. At very outset they tell their readers, "[W]e shouldn’t place too much hope in constitutional design as a method for dealing with the ever-present risk of democratic decline" (p. 3).

Tushnet is, with Mark Graber, Antonia Baraggia, and myself, the co-editor of what, come next year, will be the second of two books published by the Oxford University Press under the title "Constitutional Democracy in Crisis?" Essays assess contemporary developments on all continents save Antarctica. Even if some of the three-dozen essays offer a critique of the "chicken-little" mentality and suggest that perhaps we're only going through a relatively predictable cycle of democratic ebbs after some significant flows following, say, the demise of the Soviet Union or the end of apartheid in South Africa, the overall tone of the book is quite somber. And, if one does fear that constitutional democracy is undergoing a significant crisis, defined by doctors as the moment when a patient will possibly die should the fever not break or some organ start working again, then the question becomes Lenin's from long ago: What is to be done? No one, these authors tell us, should look to constitutional forms or to judges to save us.

"The alternative to constitutionalism"--again the "ism" is crucial--"is a vigorous democratic politics in which a wide range of value positions--including values rooted in a nation’s constitution---and an equally wide range of policy positions contend for support by a majority." (p. 5). Democratic elections should have consequences, which is often not the case in the United States given the multitude of "checks and balances" and “veto points” standing in the way of genuinely democratic empowerment. To be sure, the losers will often be unhappy about these consequences, sometimes very unhappy. But the answer, in the words of Joe Hill a century ago, is "Don't Mourn [or race off to the courthouse]. Organize!” Perhaps barroom arguments can still occur about the meanings of the genuinely inspiring aspirations set out in the Preamble to the Constitution. But no one should think that these are anything other than invitations to intense and perhaps acrimonious conversations. They are what political philosophers call "essentially contested concepts," which means, by definition, that there will never be agreed upon final answers. Conversation (or politics) is all there is, and to ask judges to provide "final" answers is chimerical.

Loughlin and Tushnet & Bugaric have made me question how extensive a notion of constitutionalism I should continue to support, but they are not, at least in my reading, genuine opponents of the very idea of looking to constitutions as providing the basis for at least some kinds of political “settlements.” Perhaps the most practical problem facing supporters of “minimal” constitutionalism is deciding how truly minimal they can be with regard to what one might consider the most basic predicate of the “democracy” that all of these authors defend. NYU’s Samuel Issacharoff, a co-editor of the tellingly (and I believe misleadingly) titled casebook The Law of Democracy, rightly emphasizes the importance of election systems and the all-important willingness of losers to accept defeat gracefully and to begin organizing, peacefully, for the next election.

But we have all learned that a “democratic election system” is not a self-evident concept. One must decide, among other things, who can participate and under what conditions will elections take place (e.g., how easy or difficult will the actual act of voting be)? There are also a multitude of questions with regard to the amount of time the winners should be allowed to occupy their offices (and thus to pass laws that will inevitably antagonize many of the losers). The United States is “exceptional” in making its “representatives” face the voters every two years. It was common in recent years--as against the "founding" period--to view such frequent elections as a “bug” and not a “feature” of American politics. This year, however, I suspect that most readers of this review will view the “midterms”--and the fact that every single Representative must face the electorate--as perhaps the salvation of an embattled republic. Similarly, the oft-expressed disdain for the fact that all elections in the United States are in fact conducted by state and local officials is being repudiated by many today, who are altogether relieved that Donald J. Trump and his minions cannot in fact exercise what would be scary control of these election processes. But one can still believe that reliance on state and local officials, many of them highly partisan, many others simply inexperienced and underfunded, presents deep problems. So consider the fact that one of Tushnet’s other books, The New Fourth Branch, presents an admiring account of countries, including Mexico, that have in effect attempted to constitutionalize an independent agency entrusted with assuring the honest conduct of elections. Even a “minimal constitution” might nonetheless have to establish an institution relatively impervious to ordinary politics, inasmuch as elections (and constitutions) establish the stage settings within which the drama of democratic politics, often characterized by rancor, takes place.

“Constitutional design,” like so many aspects of politics, is ultimately a search for the Goldilocks point of a “just right” rigidity—and to believe that the “right answer” at time T will still be the case at T+1 or, even more absurdly, at T+10. One might well agree that the U.S. Constitution (and many others) are out of balance and that “juristocracy” is, for a variety of reasons, not the answer. But even minimal constitutions profess the ability to establish basic—and relatively binding—rules as to how “politics” will be defined and carried out. So can “we”—and who constitute the “we” is obviously itself a crucial question—agree on what constitutes “minimalism”? When does “minimalism” mean potential surrender to the mob; concomitantly, when do limits on the ability of “We the People” to engage in a system of majority rule devoid of multiple “checks and balances” serve less to preserve fundamental liberties or achieving necessary political concord among conflicting groups and instead become illegitimate “veto points” that privilege stasis over needed change? Moreover, it is essential that a contemporary student of “constitutional design” pay attention to latter-day critics of election-focused “representative democracy,” such as Yale’s Helene Landemore, and take seriously not only the appeal, to some, of so-called “direct democracy,” but also, and far more interestingly, of integrating some forms of “lottocracy,” i.e., selection of at least some governing officials by lottery. One might well want to “constitutionalize many of these decisions, for at least some period of time, rather than leave them to the rough-and-tumble of ordinary politics in which there is always a clear-and-present danger that the “ins” will wish to rig the next election in order to maintain themselves in power. All electoral systems have practical consequences. It is not that they are “above politics,” but one can still wish, at the very least, to make changing such systems more difficult than passing ordinary legislation, and that is basically what “constitutions” do.

One might well agree that we should, as a country, embark on the therapy that Tushnet and Bogarich counsel, one of whose lessons is to accept inevitable disappointments. But we’re not ready to terminate it. Instead, we might agree with Philip Roth’s fictional therapist, Dr. Spielvogel, who ended Portnoy’s Complaint, (perhaps) quoting Freud: “Now ve shall perhaps begin?” One might well hope that Constitutionalism and Its Discontents will begin several long overdue discussions even if it by no means constitutes the last word.