Balkinization

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.

The Lost Art of the Deal

2026-09-08T08:03:47.103-04:00

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

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

On the other hand, skilled negotiating can obtain far better results than amateurish efforts. As House Minority Leader, Rep. Nancy Pelosi repeatedly fashioned agreements with then-Speaker John Boehner that advanced Democratic priorities enormously. She did this by recognizing that the Freedom Caucus had the Speaker boxed in and was refusing to move off their maximalist demands. By being friendlier than the Freedom Caucus, and slightly more flexible, she gave Speaker Boehner an alternative. Far from gaining power, the Freedom Caucus’s “just say ‘no’” philosophy empowered their ideological enemies. Repeatedly. Rep. Pelosi said “no” a lot, too, but she accurately assessed the limits of her leverage and made a deal when she had extracted all that she could get. These achievements have gone underappreciated because trumpeting them would have embarrassed Speaker Boehner and closed the door on future such deals. Much of the loyalty Rep. Pelosi enjoyed from Democratic Members sprang from admiration for her rare negotiating skills.

Another key element of negotiation is to understand how one’s adversary’s priorities differ from one’s own. Although reducing all politics to a single left-right scale has become fashionable, that is rarely the case in reality: priorities are commonly non-linear. I once obtained some very nice substantive provisions in exchange for agreeing to a silly name change. In crafting pandemic relief legislation, Republicans wanted bail-outs for big business, bail-outs for small business, and little or no expanded unemployment benefits or aid to state and local governments. Democrats, in turn, opposed bail-outs for large business, had mixed feelings about bail-outs for small business, and wanted to expand unemployment benefits and inter-governmental aid. But the fervency with which the parties held these preferences was not at all equal.

Republicans were most interested by far in big business; Democrats were most interested by far in expanding unemployment benefits and keeping state and local governments from slashing human services and jobs. The resulting legislation contained wildly generous bail-outs for big business whose accountability provisions were obviously ineffectual and an expansion of unemployment benefits far more generous than anything that had been seriously proposed earlier as well as the best-designed inter-governmental aid package in recent memory. The parties worked amicably to craft a sound small business bail-out.

Critics denounced the big business bail-outs as “corporate welfare” – which of course they were – and condemned Democratic negotiators as incompetent for not insisting on real accountability procedures. They mostly ignored the unemployment compensation and inter-governmental aid provisions because those were obviously the “right thing to do”, as if their merit ensured their inclusion in the final package. But Sen. McConnell had not suddenly become a socialist; he had no interest in unemployment compensation, and he knew that Republicans had fared quite well in past public fights over unemployment benefits. The egregious corporate welfare was the price for the urgently needed unemployment compensation and state and local aid. Democratic leaders could have publicly condemned the corporate welfare, but that would have prompted Republican leaders to publicly condemn the expanded unemployment compensation. The result would have been that any future expansions of unemployment benefits would have been much harder to negotiate.

Risk aversion drives innumerable business deals and litigation settlements yet somehow many people fail to appreciate how central it is to legislative deal-making. Legislative deals commonly get made when neither party really knows how a public confrontation would play out. Critics say “if you had held out, you could have gotten more” – which is true, but it is also true that holding out might have gotten them less, perhaps much less. The Fall 2025 government shutdown should never have happened: the Democrats’ message reeked of hostage-taking (“give us the health insurance subsidies we want or we will shut down your government”), and messages like that have regularly failed in past shutdowns. The more germane message – “we will not agree to a budget deal without statutory guarantees that the President will not impound funding for programs we care about” – was hard to convert into soundbites and thus also likely a loser. (The President’s subsequent choice to limit disaster aid to red states may have made that argument easier to explain.) The shutdown occurred because outsider critics not steeped in the history of what arguments have and have not prevailed in past government shutdowns demanded that Democratic leaders “show some backbone”, and the leaders caved to the critics. Ironically, this showed that the leaders did not have enough backbone as the shutdown hurt both Democrats’ political leverage and the SNAP recipients and others who could not meet their basic needs.

Political professionals often recognize risks, or weaknesses in their position, that outsiders cannot see. I was in negotiations when the Democrats were in the majority but one key Member, with a very progressive public image, had privately told us that he would not support us on the issue if it came to a public fight. We therefore knew we had to make a deal or we would lose completely. Fortunately, the Republicans assumed that we had the votes because they could not imagine this Member turning his back on us. We managed to get far more than we would have in an open fight. But we could not publicly explain why we made the concessions we did (even now, I am being rather elliptical) because that would have emboldened the Republicans to press harder on that and related issues and potentially alienated us from an ally we needed for other fights. When Democratic leaders settle for pennies on the dollar, it is often because they know too many of their Members will defect on the next vote to hold the line; when they settle for nickels on the dollar, they strongly suspect that might happen.

Perhaps the most aggravating misconception about negotiations is that they are really nothing more than difference-splitting. By this logic, every time one side makes their position more extreme, they improve the ultimate outcome. If this were true, one must ask why everyone, including the other side, does not do it and what principle limits how much one can elevate one’s demands. This would make Sens. Bernie Sanders and Ted Cruz the most effective senators in their respective parties, yet I am guessing most readers have never heard of the Sanders Act or the Cruz Amendment. Nonetheless, outside critics continually insist that Democrats’ disappointing results stem from their not having demanded enough.

In political strategy as in investments, if it sounds too good to be true, it probably is. Effective negotiation requires some mutual belief in good faith among the negotiators. When one side demands something that they clearly could never get in an open fight and that appears to have been added to their list in an effort to pull the mid-point in their direction, the other side will insist that that demand be laid to the side before negotiations can begin. If the first party refuses, their opponent then adds a bad-faith demand of their own and waits for the first party to show that they are serious by proposing to drop the extreme demands from each side at once. Sometimes making an absurd demand so angers the other side that it raises its price to begin negotiations, perhaps to dropping the absurd demand and conceding something else. Of course the first party can refuse, but that just postpones the start of meaningful negotiations – which could have been done in other, less insulting, ways.

Progressives who ridicule assumptions of perfect rationality from conservative economists nonetheless assume that negotiators are perfectly rational. They are not. I have blown up negotiations that I needed to succeed because the other side was being too abusive; I have had opponents do the same when they felt I was taking a position in bad faith.

This is not to say that low-balling one’s demands is consistently correct, either. Not infrequently, something very meaningful to you is only mildly objectionable to the other side and can be included in the deal at relatively little cost. I was once trying to solve a problem and put four fixes of different kinds on the table, hoping one would get through. The other side absolutely hated one of my ideas; they gave me the other three (which I liked better anyway) to drop the fourth. But all four of my proposals made sound policy sense in terms persuasive to neutrals and moderates; none insulted the other side’s intelligence or looked like things I could not effectively fight for in public. And the reason my conceding the one was worth something in exchange is that they thought I could win a fight for it.

Much of the Left, and much of the Right, have become so fiercely loyal to their partisan positions that they have lost the ability to understand the other side’s perspective. Effective negotiation demands precisely that kind of insight. The more one can see problems through the other side’s eyes, the better one’s chance of designing a proposal that combines viability in an open fight (if it were to come to that) and sufficient tolerability for the other side that the proposal can make it into the final deal. Yet in many circles, pursuing this sort of understanding is seen as disloyalty or feeble-heartedness.

Despite progressives’ current fixation on “what would we do if we had all the power” discussions, the U.S. electorate remains very closely divided. Republicans have won half of the last two, four, six, eight, and ten presidential elections and have structural advantages in the Senate and the House. Unless and until we persuade substantially more of the electorate of our principles and program, negotiations will be crucial to making progress. Some Republicans, such as Sen. Mitch McConnell, are very skilled negotiators; others, such as President Trump, are not. We can achieve much better results, and avoid unnecessary divisiveness, if we recognize that negotiation is a sophisticated process involving information and inferences that are simply unavailable to outsiders. Some Democrats really are terrible negotiators – I can think of one well-respected senior Democrat I would not trust to negotiate for my lunch money – but reliably judging a result from the outside is rarely possible except in very extreme cases.

@DavidASuper.bsky.social @DavidASuper1

The Enduring Significance of Peggy Sue Got Married (and Constitutionalism and its Discontents)

2026-09-07T09:30:00.000-04:00

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

The movies “Back to the Future” and “Peggy Sue Got Married” offer different perspectives on the possibility that human beings through reflection and choice can fundamentally alter their condition. In “Back to the Future,” the protagonist enables his father to change his fortunes in the present by changing his father’s actions in the past. In “Peggy Sue Got Married,” a different time traveler changes her actions in the past, but the result is merely a different path to a similar present. Michael J. Fox’s fate is determined by his actions, while deeper structures are responsible for the fate of Kathleen Turner.

Mark Tushnet and Bojan Bugaric in their acclaimed Constitutionalism and its Discontents take no clear position on the debate between “Back to the Future” and “Peggy Sue Got Married.” They have other, more important fish to fry. Tushnet and Bugaric’s discussion of a world without rules about ruling implies that entrenchment is a human choice, that populations can decide whether to have a constitutional regime. Their admission that “discontents may be so bult into modern constitutions that they will persist even if [their proposed] changes are adopted” (3) suggests that entrenchment is a basic enduring structure of contemporary political life. Perhaps one day one or both will write a book on the role of human choice and deep structures in constitutional development. Constitutionalism and its Discontents is not that book and, to be clear, makes no pretense of being that book.

Thinking about human choice and deep structures may nevertheless clarify a central theme of Constitutionalism and its Discontents, that creeping authoritarianism around the world is better combatted by policies that combat the inegalitarian impact of globalization than by constitutional rules that entrench political guardrails. The central question the book raises is whether human beings can choose to make better entrenchments than whether they can decide not to entrench or constitutionalize anything. Entrenchments of one form or another are baked into political life. Whether certain economic structures are also baked into political life is beyond the scope of Constitutionalism and its Discontents and this review.

“Peggy Sue Got Married” provides a better framework for thinking about constitutional entrenchments than “Back to the Future.” The democratic/majoritarian politics Constitutionalism and its Discontent favor and propose to improve concern how to entrench policies as well as about making policies. Were Tushnet and Bugaric able to transform a constitutional regime into a regime lacking fixed rules about ruling that regime would soon transform back into a constitutional regime with legal, political, and cultural entrenchments. Political entrepreneurs would either directly entrench or find workabouts for entrenching what they believed were fundamental rights, vital interests, desirable policies, and valued procedures.

Achieving a world without entrenched rules about ruling or anything else seems simple. Tushnet and Bugaric are not anarchists. They insist only that all constitutional rules be revised consistently with the rules for revising ordinary rules. The same rules that determine whether the income tax should be progressive should determine the length of a presidential term or the extent to which religious believers enjoy exemptions from general laws. Such a regime might be brought into being by a constitutional amendment declaring “all rules in this constitution may be revised by the ordinary processes for making laws.” Those concerned about the existing rules for making rules should add another constitutional amendment specifying more desirable rules for making rules.

This entrenchment/constitutionalism free world will not last long. Circumstances will soon arise in which majorities in the present will be tempted to make some rules more difficult to revise than others. Popular majorities may think investors in the regime need more security for their property rights than offered by the no-entrenchment regime. They may think beneficial a deal by which Canada joins the United States in return for the permanent guarantee of twenty Senators. Political authorities might encourage investors and Canadians to read Constitutionalism and its Discontents and other literature (Mark A. Graber, “Constitutions as Constraints,” 83 Maryland Law Review 1059 [2024]) comes to my mind, if no others), but if they hold firm and popular majorities insist on an entrenchment, constitutional authorities will face a dilemma. They can entrench the rules preferred by investors and Canadians or treat the no entrenchment amendment as an entrenchment barring popular majorities from entrenching any rule. Whatever they do will result in an entrenchment of some sort.

Legal entrenchments are tools that popular majorities use to achieve goals. Popular majorities may decide that obtaining present investments and having Canada join the Union are worth sacrificing flexibility in the future on some matters. Tushnet and Bugaric discuss in fine detail and approve similar practices that allow presidents and others gain present powers (determining the details of communications policies) by surrendering future powers (they cannot fire the head of the Federal Communications Commission for any reason). An entrenched rule against entrenchments is just as much an entrenched rule about ruling that limits what present majorities can do as any other entrenched rule. Whether such a rule is advisable, Tushnet and Bugaric remind us, depends on circumstances rather than abstractions. Some entrenchments designed to prevent slides to authoritarianism, they note, do not work as well advertised. Still, as the above examples indicate, many political choices depend on what the constitutional rules shall be rather than on whether to have any entrenched rules at all.

Regimes have numerous ways of entrenching rules other than as legal constraints not revisable by ordinary legislation that serve as effective if not more effective workarounds for bans on entrenchments. Constitutions configure as well as constrain politics. Rather than ask for an entrenched rule, investors and Canadians restructure the processes by which popular majorities make law. They propose a third house of Congress, the House of Investors and Canadians, that has the power to veto any proposed law. This “ordinary” rule can be altered by the processes for revising any other law. The problem is that once the rule exists, Canadians and investors in the Third House of Congress are unlikely to agree to a better law. On reflection, Canadians and investors may think that making an ordinary revisable law that increases their political power is a better entrenchment than legally entrenching some law that in the future will be implemented by democratic socialists who favor “Lake America.” Again, those who prefer some version of democratic majoritarianism to constitutionalism reach the same dilemma. Either popular majorities entrench legally rules that constrain undemocratic changes or they empower popular majorities to entrench rules politically that make their repeal less likely than if those rules were merely entrenched legally,

The constitutive function of constitutions creates another opportunity for entrenchment. Investors and Canadians inspired by Madison’s observation that a fundamental purpose of constitutional provisions is to “impress the degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, as one man, when the power of Government is unlawfully exercised” might prefer cultural entrenchments to legal or political entrenchments. Popular majorities that favor this form of constitutionalism will amend the constitution or laws to include a revisable provision declaring that investors and Canadians are vital to the constitutional endeavor and to pass mandating that the significance of investors and Canadians be emphasized in every elementary, middle and high school in the United States. A fair probability exists that by culturally entrenching the value of investors and Canadians, investors and Canadians will achieve more protection in the long run than if the constitution and laws provided only political and legal entrenchments

The “Peggy Sue Got Married” problem with entrenchments and constitutionalism exists in large part because all legal changes change the status quo. The choices people make at one time determine the options available in the future, the processes by which people make decisions, who are the people who make those decisions, and what those people wish to achieve through politics. Do-overs exist in movies, but not in politics. Present majorities cannot choose to preserve the dodo bird because past policies resulted in the extinction of that species. A present decision to adopt a parliamentary decision changes the political balance of power in the future. A decision to annex Canada impacts who decision makers are in the future. A decision to abandon Diversity, Equity, and Inclusiveness changes the values of those future people. Much of democratic politics, these examples suggest, are efforts to create legal, political, and cultural entrenchments that will preserve for the indefinite future what present majorities think are fundamental rights, vital interest, desirable policies, and valued procedures.

These struggles over what to entrench, in keeping with the “Peggy Sue Got Married” theme, change the path by which Tushnet and Bugaric reach their final, most important, conclusion, but not the conclusion they reach. One central teaching of Constitutionalism and its Discontents is that democracy is best maintained by a politics that promotes a strong and confident middle class than by policies that legally entrench certain rules of the game. That strong middle class when in power will inevitably engage in some combination of legal, political, and cultural entrenchments that democratic majorities at a particular time think will sustain a strong, middle class. Popular populist majorities will establish guardrails that they believe will best prevent severe economic inequalities from reoccurring. They will adopt political processes that they believe most likely to maintain an egalitarian political order. They will socialize citizens so that more people favor the merits of egalitarianism when compared to neo-liberalism. Many if not all of these entrenchments will be subject to the concerns Tushnet and Bugaric raise. Entrenchments that work in some times and in some places will not work at other times and other places. Entrenchments that do not work as expected will nevertheless create persons will strong interests in maintaining them. This is no reason to discard entrenchment or constitutionalism. As Tushnet and Bugaric acknowledge, people often have to sacrifice future power to do want they think more vital in the present. Democratic politics is an ongoing struggle on unbalanced playing fields, not one that can be resolved by any form of present entrenchment.

Constitutionalism and the Discontents of Judicial Power

2026-09-06T09:30:00.000-04:00

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

Fernanda G. Nicola

Mark Tushnet and Bojan Bugaric begin Constitutionalism and Its Discontents with an elegant paradox: constitutionalism simultaneously empowers democratic self-government and limits the exercise of democratic power. More provocatively, constraining power in the name of freedom may itself expand power. This serves as useful point of departure for a book that asks us not simply whether constitutionalism works, but whether some of the pathologies we associate with contemporary constitutional democracy are generated by constitutionalism itself.

The title’s invocation of Freud is especially on point. In Civilization and Its Discontents, civilization responds to human vulnerability, our bodily frailty, the hostility of the natural world, and the difficulties of social relations through cultural and social restraints that become sources of dissatisfaction. Yet we cannot simply abandon civilization to escape those constraints because those same constraints make collective life possible. The answer is not to eliminate discontent but to find a way to live with it.

Something similar occurs in constitutionalism. Constitutions constrain political power in the name of freedom, but those constraints necessarily create or enlarge power somewhere else: in courts, lawyers, constitutional designers, administrative institutions, or past political majorities whose choices become entrenched against present ones. Constitutionalism is therefore caught between empowering democratic self-government and limiting the exercise of that very power.

This recalls another famous set of discontents, liberalism’s persistent difficulty in reconciling individual liberty with equality. Ronald Dworkin’s famous response in Liberalism and its Discontents was to deepen constitutional interpretation through a moral reading of the Constitution. Boldly, Tushnet and Bugaric travel in an almost opposite direction. Instead of asking constitutional law to resolve fundamental political disagreements, they invite us to scale down our expectations of constitutionalism and defend a thinner, predominantly procedural version of it. And perhaps, they suggest, constitutionalism’s paradox can be loosened not simply by making constitutionalism thinner, but by making it more political.

The Judicial Review Paradox

Judicial review provides perhaps the clearest illustration. Courts embody precisely the paradox that Tushnet and Bugaric diagnose. Judicial review limits governmental power, but it simultaneously transfers enormous authority to judges and high courts so that “constitutional rights do not appear to be better protected in countries with independent courts equipped with the power of judicial review. The main reason behind this paradox is the fact that the enforcement of rights ultimately falls on citizens themselves.” (p. 268)

This is not merely the familiar counter majoritarian difficulty. The expansion of judicial review can transform political disagreement into legal debate, making important questions of equality, distribution, executive authority, immigration, or democratic participation subject to constitutional interpretation in the courts. Lawyers and judges thereby acquire a privileged position in deciding conflicts that originate outside law and cannot be addressed through law alone or without broader social and political mobilization.

Tushnet and Bugaric resist the constitutionalist instinct that answers every failure of politics with additional constitutional law. But the contemporary authoritarian challenge makes the problem considerably more complicated. If strengthening courts can weaken democratic self-government, weakening some courts can also strengthen authoritarian power.

When Authoritarians Attack Courts

Tushnet and Bugaric’s paradox of constitutionalism becomes particularly acute when courts themselves come under authoritarian attack. In my own work comparing the U.S. and the EU, I distinguish among three forms of attack: personal, institutional, and attacks through ideology. Personal attacks delegitimize judges, institutional attacks alter appointments, discipline, jurisdiction, or remedies, while attacks through ideology aim to contest the legitimacy of judicial constraints themselves. All three undermine the authority of courts to operate as checks on political power.

Poland provides perhaps the clearest European example. Beginning in 2015, the Law and Justice (PiS) government portrayed judges as a privileged elite obstructing democratic will. Personal attacks were followed by disciplinary mechanisms, restructuring of the National Council of the Judiciary, and the so called “muzzle law,” which subjected judges to disciplinary proceedings for questioning judicial appointments or criticizing government reforms.

Constitutional identity, national sovereignty, and democratic self-determination became arguments for resisting European judicial supervision and contesting judicial constraints on political majorities. Concepts designed to preserve constitutional pluralism transformed from shields protecting national autonomy into swords directed against the institutions capable of constraining political power. Ideology here redeploys legal and constitutional ideals with genuine normative force to legitimate an illiberal and undemocratic allocation of political power.

The U.S. presents a parallel, although institutionally different, development. An increasingly expansive version of unitary executive theory portrays judicial and administrative constraints as illegitimate impediments to presidential authority. Courts themselves can participate in this redistribution of power, as judicial doctrines dismantling constraints on presidential removal power strengthen executive authority rather than restrain it. Constitutional stemming from the Supreme Court participate in constructing and legitimizing authoritarian allocations of power.

Here, Tushnet and Bugaric’s paradox helps us rethink not only whether taming authoritarian power might expand constitutional power, but its inverse: does weakening constitutional constraints expand authoritarian power? That question makes it difficult to either embrace judicial supremacy, as a safeguard against authoritarianism, or simply to celebrate its retreat.
Courts Cannot Save Democracy

Contemporary critiques of judicial review exercised by apex courts contain an important element of truth. Courts rarely defeat authoritarian populism on their own. Judicial victories may be partial, delayed, circumvented, or politically fragile. Governments can adapt to adverse decisions and even use them to reinforce a populist narrative in which unelected judges obstruct the democratic will of ordinary citizens. At best, judicial review may slow, complicate, and occasionally reverse processes of democratic erosion while creating political and institutional space for broader resistance.

But the lesson cannot be that judicial independence is dispensable.

Authoritarian governments themselves demonstrate why. They expend considerable political capital restructuring judicial appointments, disciplining judges, limiting remedies, intimidating lawyers, and contesting the binding force of judicial decisions precisely because independent courts can constrain their power. Moreover, attacks on judicial independence frequently occur alongside attacks on civil society, universities, independent media, local governments, and the legal profession. The target is not simply the judiciary, but the network of institutions capable of imposing limits on concentrated political power.

This suggests a more modest, but no less important, understanding of judicial power. Courts do not save democracy. They can, however, preserve the institutional space within which democratic politics can continue. Independent courts can protect individuals and associations from immediate abuses of executive power, preserve avenues for political opposition, enforce procedural constraints, sustain domestic and transnational mobilization, and buy time for democratic resistance. Their victories may be incremental and temporary, but those victories can preserve the conditions under which political resistance and eventual democratic reconstruction remain possible.

This is why I resist both the romanticization of judicial review and its wholesale rejection. Judicial independence is a necessary but insufficient condition for constitutional democracy. Courts matter not because judges possess some superior capacity to resolve political disagreement, but because they form one component of a democratic ecosystem.

From Ordinary Politics to Constitutional Politics

Returning political and social questions from courts to legislatures does not itself democratize the conditions under which those questions are decided. The alternative to juristocracy, therefore, cannot simply be majoritarianism. Nor should the alternative to constitutional law be politics understood only as electoral competition.

What Tushnet and Bugaric argue for instead is constitutional politics, an understanding of constitutional democracy as sustained through interactions among courts, political parties, legislatures, social movements, advocates, journalists, local governments, civil society organizations, and citizens. Their turn toward constitutional politics is enormously attractive because it challenges the tendency of constitutional lawyers to imagine that constitutional problems necessarily require constitutional law solutions. It reconnects constitutional change with political parties, social movements, civil society, and democratic mobilization, rather than treating courts as the principal engines of political transformation. But constitutional politics is not an innocent or neutral space. It is structured by inequalities of wealth, political organization, access, information, and voice, inequalities into which the authors do not delve sufficiently. Moving constitutional questions away from courts and into politics does not make these inequalities disappear. It may simply relocate the struggle over constitutional power.

But the authors suggest a slightly different response to constitutionalism’s discontents. Perhaps the goal should not be to discover the optimal amount of constitutional politics or the proper balance between law and politics in the abstract. The more important question is how constitutional power is distributed across a democratic ecosystem in concrete cases. Constitutional politics, on this account, is less about identifying the institution entitled to have the final word than about sustaining the institutional and social conditions under which constitutional meaning remains open to contestation.

Freud did not promise civilization without discontent. Tushnet and Bugaric do not promise constitutionalism without its paradoxes. Their achievement is instead to make us suspicious of the recurring constitutionalist fantasy that the failures of democratic politics can be solved simply by adding more constitutional law. If the paradox cannot be solved, constitutional politics may at least allow us to live with it.

Fernanda G. Nicola is a Professor at American University Washington College of Law, and she can be reached at fnicola@american.edu.

Democratic constitutionalism and the end of class-based societies

2026-09-05T09:30:00.000-04:00

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

Roberto Gargarella

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

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

In any case, and beyond my expressed general agreement with the book's main perspectives, I would like to use the little space I have left to establish a point of partial disagreement, which perhaps suggests the presence of somewhat larger disagreements, both in diagnosis and in proposals. The disagreements I have in mind are particularly evident in chapter ten—the last and most proactive: "Preventing Democratic Decline: The Role of Political Parties." In my opinion, this chapter most clearly exhibits a certain diagnostic error regarding the ills that currently afflict democratic constitutionalism, one that was already apparent in the preceding chapters.

The diagnostic problem seems clear in almost every proposal presented here to prevent democratic decline. Thus, for example, when the authors state that "political leaders need to regain credibility by delivering simple and palpable benefits, such as good salaries, decent pensions..."; when they repeatedly assess that "major parties just miscalculated" how to act in times of crisis; when they suggest new forms of "interactions between party members and the party organizations"; when they advise "patience until party leaders on their own figure out strategies to improve their responsiveness to their 'ordinary workers' members"; when they insist on the idea of ??"strengthening party leadership"; and so on.

I believe that relying on partisan politics; the old (or renewed) political parties; party leadership; social mobilization around parties, etc., as a response to the current crisis, is misguided. This is because the social and economic conditions that gave meaning to political parties, and more generally to traditional forms of political representation, have disappeared. The key—in my opinion—is that we are undergoing a difficult transition from a class society (a few internally homogeneous social classes with stable interests) to a society with significant economic dispersion (self-employed, freelancers, part-time workers, the unemployed, informal workers, etc.) and a radical multiculturalism. In social and cultural terms, our societies not only appear fragmented into a vast diversity of groups with heterogeneous identities and/or interests (women, indigenous people, ethnic minorities, etc.), but also—in addition—each person exhibits a multifaceted identity. Today it is difficult to define someone -as in the past- as a worker, or a feminist, or an anarchist. That person can be, at the same time, a worker, a feminist, anti-immigrant, pro-drug use, anti-gun, anti-abortion: each of these facets, added together, constitute a person's identity. The "problem" that this situation generates is serious because therein lies the promise of an unrepresentable political perspective. The issue is grave because our entire constitutional structure, along with our political-party organization, has been prepared for a society that no longer exists and that cannot be recreated on its old terms. This is why the old constitutional structure is outdated (different branches of government representing different sectors of society, as in the idea of ??"Lords and Commons" or "the few and the many"); and the "old toolbox" of constitutionalism (more constitutional rights, more courts) is no longer useful. This is why it no longer makes sense to redesign political parties, or to continue betting on old forms of political representation, or to make proposals to strengthen party leadership. The fact is that the traditional "constitutional framework" has become a "tight suit" that no longer fits the "body" of these new societies, and the remedy of party politics that we appealed to in the 20th century (in order to continue making political representation possible). It no longer serves us -now, at the beginning of the 21st century- to achieve the old “noble dream” of constitutionalism (full inclusion/full social representation, checks and balances, etc.).

The social, economic, and cultural changes that our societies have been undergoing since the end of the 20th century require new political and constitutional responses. These responses must move beyond nostalgia for a bygone era that we will not recover (the era of strong political parties and unions, of large social movements). Furthermore, these responses must be attentive to the need for new forms of representation (perhaps representation to decide on a single issue and then dissolve, as sometimes happens in the new Citizens' Assemblies). And, of course, these responses must be aware of the troubling legacy of old practices: captured institutions; political elites that are difficult to remove from their public positions; party leaders who, once in power, seek to erode the old system of checks and balances, and so on.

In their new book, Tuhnet and Bugaric show themselves open to some of the alternatives I have just suggested —for instance, they have warmly welcomed initiatives such as Citizens' Assemblies and other renewed forms of political participation—but their underlying analysis remains anchored in assumptions and proposals specific to a society that no longer exists. Nevertheless, the sharpness, curiosity, critical analysis, and open-mindedness that continue to characterize their study of the state of democratic constitutionalism are highly commendable.

Roberto Gargarella is Professor of Constitutional Law at the Universidad de Buenos Aires. You can reach him by e-mail at roberto.gargarella@gmail.com.

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

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

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

Jedediah Britton-Purdy

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

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

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

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

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

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

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

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

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

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

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

Jedediah Britton-Purdy

Raphael Lemkin Distinguish Professor, Duke University School of Law

purdy@law.duke.edu

Does Congress Have the Power to Ban Non-Citizen Voting?

2026-09-04T07:58:23.577-04:00

The Administration's request for emergency relief with respect to its proposed regulations on mail-in voting raises complex issues that cannot be decided on the papers. The Court should hear argument and get full briefing, which in practice means that the rules probably cannot be implemented this year.

For example, the Executive Order at issue in the current litigation starts out by saying: "The right to vote in Federal elections is reserved exclusively for citizens of the United States under the Constitution and Federal law." This is a contestable proposition. The Constitution does not set forth a rule that only US citizens can vote. Section 2 of the Fourteenth Amendment implies only that states can ban aliens from voting. Before and after the Fourteenth Amendment's ratification, some states did permit some aliens to vote. If the Constitution reserves that question for the states, then I'm not sure if Congress can make it illegal for non-citizens to vote, which is part of the statutory basis for the Executive Order.

But there are arguments on the other side. John Bingham was most prominent constitutional leader who thought that the Constitution (at least the 1787 version) barred non-citizens from voting. He made this argument at length to Congress, though his view was rejected in the 1850s for the admission of states like Minnesota that permitted alien voting.

The upshot is that these are deep waters that make a quick ruling with limited filings unwise.

APSA Panel and Symposium on The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It

2026-09-03T10:07:59.571-04:00

For those who are attending the American Political Science Association, please join us Friday, September 4 at 2 PM, for a panel on my book, *The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought To Defend It*, with a terrific lineup, including Stephen Macedo, Emily Zackin, Jason Frank, Angelica Bernall, and Jeffrey Tulis. Also perhaps of interest is a recently published symposium on the book, with papers by Emily, Jason, Angelica, and Shep Melnick: https://www.journals.uchicago.edu/toc/apt/2026/15/3

Constitutionalism in Times of Democratic Backsliding

2026-09-03T09:30:00.000-04:00

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

Laura Gamboa

Though often thought as linear and cohesive the literature on democratic resilience struggles with two relatively opposing premises. On the one hand, the rise of would-be-autocrats is portrayed as the outcome of political establishments unable to adequately represent voters and strong well-entrenched institutions that sustain minority government.[1] On the other hand, scholars contend, would be autocrats are more likely to succeed when they are fighting weak unentrenched institutions that can be easily amended or erased to undermine the checks on the executive.[2]

Scholars and practitioners interested in curbing the erosion of democracy, are therefore, based with a dilemma. Should we strive for well-entrenched hard to change constitution? Or should we design charters that majorities can easily change?

Constitutionalism and its Discontents takes up that question. In it, Mark Tushnet and Bojan Bugaric make a case against constitutionalism: “rules about ruling,” they posit, should be subject to the same forms of political contestation that we use for ordinary policies

Constitutionalism—or the entrenchment of rules about ruling—is not without merits. As the authors recognize, deep-seated rules can provide a more stable framework for political contestation. After all, institutions constrain the set of possible outcomes.[3] They lengthen actors’ time horizons and stabilize their expectations. When the rules of the game are set, elites know what they are playing for and what to expect if they lose. On the contrary, when they easily changed everything is up for grabs; there is no constraint to the set of possible outcomes, and losing becomes all of the sudden more costly.

Yet, as Tushnet and Bugaric highlight, this kind of stability comes with important drawbacks. Constitutions are context dependent. They cement particular setups of empowerment and limitation. Preventing adjustments as the polity’s preferences of what or who ought to be empowered or limited changes can be detrimental to democracy.

The authors put forward three reasons to support this argument. First, in their view, the fear of institutional chaos is overstated. Not only are ordinary rules sticky—subject to the realities of political tug-of-wars and thus, practically, even if not legally, entrenched—but they are unlikely to change all at the same time. Modifying one constitutional provision, while keeping everything else constant, does not undo the constitution.

Second, constitutional entrenchment (in it of itself) has not proven to be particularly successful in deterring autocratization. Well entrenched thick constitutions, with substantive policy provisions, they explain, are likely to backfire. Inspired by the end of the Cold War in the 1990s, Tushnet and Bugaric argue in Chapters 5 and 6, the European Union created a series of rules that entrenched economic integration at the regional level while leaving social protection to national governments. When the eurozone-debt crisis hit in the 2010s, regional pro-austerity provisions—mandated at the EU level—made it nearly impossible for countries to spend countercyclically and boost their social programs. Constitutionally entrenched austerity had severe social and political consequences in Europe, not the least of which was the rise of parties and leaders with authoritarian tendencies.[4]

Well entrenched thin constitutions, the authors discuss, are not particularly authoritarian-proof either. Thin institutions hoping to survive the test of time, must rely on informal institutions. Unwritten, these, however, can be easily circumvented or ignored. In the United States, for example, Donald Trump (2017-2021, 2025-present) has used and abused informal institutions to undermine the checks on the executive and weaponize government bureaucracy against opponents.[5]

Lastly, the authors suggest, institutions have unintended consequences. Provisions meant to limit power, can actually expand it. In Brazil, prosecutors eased evidentiary and procedural constraints to fight high-level corruption. Zealous about the crimes he was prosecuting, judge Sergio Moro engaged in misconduct to indict and jail then ex-president and highly likely presidential candidate, Luiz Inácio Lula da Silva (2003-2011). His actions derailed the 2018 election.[6] Something similar happened in Guatemala. Where the UN backed anti-corruption commission (CICIG) created a powerful general attorney to prosecute corruption. Taken over in 2018, by Consuelo Porras, a member of the “Corrupt Pact”, however, it was used for nearly ten years as a power tool of oppression.

All of these are good arguments against constitutionalism. Institutions that enable better more representative democracies are, indeed, needed to curb the rise of potential autocrats. But what about resistance once an autocrat has attained power? Wouldn’t less entrenched institutions pose significant risks then? The authors, suggest they don’t. In fact, they argue, they could hinder revitalizers by obstructing their agenda.

Indeed, constitutions do not have silver bullets against autocratization. As they show in Chapter 9, there is no constitutional design particularly suited to fight democratic backsliding and some of the constitutional tools available to halt the erosion of democracy are only successful when used at the right time. Moderate institutional strategies can run the clock on autocrats, slow down and obstruct democratic backsliding, but they are not entirely failproof and ultimately require the opposition to win elections (which they can hardly do by defending the status quo the autocrat sought to disrupt).

The book’s argument is timely and well built. It takes up a question that Political Scientists (like me) grapple with and rarely consider in detail. And while I can see how well-entrenched constitutions could be detrimental to democracy; I wonder how flexible should be? Majorities are not always right. How should we think about very popular presidents like Nayib Bukele (2019-present) who are willing to undermine the civil and political rights of those who oppose him?

I also wonder how do rules of constitutional amendment and replacement interact with other institutions. These too are context dependent. They may not have been created to obstruct change but turned into insurmountable obstacles as partisan organizations evolved or polarization increase. As we think about democratic restoration in countries like Hungary, Poland and Guatemala, is there a way to avoid that trap?

I thoroughly enjoyed the book and highly recommend it to scholars interested in constitutional design, democratic backsliding and or questions of post-authoritarian politics. Combining questions about institutional design and strength, with broader concerns about equality and representation, Tushnet and Bugariç tackle the twin problem of executive aggrandizement: acknowledging and addressing the popular force behind the rise of populist would-be-autocrats, while also understanding the need to limit their ability to reduce the checks on the executive to fulfill their agenda.

Laura Gamboa is Associate Professor of Democracy and Global Affairs at the Keough School at the University of Notre Dame. You can reach her at: lgamboa1@nd.edu.

[1] Sheri Berman and Hans Kundnani, “The Cost of Convergence,” Journal of Democracy 32, no. 1 (2021): 22–36; Steven Levitsky and Daniel Ziblatt, Tyranny of the Minority: Why American Democracy Reached the Breaking Point (Crown, 2023).

[2] Kurt Weyland, Democracy’s Resilience to Populism’s Threat: Countering Global Alarmism (Cambridge University Press, 2024), https://doi.org/10.1017/9781009432504.

[3] Douglass Cecil North, Institutions, Institutional Change and Economic Performance, Political Economy of Institutions and Decisions (Cambridge University Press, 1990).

[4] Although the authors don’t mention it, well entrenched thick constitutions are also more likely to be replaced (rather than amended). Facing hard to change charters in Venezuela and Bolivia, Hugo Chávez (1999-2013) and Evo Morales (2006-2019) used their popularity to bypass existing law and call for constitutional assemblies. The new constitutions created hyperpresidential systems that facilitated the erosion of democracy in these countries.

[5] Steven Levitsky et al., “The Price of American Authoritarianism,” Foreign Affairs, December 11, 2025, https://www.foreignaffairs.com/united-states/american-authoritarianism-levitsky-way-ziblatt.

[6] Ezequiel A. Gonzalez-Ocantos et al., Prosecutors, Voters, and the Criminalization of Corruption in Latin America: The Case of Lava Jato, Cambridge Studies in Law and Society (Cambridge University Press, 2023), https://doi.org/10.1017/9781009329835.

Constitutionalism and Its Discontents: A Comparativist’s Take

2026-09-02T09:30:00.000-04:00

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

Sabrina Ragone

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

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

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

In this brief comment, I approach the book through the lens of my expertise in comparative constitutional law, engaging with selected arguments from the three parts. Comparison can shed particular light on the tension between democratic empowerment and constitutional constraint by revealing how it takes different forms across models of government and political systems, as well as within different arrangements of regional and supranational integration. It can thus help unsettle some of the classical assumptions and categories through which constitutional theory has traditionally framed and tackled that tension.

The first part of the volume brings together different strands of dissatisfaction with constitutionalism, from Loughlin’s Against Constitutionalism to Moyn and Doerfler’s critique to the idea of “reclaiming” the US Constitution, up to Gargarella’s conception of law as a “conversation among equals”. Interestingly, these positions emerge from different constitutional traditions, and also reflect distinct historical, procedural, and substantive foundations. In fact, Loughlin writes from a British tradition historically shaped by parliamentary sovereignty and by the absence of a kind of rigid, entrenched constitution that is core to the American debate. Moyn and Doerfler have to grapple with an extraordinarily old and de facto exceptionally rigid constitution. Gargarella’s perspective, in turn, traces contemporary problems back to historically embedded dynamics of power and exclusion in Latin America. Their convergence in expressing dissatisfaction with constitutionalism is even more significant, while it also raises the question of whether they are ultimately discontented with the same thing.

Chapter 2 engages with the idea to treat constitutions as ordinary statutes: binding law while in force, but alterable by ordinary majorities (p. 17). For a comparativist, this recalls the classical distinction between rigid and flexible constitutions, although the proposal seems to go further, questioning the special procedural status of the rules about ruling themselves. Still, also “thin” constitutions offer several downsides (p. 24 ff.), as they may be directly exploited by proto-autocrats; encourage “juristocracy”, as courts acquire an increasingly prominent role in providing content to the norms; and they may contribute to the construction of what Kim Lane Scheppele calls a “Frankenstate”, in which individually legitimate constitutional mechanisms are combined in ways that produce an increasingly illiberal whole.

Yet I am less certain that comparative experience points clearly towards treating constitutions like ordinary statutes. The picture becomes particularly complex if we consider constitutional amendments and their judicial review, an area to which I have devoted a substantial part of my research. Comparative constitutional systems differ not only in their level of rigidity, but also in the institutions, procedures, and substantive limitations of constitutional change. Judicial review of constitutional amendments exposes the paradox particularly clearly. On the one hand, allowing a court to invalidate a change adopted by a constitutionally qualified majority might appear as an extreme form of constitutional constraint and perhaps the epitome of the juristocracy the authors warn against. On the other hand, recent examples of democratic erosion show that constitutional amendments can be used by governing majorities to alter the rules of political competition while formally complying with constitutional procedures.

Review of constitutional amendments can be understood, at the same time, as the ultimate form of judicial constraint on democratic self-government and as a safeguard of the conditions that make democratic self-government possible. To be clear: such review does not necessarily solve the problem. My own examination has shown the extraordinary law-making power it can place in the hands of courts, particularly when they are called upon to identify substantive limits to constitutional change. And the “Frankenstate” insight is relevant as well in this respect: measures that are individually compatible with democratic constitutionalism may, when combined, result in democratic erosion. Comparison may therefore support the authors’ skepticism towards entrenchment without necessarily leading to the conclusion that constitutions should be equated with ordinary statutes.

Chapter 3 shows that structural constraints do not necessarily reduce public power and may, under certain conditions, end up enhancing it. Particularly interesting is the authors’ own consideration that the Supreme Court’s intuitions may make sense under contemporary circumstances even if they do not hold as a matter of general theory. Such recognition of the importance of context shall be extended comparatively: institutional arrangements that constrain or empower in one specific, time-determined constitutional setting may produce different effects in another. Comparison thus adds a spatial dimension to the temporal and political contextualization present in the chapter, proving a fortiori that constitutional design cannot be assessed independently of the institutional environment. The following Chapter further reinforces the importance of context through the abovementioned idea of constitutions as “conversations among equals” (p. 47 ff.). However, who the participants are (and whether they can actually be regarded as equals) very much depends on institutional and social settings. Forms of government, territorial decentralization, allocation of constitutional authority determine both the participants and their relative power. Comparison thus invites scholars, and citizens, to distinguish between formal equality in constitutional conversations and the actual capacity to participate on equal terms and eventually shape their outcomes.

Part Two raises a different comparative question, concerning the very use of constitutionalism beyond the State. The EU economic constitution certainly performs constitutional functions, but it does so in a multilayered system that continues to depend substantially on its Member States. The empowerment/constraint paradox acquires a different meaning when constitutional authority is distributed across interconnected legal orders rather than located within a single polity. Also, the uniformizing effect of supranational norms does not necessarily lead to significant convergence. Domestic constitutional effects often remain differentiated because they are mediated by national institutions, political cultures, and administrative structures. Ultimately, the recurrent crises the EU has been subject to, do not merely test the European constitutional framework: they transform it, with effects that vary across domestic constitutional systems, as I have addressed with respect to the Eurozone and the refugee crises.

The importance of context is clear also in Part Three, as the focus shifts to democratic decline and the capacity of constitutional arrangements to counter it. Chapter 8 is revealing in this respect. The institutional strategies available to opponents of proto-autocrats (like litigation before courts, action by independent prosecutors, mechanisms such as impeachment, alongside mobilization by civil society) rely on access to the very institutions that proto-autocrats progressively seek to weaken or capture. Their effectiveness is therefore inherently context-dependent: it varies based on the institutional resources still available to the opposition and the broader political and constitutional configuration in which they operate.

This also qualifies, rather than contradicts, the skepticism towards constitutional design developed subsequently. In fact, constitutional design rarely matters in isolation. Similar institutional arrangements can produce very different effects depending on their interaction with party systems, political practices, and other constitutional institutions. The search for universally resilient constitutional designs is a false promise, as they are inherently context-dependent.

Chapter 10 offers the authors’ prescription (p. 154): strengthening both party leadership and the “party-in-the-electorate,” while recognizing that each remedy carries its own risks. The proposed reforms thus reproduce, at the level of party organization, the broader paradox running through the book: addressing one democratic discontent may generate another. Personally, I would broaden the prescription by placing even greater emphasis on civic education and the conditions for access to reliable political information, which seem equally important in strengthening meaningful democratic participation, especially in times of polarization, increasing relevance of social media, post-truth and “politainment”.

Three broader reflections emerge from my reading of the book. First, comparison complicates classical oppositions, as dichotomies like law and politics, courts and legislatures, empowerment and constraints are configured differently across constitutional systems. Second, comparison makes context integral to constitutional assessment: institutions and solutions cannot be evaluated independently of the legal, political, and cultural settings in which they operate. Ultimately, seen comparatively, the tension addressed in the volume becomes even more complex. And this is perhaps one of the main merits of Constitutionalism and Its Discontents: its underlying paradox invites us to keep questioning what we expect constitutionalism to do, and what it can realistically deliver.

Sabrina Ragone is Professor of Comparative Public Law at the University of Bologna. You can reach her at sabrina.ragone2@unibo.it.

Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and its Discontents

2026-09-02T09:00:00.000-04:00

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

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

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

Professional AI’s Dual Trust Problem

2026-09-01T09:30:00.000-04:00

For the Balkinization Symposium on the Global Political Economy of Artificial Intelligence.

Claudia E. Haupt

Professional AI’s Dual Trust Problem

Each day, more than forty million people ask ChatGPT health questions. When OpenAI and Anthropic launched dedicated health AI tools that let users upload their medical records and receive personalized guidance, the obvious question was: “Should you trust them?” The question has only grown more pressing: since early 2026, five major technology companies (OpenAI, Anthropic, Microsoft, Amazon, and Perplexity) have released or expanded dedicated consumer-facing AI health applications, each allowing users to connect medical records, lab results, and wearable data to receive personalized guidance.

That question, it turns out, has more than one layer. Instinctively, we might assume the concern is about output accuracy: will the AI give bad professional advice? But a second, perhaps less obvious, problem arises that reaches beyond any individual bad outcome. Untrustworthy AI undermines the entire system of trust that makes human professional advice work in the first place. It’s a dual trust problem.

I examine professional AI’s dual trust problem in a forthcoming essay, Misplaced Trust in Artificial Professional Advice, which makes the argument in two steps.

The First Problem: AI’s Professional Advice Isn’t Trustworthy

The professional relationship with a doctor, lawyer, financial advisor, accountant, pharmacist, therapist, or another advice-giving professional is a specific social interaction. The professional possesses knowledge the client lacks; this results in a knowledge asymmetry that creates vulnerability. The law responds with a set of safeguards: licensing requirements, fiduciary duties, malpractice liability, informed consent. These mechanisms protect the conditions under which a client or patient can reasonably place confidence in a professional’s expertise.

Public-facing AI eliminates the human professional. What remains looks like professional advice: conversational, personalized, authoritative in tone. But the legal and ethical framework that ensures professional advice is trustworthy is absent.

The accuracy problem is real and documented: as of 2024, no commercially available AI app met professional standards for skin cancer detection. Earlier studies on general health queries found frequent errors, and more recent work reinforced those findings. A study published in Nature Medicine found that participants using AI chatbots to navigate common medical scenarios performed no better than a control group relying on ordinary home resources such as internet searches—and users describing the same symptoms sometimes received conflicting advice depending on how they phrased their questions. A separate Mount Sinai study found that ChatGPT Health under-triaged more than half of medical emergencies in structured clinical testing, potentially directing patients with serious conditions toward routine follow-up rather than urgent care.

But accuracy is not even the core issue. Trust is an attitude; trustworthiness is a property. And as Ignacio Cofone argues in a companion piece to this symposium, as well as in more detail in a forthcoming article,[1] trustworthiness is a property of institutions, not of AI systems. The professional relationship, not the chatbot, carries that institutional trustworthiness.

The Second Problem: Untrustworthy AI Undermines Trust in Human Professionals

When a patient consults a public-facing AI and then sees a physician whose advice diverges, the patient faces a question they are not equipped to answer: who is right? And behind that question lurks a more unsettling one: where does expertise actually live?

The proliferation of AI that mimics professional judgment creates epistemic uncertainty about institutional expertise itself. Beyond harming individual users, the AI systematically undermines confidence in the professionals it displaces or contradicts. The problem is structural, rooted in the same inequities of access that drive people to seek AI as a substitute for healthcare in the first place.

Many people turn to AI health tools precisely because they lack access to affordable human care. A March 2026 KFF tracking poll found that about one in five adults who use AI for health advice cite inability to afford a provider as a major reason, a figure that rises to nearly three in ten among users ages 18 to 29. Uninsured adults are more than twice as likely as insured adults to rely on AI for mental health guidance. And the pattern tracks race: Black and Hispanic adults turn to AI for mental health advice at substantially higher rates than White adults. Viewed this way, AI health tools are an attempted patch for a broken system.

The trust being displaced was already fragile, and unevenly distributed across race, income, and geography. Worse, the AI health tools with the most personalized features—those enabling direct integration with medical records—are increasingly behind paywalls, potentially placing them out of reach for those who are already struggling to afford care. What consumer-facing health AI offers is not a substitute for the human professional relationship.

As the law and political economy literature would recognize, the roots of this problem predate AI. First Amendment doctrine, as I have argued elsewhere, has long assumed the availability of professional advice without reckoning with its unequal distribution.[2] This assumption places a heavier burden on those who can least afford expert counsel and who are most dependent on publicly available information (however unreliable) as a substitute. Consumer-facing health AI does not solve this problem; it exploits it, offering a widely available facsimile of expert advice. And the data suggests it’s relied on by users for whom the absence of access to professional advice was already most consequential.

Trust in Institutions, Not AI

The stakes extend beyond individual harm to institutional erosion. As Woodrow Hartzog and Jessica Silbey argue, AI has the capacity to destroy the civic and professional institutions on which public life depends.[3] It may do so by steadily undermining the trust that sustains them. The professions are no exception. Professional expertise generates trust because it is grounded in training, accountable to standards, and answerable to the people it serves. Deploying AI that mimics expertise without embodying any of those properties creates bad individual outcomes and casts doubt on where expertise lives.

The question, then, is not simply whether we should trust AI. It is whether deploying untrustworthy AI erodes the very institutions whose trustworthiness we depend on, and what regulatory frameworks built around human professional relationships can do about it.

Claudia E. Haupt is Professor of Law and Political Science, Northeastern University. You can reach her by e-mail at c.haupt@northeastern.edu.

[1] Ignacio Cofone, Institutional Accountability and Legitimate Inference in Algorithmic Adjudication: Beyond Trustworthy AI, Cambridge Forum on AI Law and Governance (forthcoming 2026), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6516459

[2] Claudia E. Haupt, Assuming Access to Professional Advice, 49 J. Law, Med. & Ethics 531 (2021).

[3] Woodrow Hartzog & Jessica Silbey, How AI Destroys Institutions, UC L. REV. (forthcoming 2026) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5870623.

Defining Predistribution

2026-08-31T09:30:00.000-04:00

For the Balkinization Symposium on the Global Political Economy of Artificial Intelligence.

Ava Liu

There is a problem with the concept of “predistribution”, which is that the idea is ill-defined. At the broadest level, predistribution is defined as what is not tax-and-transfer redistribution. Predistribution is associated with what "can shape the distribution of income and opportunity in a society that are distinct from simply taxing and providing benefits" or that “instead of equalizing unfair market outcomes through tax-and-spend or tax-and-transfer (redistribution), we instead engineer markets to create fairer outcomes from the beginning”.

These definitions are helpful, but they are residual. Predistribution is located as what remains outside of tax-and-transfer redistribution. We know that predistribution advocates are concerned about making markets more fair and equal. We know it is about structuring the market—"the means by which primary market distributions of income and wealth are determined”—or that it is what shapes primary inequality rather than after-tax income.

We know, too, that predistribution is generally understood as operating before redistribution; if redistribution happens with outcomes at a time (T2), then there was a time (T1) before this point. But as legal scholar Alex Raskolnikov recently summarized of the field, “the line between redistribution and predistribution, it turns out, is not well-defined and possibly nonexistent.” Philosopher Martin O’Neill has argued that there is no line between predistribution and redistribution in the substance of their policies.

This is a problem if we care about predistribution as a domain of the economy we want to understand or a set of policies related to inequality we aim to organize around. The term “predistribution” has been around in the political vocabulary for fifteen years yet the idea remains somewhat murky, and advocates self-efface with how blurred it is as a concept. This is limiting if predistribution is to gain traction as a field rather than remain a slogan for policies we intuitively care about but cannot precisely identify.

Fleshing out a positive definition would go a long way. I offer one here.

I present a positive definition of predistribution based on power over production. This I locate through a critique of tax-and-transfer redistribution and what it cannot do, which points to what predistribution does. I also start from the premise that there is a T2 of realized outcomes which is the point we are redistributing pre-tax income from, and before that therefore some T1 in which those outcomes were structured and produced.

In my own work on artificial intelligence and technology governance, I first encountered this problem through the labor automation debate, which was originally dominated by calls for universal basic income (UBI). UBI has been heralded as the answer to technology-driven displacement: if workers lose their jobs to automation, the state can tax and transfer the proceeds to provide workers an income floor. In a welfare capitalist market economy, UBI is a classic tax-and-transfer policy that aims to redress income inequality.

What does UBI not allow us to do, though? It does not allow us to govern over technology. It distributes post-facto, after initial primary market distributions of income and wealth are determined. This is not a contingent failure of UBI as policy design. Rather, it’s a structural feature of tax-and-transfer redistribution as a category and welfare transfer payments as a class. Tax-and-transfer operates at T2 after outcomes have been produced in the market. An income tax redistributes purchasing power in the realm of consumption. UBI cannot address the problem of what to do about labor automation because it is not about what to do about technology, a problem of production. In this sense, UBI’s position in the labor automation discourse is a misattribution of a policy about income inequality to a different problem of how to govern over technology. Its predominance in the AI discourse is a symptom of the lack of collective imagination around questions of economic production: what gets made, how, and under what conditions. Nonetheless, examining that misattribution allows us to see more clearly how redistribution is limited and what “predistribution” is.

We know that power to set the agenda over economic outcomes is important. This could achieve fairer outcomes than just post-facto redistribution as it concerns the realm of production. In the labor automation debate, I’ve identified this as a technology innovation and governance question: what we should do about AI is a set of decisions that could be broadened beyond a small subset of management and shareholders who are legally delegated to hold that power. Distributing agenda-setting power and distributing voice democratize the process. So what are the levers that distribute that power?

The argument defining the contents of predistribution runs as follows. I then identify four categories of predistribution.

Redistribution operates at T2; tax-and-transfer operates at a point at which the market has results to redistribute from. Its defining features are that it takes market outcomes as given and adjusts them. It is post-facto and downstream.

We know that prior to those outcomes, there exists upstream governance. This carries agenda-setting power and the capacity to shape the conditions under which outcomes are produced. This is precisely what redistribution cannot do. These outcomes were structured at T1, which was the realm of production.

Predistribution and redistribution are related and defined against one another, with redistribution happening at T2 and upstream governance occurring before this at T1. Redistribution is structurally incapable of setting the agenda or structuring outcomes. What redistribution cannot do, let us name as what predistribution does. Therefore, predistribution is the distribution of power over outcomes.

Predistributive institutions distribute power over outcomes. Predistribution advocates concerned with equality aim at moving the power up to exercise control over mechanisms that can shape outcomes before the redistribution of market outcomes.

Much of the work on predistribution has reflected this logic. Public investment and government expenditure, such as through K-12 education and infrastructure, are cited as examples of predistribution. The state can directly produce and provision goods and services. Power has been exercised and the outcome set. The direct provision of goods and services, depending on execution and the extent to which it removes market dependence, can have a decommodifying effect: decommodification occurs when access to a good is no longer conditioned on market participation. These outcomes are directly provided without one needing to enter market exchange to receive them. The distance of the outcome as mediated through the market has collapsed.

Another set of policies grouped under predistribution involve redistributing bargaining power. One can change the rules of a market, or what Steven Vogel calls marketcraft. Antitrust rules are the paradigmatic example. Changing the legal rules that underlie a market shapes the engine of the market. Now a market is structured differently with different rules and incentives, therefore producing different outcomes. Even a redistributive program can have a predistributive effect that changes bargaining power and the incentive structure of the market: consider UBI's possible effect on raising workers’ exit options through increasing their reservation wages, thereby raising the bargaining power workers bring to market exchange.

Another type of predistribution is distributing ownership and entitlements to assets. Land reform is the paradigm case: in U.S. occupied Japan and revolutionary Communist China, land was compulsorily transferred from landlords to tenant farmers and peasant populations. In the domestic U.S. context, a similar mechanism appears as eminent domain, the state's authority to compulsorily acquire private property. Public ownership is another instance of this power. An interesting case is the social dividend: a return distributed to citizens as co-owners of productive assets, as in Alaska's Permanent Fund or a state sovereign wealth fund. This is a “predistributive” form of UBI, distinct from a market-liberal basic income funded through tax-and-transfer; the entitlement derives from ownership, not from downstream redistribution of market outcomes. In the United States or other Western industrial democracies, where we are steeped in the tradition of welfare capitalism, our understanding of redistribution is tax-and-transfer, rather than directly changing entitlements as in radical forms of land redistribution. However, this general class is also quite simply redistribution. This discussion connects to Rawls’ idea of property-owning democracy (POD). I elaborate on this form of predistribution—or redistribution of ownership—and its relationship to Rawlsian POD in my forthcoming work on “predistributive UBI”. Determining who owns productive assets establishes who is entitled to property and returns, and allocates residual control, at least nominally, although this is distinct from the next class of redistributing control and governance rights.

Another type of predistribution—more fundamental to the element of control and more undertheorized as a field—is the distribution of governance power over outcomes. Change who governs and in whose interests, and the outcomes are structured differently. This distributes the power to determine the agenda before redistribution of market outcomes. These means include collective bargaining mechanisms, labor unionization, and industrial policy, which have all been identified with predistribution. These mechanisms change who decides and thus what is decided. Governance power can be exercised through directly distributing voice, such as through union representation in the firm. Notably, ownership and governance are often bundled: worker cooperatives combine both, as does land reform to smallholders, but they are analytically separable forms.

Scholars have observed there are limits to how much one can reduce inequality with the help of tax mechanisms. I am highlighting those limits as structural rather than practical features. What is “predistribution” is actually the primary determinant of economic life, particularly the realm of production, whereas post-facto tax-and-transfer in the market is actually the residual ambit of welfare capitalism (the historical intellectual moment we are steeped in), and its understanding of redistribution. Tax-and-transfer redistribution does not allow for governance over market outcomes, and yet it is commonly identified as the imaginary limit of what we think of as policy solutions, whether it be climate change (through carbon tax) or labor automation (through early calls for UBI). Tax-and-transfer redistribution cannot change who the decision-maker is. That is predistribution, which occurs at T1 and directly sets the agenda. In forthcoming work on technology governance and artificial intelligence, I elaborate on these themes and present a framework for predistribution and governance over the economy, focusing specifically on the ownership and governance categories of predistribution.

Near the end of his life, Rawls wrote that “welfare-state capitalism permits very large inequalities in the ownership of real property (productive assets and natural resources) so that the control of the economy and much of political life rests in a few hands.” Rawls, the defining theorist of liberalism, writing about welfare-state capitalism which relies on redistributive tax-and-transfer, points out there is no control in it. This points to where control over the means of production lies: in predistribution.

Ava Liu is Academic Fellow in Law, Technology and Labor, Harvard Law School. You can reach her by e-mail at avliu@law.harvard.edu.

The Tech Energy Transition

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

For the Balkinization Symposium on the Global Political Economy of Artificial Intelligence.

Amy L. Stein

It has been three and a half years since ChatGPT exploded on the scene, and many have yet to wrap their heads around the environmental, economic, and ethical implications of AI’s lifeblood – data centers. Without these sprawling facilities that house thousands of servers and mountains of computational equipment, AI is ineffectual. This makes the physical limitations of AI’s growth much more pronounced that initially anticipated. The true bottleneck for AI development is the energy required to power these data centers, rendering the electric grid ground zero for data center development disputes. These disputes center around the clash of two titans: Big Tech and Big Utilities. While the largest privately-owned electric public utilities (Big Utilities) have dictated the shape of our grid for the last century, Big Tech’s emergence in the grid space has disrupted assumptions, regulatory approaches, and ratepayer economics in ways previously unimaginable. This renders power dynamics in the electric grid space a ripe testing ground for political economy scholars focused on how power, wealth, and institutional rules determine winners and losers.

My most recent work, Shifting Structural Power: The Tech Energy Transition, 101 Indiana Law Journal 583 (2026), draws upon theories of structural power in the international political economy (IPE) literature to tease out the relationships between these Big Utilities and Big Tech.[1] In the IPE literature, structural power is generally understood as the power to choose and to shape the structures of the global political economy within which other stakeholders must operate. Professor Susan Strange was concerned that financial wealth dictates politics, and that corporate influence had surpassed the control of governments. As she elucidated in 1987, power was not only about tangible resources like territory and military, but also about the power to decide how things would be done, to shape frameworks within which actors relate to each other, and to set the agenda in a way that defines the choices available to others.[2] She explained structural power as being found in four separate but interrelated structures: the ability to control (1) other people’s security; (2) the system of production of goods and services; (3) the structure of finance and credit through which it is possible to acquire purchasing power without needing to work or trade it; and (4) the acquisition, communication, and storage of knowledge and information. These four pillars are useful in identifying sources of power, organizing the mechanisms through which power can operate in policy processes, and exploring the consequences of such shifts for regulatory and political systems and outcomes. And they map nicely onto Big Tech’s activities in the grid space.

Big Tech’s control over these four pillars of such power—information, finance, production, and security—are providing it with structural power that challenges even the durable monopoly power of electric utilities. This structural power stems not just from market power, but from a private firm’s investment power to shape the regulatory framework within which it functions. Unlike the monopoly power long enjoyed by electric utilities, Big Tech’s structural power is tied to their ability to shape the rules that affect them due to the government’s dependence on their economic investments, the trillions of dollars they anticipate spending on AI-related investments, their tight control over information related to data center development, and their impacts on reliability of the grid. After decades of sitting on the sidelines in energy spheres, Big Tech is poised to exert significant structural power on the stakeholders in the grid space. This in no way suggests that an analysis of structural power in the grid space involves a simple bilateral relationship between Big Tech and Big Utilities.

The electric grid space begs for a deeper analysis of competing levels of structural power of Big Tech and Big Utilities vis-à-vis many other players. Local governments (primarily through zoning and land use commissions), state governments (primarily through public utility commissions), regional planners (primarily through regional grid operators), and the federal government (primarily through the Federal Energy Regulatory Commission) all interact with each other and these entities to maintain and develop the U.S. grid. Many other actors in the grid space can exert degrees of structural power, including various other government actors; quasi-governmental entities; and various business interests surrounding the grid, including private equity players and critical supply chain providers. But this work attempts to first disentangle the respective power of Big Tech and Big Utilities and hopes to spearhead future analysis of the power dynamics surrounding these other actors in the grid space.

This short contribution here demonstrates why data centers, and particularly the largest called hyperscale facilities that are measured in gigawatts and acres, provide a master class in political economy. Although there are many dimensions, this highlights the risks of three dimensions: (1) asymmetries between costs and benefits, (2) regulatory capture, and (3) private control of public resources.

First, data center disputes demonstrate the asymmetry between where value is generated and where its negative externalities are felt. There is no question that Big Tech, with its structural power, is anticipating concentrated global profits while the physical inputs of data center development (land, water, and energy resources) are localized, forcing communities to bear the burdens. Many of these are being proposed and sited in rural communities, like Google’s $15 billion “Project Spade,” a 900-acre development proposed next to Amazon’s $35 billion “Project Green” 1000-acre development, in Montgomery, Missouri, a county of less than 12,000 people. There is no question that AI is reshaping our physical infrastructure. Although many are worried about a data center’s water usage, the real impacts flow from the choice of energy used to generate electricity. The choice of energy impacts how much water is used, where the facility is sited, and the carbon and pollutant loading of the atmosphere. Fossil fuels like natural gas have a much different local impact profile than renewables like wind and solar. As just one example, the Department of Energy determined that 90% of a data center’s water use is attributed to offsite energy generation.[3] Breaking records for the largest single investment in the state’s history, however, Project Spade is an economic engine that renders it difficult for states to resist. Communities concerned about water, energy, pollutants, noise, and a lack of transparency have little power in these scenarios. “Time to power” dominates data center considerations, pushing state and local governments for quick approvals lest Big Tech uses its leverage to seek a home elsewhere.

Second, Big Tech’s structural power is allowing them to influence government policy to serve their own growth. Big Tech has won the narrative, convincing the Trump Administration and other followers that AI dominance is a national security imperative and a matter of geopolitical survival. We are waiting on FERC to issue an order in June that may upend the entire federalism bargain that has existed in this space for the last century to fast-track interconnection of data centers to the public electric grid.[4] But Big Tech’s regulatory capture extends to state governments as well, where they have been able to negotiate extremely favorable tax breaks. This leaves local governments with little political power to resist such data center development. One need only look at NextEra Energy’s pending $67 billion agreement to acquire Dominion Power to see elements of capture at play.[5] Utilities are notoriously territorial, enjoying state-sanctioned monopolies over the customers within their serve areas. These are two of the largest utilities in the country, with Dominion’s territory including the largest concentration of data centers in the world. This agreement needs multiple layers of federal and state approvals to proceed, and reports are already circulating about the aggressive lobbying of the parties, possible rate increases for ratepayers in these areas, and concerns about the amount of political control should this merger be approved.[6]

Third, the legal structure of utility ratemaking allows Big Tech and Big Utilities to create a double dose of structural power that can leave ratepayers like you and me subsidizing their activities. As I have articulated elsewhere to illustrate how Professor Strange’s pillars of production and finance interact, there are at least three likely scenarios that reflect the power dynamics of Big Tech and Big Utilities. They are not mutually exclusive, and it is likely we will see a mixture of these arrangements depending on the political appetite and financial analyses of a particular area. But in simple terms, Big Tech will either be (1) Big Utility’s best customers; (2) Big Utility’s biggest competitors; or (3) Big Utility’s biggest disappointment.

In the customer scenario, where data centers brave the long lines to interconnect to the public grid, utilities profit from both the enormous capital costs to serve these “large load” customers as well as from the large amount of electricity usage. One need only look to Meta’s plans to build the Hyperion hyperscale center in rural Louisiana as an example. The Louisiana Public Service Commission approved a settlement agreement between Meta’s subsidiary and Big Utility Entergy that approved Meta directly financing seven new natural-gas power plants totaling more than 5.2 gigawatts, along with roughly 240 miles of 500-kV transmission lines and battery storage across multiple locations.[7] A five-gigawatt campus is enormous, requiring more electricity than that of many cities. These facilities will be built by the Big Utility, financed by Big Tech, but included as “system resources” that are connected to the grid in a way that could allow Entergy to include them in their rate base used to calculate rates for residential customers like you and me. This is just as Professor Strange suggested, with private firms shaping the very infrastructure within which others must operate.

In the competitor scenario, where data centers enter into agreements with electricity generators directly, this can sometimes displace generating resources from otherwise serving the public grid. In a world with finite resources, this can reduce the amount of generation available to the public grid, increasing prices for all of us as our public utilities scramble to procure sufficient generation. This can also happen in co-located arrangements, like when Amazon Web Services set up shop right next to the Susquehanna Nuclear Power plant in Pennsylvania, contracting a portion of the previous public supply.

In the last scenario, Big Tech will forgo the public grid entirely. This scenario goes by many names today, but proposals for a microgrid, behind-the-meter generation, or BYOP (Bring Your Own Power) may all be referring to data centers that self-supply. These data centers will not be connected to the public grid, meaning Big Utilities will be disappointed to lose revenue from capital investments and from electricity sales. As of today, Big Tech suggests this is not the preferred option, instead, wanting the reliability and redundancy benefits of an interconnected grid. But as pressures mount, some like the Project Jupiter hyperscale facility approved in New Mexico, is being proposed as a microgrid that will be served by fuel cells that run primarily on natural gas. At the very least, these scenarios may provide a lifeline for data centers while they wait to interconnect to the public grid. But it is possible that these data centers remain disconnected, creating a shadow grid that runs outside of the public one. Such a shadow grid would be unregulated to the same extent as other resources and insulated from the public interest obligations that have governed electricity infrastructure for the past century. The extent to which Big Tech chooses how to power its data center campuses will shape the grid and its relationships with Big Utilities around the country. Not to be lost in this taxonomy is the last line which bears repeating – it is Big Tech who holds the structural power and the leverage to make these determinations and obtain necessary approvals.

Together, Big Tech’s influence to shape the resources, providers, and locations of grid infrastructure, as well as the development of new regulatory tools, arrangements, and innovative rate structures, defines the next phase in electricity history that I have coined the “Tech Energy Transition.” The positive and negative impacts of this next phase will not be felt equally across the nation. The United States’ grid is a complex, century-old machine that is in desperate need of investment, reform, and transformation. Lawmakers and regulators have cobbled together rules and markets that try to balance economic efficiencies with reliability and the public interest in ways that allow most Americans to remain functionally disengaged from the intricacies of the electric grid.

If we are not careful, we may cede control over what types of energy sources are going to power our grid, where they will be located, and which areas of the country bear the risks and rewards of such investments. Worse yet, we could lose control over public resources to power private profit ambitions.

But data center development, public engagement, and its associated constraints can trigger innovations that might not have otherwise been tenable. The grid may see a much-needed infusion of cash and regulatory creativity. By harnessing data center demand, regulators can guide the grid’s transformation in ways that are compatible with public policy goals like decarbonization and ratepayer affordability in ways to guide stakeholders during this Tech Energy Transition.

If you want to learn more, please keep an eye out for my forthcoming book with MIT Press, The Data Center Next Door (Spring 2027). It is an essential portal for academics and non-academics alike to better understand the complicated tradeoffs associated with the energy, environmental, technological, and policy implications of data center development.

Amy L. Stein is Cone Wagner Professor of Law, University of Florida Research Foundation Professor. You can reach her by e-mail at stein@law.ufl.edu.

[1] Amy L. Stein, Shifting Structural Power: The Tech Energy Transition, 101 Ind. L. J. 583 (2026).

[2] Susan Strange, The Persistent Myth of Lost Hegemony, 41 Int’l Org. 551, 565 (1987).

[3] Berkeley National Lab, 2024 United States Data Center Energy Usage Report (2024), https://eta-publications.lbl.gov/sites/default/files/2024-12/lbnl-2024-united-states-data-center-energy-usage-report_1.pdf.

[4] FERC, FERC to Act on Large Load Interconnection Docket by June 2026, (April 16, 2026), https://www.ferc.gov/news-events/news/ferc-act-large-load-interconnection-docket-june-2026.

[5] NextEra Energy, NextEra Energy and Dominion Energy to Combine, Creating the World's Largest Regulated Electric Utility Business and North America's Premier Energy Infrastructure Platform Benefiting Customers, (May 18, 2026), https://newsroom.nexteraenergy.com/2026-05-18-NextEra-Energy-and-Dominion-Energy-to-Combine,-Creating-the-Worlds-Largest-Regulated-Electric-Utility-Business-and-North-Americas-Premier-Energy-Infrastructure-Platform-Benefiting-Customers?l=12.

[6] Shelby Green, et al., NextEra’s acquisition of Dominion would bring history of political control, rate increases to Virginia, Carolinas (May 20, 2026), https://energyandpolicy.org/nextera-dominion-merger/.

[7] Entergy, Entergy Louisiana announces a new agreement with Meta that will deliver an additional $2B in customer savings, (Mar. 27, 2026),

https://www.entergy.com/news/entergy-louisiana-announces-a-new-agreement-with-meta-that-will-deliver-an-additional-2b-in-customer-savings.

Public Institutions Can’t Outsource Their Reasoning

2026-08-29T13:00:00.000-04:00

For the Balkinization Symposium on the Global Political Economy of Artificial Intelligence.

Ignacio Cofone

[This essay distills part of the argument in Ignacio Cofone, Institutional Accountability and Legitimate Inference in Algorithmic Adjudication: Beyond Trustworthy AI, forthcoming in Cambridge Forum on AI Law and Governance (2026).]

AI does not relieve courts and administrative agencies of the duty to defend the reasoning behind their decisions but, on occasion, it does make that duty harder to satisfy.

For most of the 2010s, the Dutch tax authority used a self-learning algorithm to flag potential fraud in claims for childcare benefits, a means-tested subsidy that helps parents cover daycare costs. The system assigned higher risk scores to families with certain characteristics, including dual nationality. When civil servants reviewed flagged claims, they were given no information about why the system had assigned the score. More than 26,000 families were wrongly accused, many of them ordered to repay tens of thousands of euros in full, often with penalties and no installments. Some lost their homes, their jobs, or custody of their children. In January 2021, the entire Dutch cabinet resigned over the scandal.

The Dutch Data Protection Authority called the practice unlawful and discriminatory when it fined the government under the GDPR. A parliamentary inquiry found a violation of the rule of law. The Dutch high administrative court had reviewed individual cases for years without catching any of this. All these failures came back to the same institutional defect. A self-learning model was producing decisions affecting thousands of families, and the institution running it could not, on demand, reconstruct any of those decisions in terms the law could evaluate. The reasoning path leading to action against a family was opaque to everyone in a position to challenge it: the family, the civil servants reviewing the flag, and any court asked to review what the institution had done.

In Toeslagenaffaire, everything that is supposed to make a system like this accountable was in place. There was an approved algorithm and a procurement process behind it. Civil servants reviewed every flagged case. Procedures, escalation paths, and appeal rights existed on paper. None of those gave the institution the ability to answer for the outcome. The AI does not take that role on. Trustworthiness in adjudication is the institution’s work.

Courts and agencies derive their authority from the procedures they follow, such as rules about what evidence may be considered, requirements to give reasons, opportunities to contest, and standards of review. None of these properties belong to a model. The institution still has to justify that output the way law requires, defend it under cross-examination, and respond on appeal. When AI participates in a decision, the institution needs to ask whether it can keep doing those things well. When it cannot, accuracy alone will not save the decision.

The standard policy response treats this as a technical problem with a technical fix: explainable AI, meaning systems designed to give an account of how they reach their outputs. The European AI Act requires explainability, and multiple US bills propose disclosure of model logic. The premise is that if a system can describe what it does, accountability follows. But it does not follow necessarily. Such a description tells a court or an interested party how the system reaches its outputs, but not whether a decision that incorporates those outputs rests on grounds the law permits. That is a question courts and agencies have to answer.

Call the capacity to answer it traceability. Traceability is the ability to reconstruct the reasoning path from evidence to decision in terms that can be evaluated against legal standards. Explainability tells a reviewer which features the model weighted. Traceability requires that those features be legally permissible considerations, that the weight assigned to them be defensible, and that the affected party have had a real opportunity to challenge them. Many explainability tools produce counterfactual statements that show what feature mattered most by varying it (e.g., “if the defendant had lived in a different neighborhood, the score would have been lower”). That statement describes the model output but does not justify the decision; it does not, for example, tell stakeholders whether neighborhood is a permissible ground for sentencing. The model alone cannot answer the legal question. The institution has to.

Three things follow. First, a model’s lack of transparency does not relieve an institution of its traceability duty. Opacity makes traceability harder to satisfy, but the duty runs to the reasoning path the institution constructs around the model and not to the model’s internals: what the output represented, what weight the decision-maker gave it, how it was integrated with other evidence and applicable law, and how the affected party could contest each of those steps.

Second, traceability is what existing doctrine already demands once AI is involved. Due process requires that an affected party be able to identify and challenge the basis of a decision against them. Arbitrary-and-capricious review under administrative law requires that an agency consider the relevant factors and explain how they connect to the choice it made. Equality doctrines require that decisions not rest on impermissible grounds. None of these doctrines is satisfied by an explanation of how a model works. All of them require that the institution show why the resulting decision rests on grounds the law permits.

Third, this reframes what deploying an AI system commits an institution to, whether the system is built in-house or procured from a vendor. The duty to justify a decision is the institution’s regardless of what tools it uses to aid in the decision. Deploying AI does not move that duty to the model, the vendor, or the engineer. The procurement contract or internal documentation must let the institution obtain the information it needs to justify its reliance on the system and the decisions that follow. The Dutch tax authority deployed a model whose internal logic it could not interrogate, even at the level of its own civil servants. The moment a penalized family asked why, the institution had no answer.

One reply to all of this is that better accuracy and explainability will close the gap. They will not because the gap is not technical. A perfectly accurate model still tells a court only what the case is statistically, not what the law permits an institution to do with that information. Counterfactual explanations and feature attributions describe the model with more precision, but they still cannot tell a court whether a decision the institution reached on the basis of the model rests on grounds the law permits. Better model accuracy and technical description, while desirable, do not answer questions of law.

When an institution cannot account for its decision in terms the law can evaluate, it has tried to outsource its authority to the AI system it relied on. That is not authority a court or an agency has to give. In Toeslagenaffaire, when the institution was finally asked to defend its decisions in legal terms, it could not. Whether the model was accurate or sophisticated was beside the point. The same standard applies wherever AI shapes decisions about rights, from risk scores in bail hearings to generative outputs in administrative decisions.

Ignacio Cofone is Professor of Law & Regulation of AI, University of Oxford. You can reach him by e-mail at ignacio.cofone@law.ox.ac.uk.

Balkinization Symposium on the Global Political Economy of Artificial Intelligence

2026-08-29T12:30:00.000-04:00

On March 27th-28th, the Yale Information Society Project held a conference on The Global Political Economy of Artificial Intelligence. The co-organizers were Mikey McGovern and Caleb Yong.

This week at Balkinization we are publishing some of the essays from that conference. The participants are Ignacio Cofone (Oxford), Claudia E. Haupt (Northeastern), Ava Liu (Harvard), and Amy L. Stein (Florida), with a postscript by Mikey McGovern and Caleb Yong (Yale ISP). An essay by Valérie Bélair-Gagnon (Minnesota), “The Fragmentation of Truth,” was published in April.

Trump, vaccination, and the right to kill children

2026-08-19T10:19:42.296-04:00

Does liberty mean a right to kill other people’s children, slowly and painfully? It would, if the Trump Administration had its way. It’s pressing states to allow broad vaccine exemptions as part of its larger campaign against settled medical practice.

The danger is clearest with measles. Children usually recover from it, albeit often with some permanent damage. But a 2016 California study found that when infants under a year old are infected, subacute sclerosing panencephalitis (SSPE) – in which the virus lingers in the brain and slowly destroys it – develops in about one in 600 cases, far higher than the 1-in-100,000 figure doctors long cited. Long after the initial infection, the child becomes clumsy and forgetful, then experiences headaches, fevers, and seizures, loses motor control, and finally becomes bedridden and dies. There is no cure.

Babies can't be vaccinated on the standard schedule until 12 to 15 months old — earlier doses, at six months, are only given for travel to outbreak areas and don't count toward full protection. (Under the schedule revisions the Department of Health and Human Services just proposed, some of that timeline would push even later.) Until a child is protected, the only way to guard against SSPE is to keep them away from unvaccinated people. In Germany in 2000, an unvaccinated 11-year-old boy was taken to the pediatrician with a fever. He infected six children in the waiting room, including three babies. Two of them developed SSPE. Natalie died in 2011 and Micha in 2013.

Measles is astoundingly contagious. You can catch it by entering a room two hours after an infected person left. The country has recorded more cases since early 2025 than in the previous 25 years combined, according to Centers for Disease Control and Prevention data. More than 70 percent of confirmed cases are children. The administration's anti-vaccine rhetoric is a principal driver, and if it gets its way, the unvaccinated share of the population will keep rising. Scale up that one-in-600 figure, and that's a lot of dead children.

I elaborate in a new column at USA Today, here.

26th Amendment Circuit Split

2026-08-18T12:08:59.481-04:00

The Fourth Circuit today held that a South Carolina law restricting "no-excuse" absentee mail-in ballots to voters 65 and older violates the 26th Amendment. This decision stands in contrast to other circuits that upheld related laws during the pandemic. The Supreme Court has never heard a 26th Amendment case. This could be the Term where that silence ends.

Technology and Constitutional Rot

2026-08-16T09:30:00.000-04:00

I have posted a draft of my latest article, Technology and Constitutional Rot, on SSRN. Here is the abstract:

Technological change affects the Constitution not only by creating new problems of constitutional interpretation, but also by changing the distribution of economic and political power. New technologies alter what governments and private actors can know, control, predict, and accomplish. When constitutional institutions fail to adapt, large shifts in power and control can lead to constitutional rot: the process by which a democratic republic becomes less democratic and less republican over time. The United States has suffered from increasing constitutional rot over the past four decades; rapid technological change has made the rot worse.

Our Second Gilded Age has many similarities to the technological and economic upheavals of the First Gilded Age, which was also a period of constitutional decay. We now live in the Algorithmic Society, where public and private decision making increasingly depend on algorithms, artificial intelligence, platforms, large-scale data collection and digital surveillance. The Algorithmic Society produces an Algorithmic State, including a National Surveillance State organized around prediction and prevention. These changes disproportionately strengthen the executive branch, weaken Congress, limit practical judicial oversight, and increase government’s dependence on powerful private firms and privately-owned technological infrastructure.

Large global technology companies increasingly exercise governing power over communications, commerce, national security, access to information, and public debate. As a result, government and technology firms engage in repeated attempts at mutual co-optation, blurring traditional distinctions between public and private power. Digital platforms reshape the public sphere through an attention economy that weakens knowledge, intensifies political polarization, and erodes trust. These changes exacerbate four central features of constitutional rot: growing wealth inequality, political polarization, loss of trust, and policy disasters.

Despite these dire circumstances, the United States has recovered from periods of constitutional rot before. The First Gilded Age gave way to the reforms of the Progressive Era and the New Deal. Today constitutional renewal involves a different set of reforms: new digital privacy laws and new antitrust, civil-rights, and due-process protections. Renewal means reconstructing and improving the knowledge institutions that underwrite our democracy. It requires structural changes that better allow Congress to check and oversee the executive branch. And it requires reforms that secure and strengthen our system of democratic representation.

Analyzing War Powers: Ways Forward (Part 3)

2026-08-13T17:03:17.989-04:00

Despite the lack of constitutional amendments with respect to war powers, there are two inescapable legal changes that must be kept in mind when analyzing questions of war powers in the present. Along the pathway pioneered by Bruce Ackerman, one might call them “amendment-level.”

The first is that the United States has global responsibilities (along with the ability to project power) it did not have in the eighteenth and nineteenth centuries, not only because the foreign policy landscape is different but because of duly ratified treaties and other agreements that are their de facto equivalent. The second is that the War Powers Resolution (WPR) is, as a prominent scholar recently reminded us, “binding law,” and, by its terms and purpose, remains a cutoff point for the legal relevance of historical executive practice. In other words, although this has never been acknowledged by executive branch lawyers, it reset the table with respect not only to executive-legislative relations but with what counts as a sound argument.

There’s also a logical point that should be borne in mind – that the oft-cited distinction between offensive and defensive wars never made any sense, either in the eighteenth century or in our own. As becomes evident if we treat war powers in the context of foreign affairs (see Part 1 of these posts), war is always a political and policy choice. As such, it is governed by the same set of provisions in the Constitution irrespective of whether it can be classified as offensive or defensive. Furthermore, war is a choice even if we are “suddenly attacked.” Believe it or not, American history has featured a number of instances where U.S. military forces were egregiously attacked, yet no one jumped to the conclusion (as Hamilton once mistakenly argued) that we were automatically at war. On top of this, it appears that the legal effect of the U.N. Charter (one of those treaties mentioned above) was to rule out recourse to offensive war as an instrument of foreign policy and also, by the way, declarations of war. But that just moves us back to where we should be, which is whether Congress authorized the war in question. As reviewed in post 2, where the past used declarations of war, we use AUMFs. No harm, no foul.

At the risk of belaboring an argument, it is important to understand a further detail about the conventional war powers debate. It is often set up this way: “The Constitution specifies it is Congress that is supposed to declare (authorize) war, but from the beginning of the republic presidents have committed troops to significant military actions without the consent of Congress. We can’t make progress without acknowledging both of these truths.” So people say! But orienting the debate in this way is fundamentally skewed and skewered rather easily.

The problem is any inquiry into what happened in the past not only should be based on good evidence and be even-handed (in, say, acknowledging the inescapable presence of declarations and authorizations of war for America’s most significant military conflicts), but be securely rooted in the self-conscious understanding of the participants. That means asking if officials (and, presumably, the American people as a whole) in the past understood unilateral executive actions to mean that presidents could initiate “war” on their own. The evidence for this is decidedly lacking. In my book, I focus on the debate over the Versailles Treaty after WWI as a good example. Despite the many presidential military maneuvers in the nineteenth century, it is apparent that no one thought they were “precedents” for anything. That was an invention of the executive branch later in the twentieth century. Not to mention that this entire line of reasoning was featured prominently in the debate over the WPR – and decisively rejected by supermajorities in both houses of Congress. At least in the war powers context, the problems with relying on historical practice or “gloss,” are legion.

What this means is that the war powers debate is not much of one, at least if we confine ourselves to the period before Truman and his successors came up with the idea historians labeled the “imperial presidency.” We are indeed having a debate, but it is literally a “mid-century modern” one. As time has worn on, it is increasingly a debate dominated by the analysis of legal opinions authored by the DOJ’s Office of Legal Counsel. I’m sorry to say that I’m not impressed with the quality of their arguments. Moreover, parsing OLC opinions is leading us away from an inquiry that is both more important as a general matter and terribly pressing right at this moment.

As I hope to demonstrate in a future article, the evidence has mounted throughout the twenty-first century that the policy costs of presidents refusing to involve Congress in a meaningful way in decisions for war are substantial. Vietnam was an early example of this. Put bluntly, the additional evidence from the conflicts in Afghanistan, Iraq, Libya, and now Iran is that the executive branch is incompetent on its own to make both decisions of whether to initiate war and how to conduct the war. The example of failure to deliberate over war aims in all of these conflicts is particularly compelling. What are our war aims in Iran? If you’re badly confused, you’re not alone! Indeed, similar problems plagued all of these executive-led conflicts. It is this evidence of decision making we should be reviewing with the greatest of care.

With respect to war powers, it seems as if the signal advantages Alexander Hamilton claimed for unified executive decision making in The Federalist can be realized properly only in a shared powers universe. This is one in which both political branches share responsibility and accountability for key decisions like whether and how to go to war. Over time, as I argued in Long Wars and the Constitution, this should produce a “cycle of accountability” in which a shared learned experience is possible, hopefully for the better.

Our recent history shows that the constitutional plan for war makes sense – that is, without effective congressional participation executive decision making for war is inherently infirm, arguably as the eighteenth century founding generation anticipated. The point of going through Congress is not to check a box, but rather to provide fundamental legitimacy to an inherently risky course of action and provide a backstop to an executive congenitally unable to make reasonable and effective foreign affairs and military decisions.

Milton, Mill, and (Maybe) Aristotle on Why Hearing Horrible Speech Makes You a Better Person

2026-08-12T10:43:59.467-04:00

How do you sell the idea of free speech to people who worry that words hurt? In the last few years, there have been increasing demands, most prominently on college campuses, to shut down hateful speech. A defense of free speech needs to explain why we should let people say vile things that no one should ever say to anyone.

The familiar arguments for free speech aren’t responsive to these concerns. Consider a few pronouncements by the Supreme Court. The judges sometimes focus on good consequences: “It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Sometimes they just invoke rights: “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’”

Suppose that you (like many today) are unmoved by these considerations, that you don’t believe that the good consequences are likely to follow, or that you don’t believe that people have a right to say worthless and harmful things. What reason have you to want to live in a regime that protects such speech?

Fortunately, some classic formulations of free speech do not depend on optimism or the bald claim of rights. John Stuart Mill’s essay On Liberty is best known as an attack on government censorship. But the state is not the only censor he worries about. He denounces “a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.” He fears a population “whose whole mental development is cramped and their reason cowed by the fear of heresy,” and “who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would admit of being considered irreligious or immoral.” John Milton made a similar argument in 1644: censorship can induce a “gross conforming stupidity,” and officials should understand that “that which purifies us is trial, and trial is by what is contrary.”

These formulations focus, not on the collective benefits of free speech, but on the kind of person one wants to be. It is good to be awake rather than asleep, to have contact with the actual minds of other people instead of living one’s life in a solipsistic haze. And it is good to be resilient in the face of stress. A regime of free speech is more likely to produce people of that sort. That produces a distinctive kind of collective social unity: a society of citizens who interact on terms of mutual respect, by genuinely knowing what one another think and discussing their differences like adults.

I elaborate on these claims in a new piece in the Journal of Free Speech Law.

What’s Wrong with the War Powers Debate (Part 2)

2026-08-08T15:30:37.677-04:00

It has been difficult for participants in the war powers debate to describe accurately the legal status quo. Is the WPR’s constitutionality in dispute? If it is constitutional, does it play a meaningful role? Are AUMFs the constitutional equivalent of declarations of war? What does the Constitution require in the context of the national security state built after WWII? What is the legal position of the executive branch as represented in OLC opinions? And so on.

To make progress in this fraught area, we need to think differently about the way the Constitution is enforced. It is not only enforced through the judiciary. The other institutions responsible for enforcing the Constitution, including political parties, do not enforce it all in the same way. The political branches deserve that name because they do not necessarily follow a juridical model. For example, they do not necessarily rely on or pay much attention to common law reasoning based on exemplar cases or historical practice. So while the Constitution is enforced politically as well as legally, they do not look the same.

In this light, consider a recent attempt to make sense of the war powers debate by Jeh Johnson and Ethan Klaris, published in a 2026 issue of the Journal of National Security Law & Policy. This article attracted attention because Johnson has practical experience. He was General Counsel of the Department of Defense and later Secretary of Homeland Security in the Obama administration. Johnson and Klaris interviewed several key members of Congress with respect to their views on war powers, albeit mostly Democrats. Their subtitle states their fundamental theme: “Executive Expansion and Congressional Retreat.” This is supposed to describe the course of war powers throughout American history. I contend this is misleading as history, but it is actually difficult to find a steady throughline to contest their argument. This is because they fail to set forth criteria that would enable us to determine whether, say, Congress was retreating or advancing.

This failure is part of a larger problem with the war powers debate. Making distinctions about how and why Congress acts is long overdue. Besides the distinction between juridical and political enforcement of the Constitution, we need also to think about the purpose of the “declare war” clause and the WPR. Is it to make war constitutionally legitimate or, in the end, to slow down or stop contemplated military operations? Some commentators appear to assume that if there were full compliance with the Constitution and the WPR, this would sidetrack or terminate most proposed military adventures. But that is a non sequitur, a literal “does not follow.” The legal provisions respecting war are about legitimacy in the first instance, not about putting national security policy on a particular pathway.

Similarly, consistent with the oft-repeated dictum that Congress is a “they,” not an “it,” some members of Congress, at least beginning in the Cold War and after, have always supported vigorous presidential leadership in foreign affairs, including with respect to decisions for war. In contemporary times, some adhere to an “ideology of threat,” namely that the world is a dangerous place and must be periodically curbed through the application of overwhelming military force as determined by the president. The late Senator Lindsey Graham was an excellent example. Further, despite the genuine bipartisan support for the WPR, in the wake of Vietnam and with the return of Republican presidents, the parties developed an asymmetry with respect to war powers, especially in the Senate. Democrats remained haunted by Vietnam for years, while Republicans shook the trauma off, figuring (like Nixon) that they were not ultimately responsible.

These distinctions are relevant in assessing the history of executive-legislative relations that is central to the Johnson and Klaris article. But there is no sign they took them into consideration. This leads to some rough going. For example, what is the significance of AUMFs? Johnson and Klaris imply that it is significant that Congress has declared war only five times in American history. But if one adopts the view taken by Curtis Bradley and Jack Goldsmith, AUMFs are the same as declarations of war. Suddenly, the universe of explicit congressional approvals (and thus, meaningful congressional involvement) expands. For that matter, if we pay due attention to John Hart Ely’s argument on the Tonkin Gulf Resolution, it was fully effective to authorize (most) of the Vietnam War. At least such views should be acknowledged.

If we take proper account of AUMFs, we have to substantially revise Johnson and Klaris’s partial history. After all, AUMFs comply with the WPR. The fact is that until we arrived at Trump’s Iran war, AUMFs were used to justify every significant military operation after the early Cold War period. I put it that way because there is little doubt that Presidents Truman, Kennedy, Johnson, and Nixon held maximalist views about presidential war powers. Perhaps their views were well grounded in historical practice, although that contention is the subject of a serious dispute. But the WPR should be regarded as cutting off recourse to that sort of argument, as Congress consciously rejected the Nixon administration’s protestations in its override of Nixon’s veto. In addition, by the Clinton administration’s intervention in Kosovo, Congress was full of members willing to contest vigorously presidential assertions of war powers. By this time, Truman’s infamous decision to intervene in Korea unilaterally was regarded as a negative precedent, something to be avoided. You won’t learn any of this, however, from the Johnson and Klaris article.

There’s one more point about the war powers debate in the twenty-first century that receives no mention from Johnson and Klaris. This is the development of a clear asymmetry between how the Democratic and Republican parties treat war powers, especially in Congress. While both parties seem to have abandoned the precedential effect of Truman’s Korea decision, the 2001 OLC opinion by John Yoo showed that we had not left the Cold War presidency entirely behind. Yet Yoo’s maximalist vision of presidential war powers has zero currency on the Democratic side of the congressional aisle. For that matter, there is no example of an OLC opinion during a Democratic presidency that comes anywhere near to embracing Yoo’s vision. I suggest Trump’s Iran war decision shows, however, that Yoo’s opinion is not the weird outlier many assume. There remains a strong strain of presidential unilateralism among Republicans. This is a key context for understanding the present state of war powers.

Doing the history of war powers in a way sensitive to context makes Trump’s decision to go to war and his lack of attention to legal justification stand out all the more. No, not all contemporary presidents are the same. Furthermore, the multiple AUMFs technically legitimating wars that were policy disasters (such as Vietnam, Afghanistan, and Iraq) shows that more is at stake in deliberating about war than who makes the initial decision. I’ll take this up in my last post.

The Iran War and the War Powers Debate (Part 1)

2026-08-04T12:02:12.508-04:00

President Trump’s February decision to go to war with Iran has produced a negative reaction in Congress and inspired another round in the war powers debate among pundits and legal commentators. Once again, probably more heat has been generated than light. In particular, there is so much emphasis on whether and to what extent Congress has a role under the Constitution that the issue of why Congress has a role gets short shrift. It is as if the commentariat is looking for Congress to simply punch a ticket rather than make a substantive decision. One has the sense that the whole debate is occurring through the wrong end of a very long telescope.

In these posts I will apply the position I develop in my 2013 book Long Wars and the Constitution to the case of the Iran War. I start not with any specific clause of the Constitution, but its design with respect to the conduct of diplomacy and foreign affairs. In contrast to war initiation, when this topic arises in litigation the executive branch has plenty of precedents to draw on in support of its exercise of legal authority. Yet it is also clear from both the text of the Constitution and historical experience that there is no such thing as conducting the nation’s business overseas without Congress. In this respect, the historical record of joint branch involvement in foreign affairs resembles the role of Congress in regulating the president’s commander-in-chief power, including in wartime, described in a set of articles by David Barron and Marty Lederman. In other words, a situation of shared rather than exclusive powers.

This point about the shared conduct of foreign affairs goes deeper than to say Congress is involved by constitutional design. It is that there is no proper way of describing, understanding, or evaluating specific presidential war powers decisions and actions without considering how they figure in the ineluctably connected tasks of advancing the foreign policy and protecting the national security interests of the United States. These responsibilities are exclusively national and certainly presidents have usually been at the forefront. Further, while the presidential “first-mover” status that many decry is partly the result of presidential initiative, it is not best characterized by the archaic term “usurpation” as it is mainly a product of congressional delegation, whether by law or through the party-political process. Either way, there is no inherent violation of the constitutional plan.

What difference does this approach make when questions of presidential war powers do arise? Consider first the commonly asked question of whether we are at “war.” “War” is arguably a vague term, with some clear cases and others on the borderline. The concentration by pundits and members of Congress on defining “war” nonetheless permitted the Trump administration to claim briefly that the Iran War was over(!) before the sixty day mark established by the War Powers Resolution (WPR). My approach is different. Reduced to a bare minimum, it says: stop thinking about “war.” At least, stop thinking about war in terms of number of ships, troops, planes and what they do or can do.

Instead think about the Trump administration’s goals and strategy with respect to the conduct of foreign affairs with Iran. If, just for example, the goal is “regime change” and reasonable evaluations of what it would take to achieve this in Iran involve military actions or the threat of war, then we are in the kind of “declare war” and “necessary and proper” territory described in the Constitution that was the basis for the WPR. As we are in the realm of shared power over foreign affairs and national security, Congress is required to have a role in making the relevant decisions. What counts is the overall objectives and strategy rather than parsing exactly how many aircraft carriers, planes, and troops are needed to achieve them.

This approach not only affords greater clarity than trying to define “war,” but also yields genuinely new insights with respect to the proper exercise of war powers. For example, the standard approach emphasizes the initial decision for war only such as President Truman’s June 1950 decision to commit troops to Korea. On my approach, it becomes clear that President Truman made two quite different decisions for war in Korea – the initial response to the North Korean invasion in June 1950 and the later decision to unify the peninsula which sparked a disastrous intervention by China. That is, once we consider Truman’s decision in the context of U.S. foreign policy, the distinction becomes apparent, whereas it does not if we emphasize the initial decision only. Further, we are better able to construct meaningful constitutional analyses of presidential decisions which could easily have led to war (such as those taken by President Kennedy during the Cuban Missile Crisis). We are also able to understand why decisions for war that were authorized by Congress could be nonetheless controversial, not simply in a political sense but along a constitutional dimension as well (such as the Gulf of Tonkin resolution).

As many highly qualified legal commentators have already concluded, President Trump’s Iran War is unconstitutional and illegal. I’ll set forth my take in Part 3 of these posts. But it is not illegal or unconstitutional simply because Trump failed to comply with the WPR or didn’t get Congress to check the right box on a declaration of war form (I’ll note the WPR point is true). The Iran War is unconstitutional and was likely (not only in hindsight) very bad policy because Trump did not clear his objectives and strategy with Congress is advance. This is the mandatory constitutional plan.

There’s another advantage to my approach which is relevant to our current circumstances, not simply with respect to our relations with Iran but to the Middle East. If we analyze war powers from the perspective of U.S. foreign policy and national security strategy, we will be led naturally to inquire why multiple presidents have had such a keen interest and keep initiating military actions in this part of the world. It is not by accident or coincidence. Any fair-minded study of the Cold War, starting at least with the Eisenhower administration, would show that the U.S. has a historic national security commitment to the Middle East that goes beyond a general concern with stability or even the future of the state of Israel. In fact, it was President Eisenhower who came up with the idea of obtaining Authorizations to Use Military Force, AUMFS in advance, prior to military action partly to cope with the uncertainties of pursuing foreign policy objectives in the region. One such longstanding objective is the commitment to keeping the Soviet Union or Russia completely out of the region for all sorts of sound reasons. Iran frustrated that objective after its 1978-79 revolution – which is yet another reason why we remain interested in Iran today. Of course, it’s not the only reason. The point, however, is that to evaluate properly presidential action in a constitutional sense we need to understand why presidents act the way they do. That can be achieved only through the kind of approach I advocate here.

In Part 2, I’ll use a recent article by Jeh Johnson and Ethan Klaris in the Journal of National Security Law & Policy to analyze the typical structure of the war powers debate and where it goes wrong.

The Groundhog Day Tariffs and the Problem of Executive Discretion

2026-08-02T17:18:24.554-04:00

Amidst a flurry of wildly erroneous charts and figures President Trump announced his “Liberation Day” tariffs on April 2, 2025. These included the boldest action any U.S. President has ever taken against the Heard and McDonald Islands. After almost a year, the Supreme Court struck them down as unfounded in law. President Trump’s immediate reaction was that he would reimpose broad tariffs on some other legal basis. He immediately ordered sweeping tariffs under a legal authority valid for only 150 days as he declared that his Administration would spend that time figuring out how to make the tariffs permanent.

As promised, on July 24, 2026, President Trump announced a new round of tariffs against sixty countries, including almost all our significant trading partners. (He does, however, appear to have gone soft on the Heard and McDonald Islands.) He bases this new round on section 301 of the Trade Act, which authorizes tariffs and other measures when “an act, policy, or practice of a foreign country…is unjustifiable and burdens or restricts United States commerce”. President Trump asserts that these countries gain an unfair advantage in trade with the United States because they do not exclude production inputs that come from forced labor, at least not to the extent that we do.

The Administration’s announcement gave a whole new meaning to “threadbare”. It failed to show that all these countries benefit from forced labor at all, much less that the products of forced labor give them an advantage equal to 10% or 12.5% of their trade with the U.S. The Administration also neglected to explain what its reaction would be if our trading partners were to impose similar or greater tariffs on us because of our “unjustifiable” acts, policies, or practices of gutting organized labor or blocking decarbonization, both of which surely give us a far more dramatic cost advantage than any benefit derived from forced labor in third countries. Unsurprisingly, these tariffs have now been challenged in court.

Internationally, this will do further damage to our reputation as a reliable trading partner. Economically, it will further tangle international trade and likely raise costs here and abroad. Legally, these endlessly repeating tariffs raise fundamental questions that go far beyond Trade Law.

In a complex modern economy, numerous important decisions cannot be specified by Congress in advance. Yet Members of Congress of both parties will hesitate to delegate discretion to the executive if they expect it will often be exercised in bad faith to reverse their policy choices our to retaliate for personal grievances. The solution to this dilemma is central to any plan to reconstruct Administrative Law after President Trump leaves office.

Rebuilding Administrative Law is much too ambitious a topic for a post here. (I have a full article on that in progress.) But President Trump’s Groundhog Day tariffs do suggest a few possible responses to the problem of wildly abusive exercises of discretion.

First, over the years Congress has grossly overestimated how much administrative flexibility is actually needed. Putting a large thumb on the scales for flexibility likely seemed easy in an era when norms of good faith were widely and when a more robust set of checks and balances created a need to avoid Congress’s wrath. As I have argued elsewhere, flexibility is not the unalloyed good it is often portrayed to be. Instead, it has costs and benefits that should be weighed thoughtfully.

Second, in cases such as trade policy where Congress genuinely cannot anticipate serious problems that may arise, a legislative path is still possible. Over the years, we have established numerous mechanisms under which the President may submit specific types of requests to Congress and is assured of an expedited decision. Among these are reports from military base closure commissions, proposed recissions of appropriated funds, and even some kinds of trade treaties. These rules typically provide rigid limits on the scope of presidential requests that may benefit from expedited procedures and then set out distinctive procedural rules. These include an accelerated schedule that prevents the presidential requests from being bottled up in committee, from being sabotaged with controversial amendments, or from being filibustered in the Senate. The request still fails if a majority in either chamber votes to reject or table it, but the special rules prevent Members from hiding behind the obscurity of congressional procedure to kill the measure unaccountably.

Rather than allowing the President to impose tariffs unilaterally, Congress could rewrite section 301 and similar authorities to allow submission of proposals for tariffs of a specified amount on a specified range of goods and services from one or more specified countries. Legislation with those provisions (but no others) would then be assured of expedited consideration. Members favoring different changes in trade policy would be free to try to move legislation through the regular order, but that would not prevent the President’s proposal from coming to a timely vote in precisely the form the President submitted. Absurd proposals like the Groundhog Day tariffs likely would have difficulty finding champions on the House or Senate floors; serious, well-supported recommendations would be assured of floor consideration.

Finally, some courts may feel uncomfortable declaring that the Administration’s obviously concocted factual rationale for these tariffs is, well, obviously concocted. They should not. Remarkably, President Trump himself has made the courts’ task here considerably easier. The Court rejected the first Trump Administration’s effort to put a question seeking citizenship information on the decennial Census after finding that its stated reason for doing so was obviously insincere. “Our review is deferential, but we are not required to exhibit a naiveté from which ordinary citizens are free. The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

In addition, the Unified Executive Theory enables courts to weigh the totality of the Administration’s behavior when assessing its credibility. Previously, a tendentious or even dishonest action by one agency could be attributed to an isolated bad bureaucrat and deemed largely irrelevant to what other agencies are doing. Now, the Court has determined that the President’s broad, unfettered removal power is essential to making subordinate officials “remain accountable to the President, and the President to the people.”

Since the Twenty-Second Amendment limited presidents to two terms, we have been led 37% of the time by presidents who were never again going to be accountable to the people. (President Trump has been immune from any further accountability to voters since he resumed office.) To reap the intended benefits from concentrating accountability in the President, some of the President’s accountability must be to the other two branches of the federal government. Now that the Unified Executive Theory empowers the President to impose strict, uniform standards of conduct, Congress and the courts can and should assume that the actions of any Executive Branch official reflect on the entire branch, at least unless prompt disciplinary measures are imposed.

In the context of the Unified Executive Theory, an administration’s propensity to falsify or mislead may properly be taken into account in disbelieving subsequent assertions. This should be all the more true for facially improbable claims such as those supporting the Groundhog Day tariffs. And this should be particularly true on issues, such as tariffs, where the Administration has made clear that it is determined to impose its will despite opposition from the coordinate branch with primary constitutional responsibility.

Our legal system places such a high premium on assessing character for truthfulness that it forces criminal defendants to forego taking the stand in their own defense if they wish to avoid having their prior unrelated, misconduct introduced in evidence against them. Our law believes it is so important that the trier of fact be aware of prior bad acts possibly showing a character prone to dishonesty that we are willing to accept the risk that the jury will conclude that the defendant committed the acts charged on the basis of otherwise impermissible character reasoning. If character for truthfulness is so important for a private individual seeking to stave off long incarceration or even death, surely it matters even more for a President facing only a policy loss to other elected representatives of the people and now equipped to enforce the highest standards of probity within his administration.

@DavidASuper.bsky.social @DavidASuper1