Book Launch: Constitutionalism and Its Discontents

On Thursday, 26 March 2026, the Global Centre for Democratic Constitutionalism (GCDC) organised a panel event to celebrate the launch of Constitutionalism and Its Discontents (The University of Chicago Press, 2026), co-authored by Professors Mark Tushnet (Harvard Law School) and Bojan Bugarič (University of Sheffield).

The discussion opened with the authors presenting the core arguments in the book. They highlighted the contemporary context of rising authoritarianism and the pressures this places on constitutional frameworks. The authors contended that constitutions can at best delay authoritarian advances rather than defeat them. They argued for deflating expectations of what constitutions can achieve and instead proposed a thinner conception of constitutionalism. On this view, political mobilisation, social movements, and civil society are more effective responses to authoritarian threats than formal constitutional rules.

Professors Tushnet and Bugaric — *Professors Tushnet and Bugarič*

The authors then provided an overview of the book’s structure. Part 1 addresses discontents with constitutionalism itself, arguing that modern constitutions constrain democratic decision-making across more areas than is desirable. Part 2 examines discontents with programmatic constitutionalism, focusing on problems created by constitutionalism in the economic programme of the EU. Part 3 explores discontents with democratic decline and how to address them. This part concludes that there is no historical or empirical evidence that adding more rules can prevent democratic decline. At best, constitutional rules serve as speed bumps that delay proto-authoritarian agendas and therefore create space for political opponents, civil society, and the like to organise and use the existing modes of politics to restore the decaying democratic regime.

Following the authors’ presentation, Professor Mathilde Cohen (CNRS – Centre National De La Recherche Scientifique) remarked that one of the book’s most compelling contributions is how it prompts us to ask what democratic decline is and what causes it. She highlighted that the authors place the answer not in constitutional structures, but in economic precarity and the lived experience of insecurity in a global order that makes many people feel disposable. She noted the authors’ suggestion that the discontents of constitutionalism may be discontents with law itself. This is reminiscent of the sovereign citizen movement, which seeks to ignore the state and the rule of law rather than reform it.

Professor Cohen then asked, if the problem is not too much or too little constitutionalism, but dissatisfaction with the law, then what lies between thin and thick constitutionalism? She proposed the concept of gastro-constitutionalism, which takes seriously the idea that legal mobilisation is the real safeguard against democratic erosion, and that such mobilisation often begins with the most basic conditions of life, including access to food. She argued that if the real work of constitutionalism lies in political mobilisation and economic conditions, then constitutional scholars must pay attention to where this mobilisation occurs. This perspective aligns with a growing turn in constitutional law scholarship that foregrounds the role of care and care work, with food work being one of its central forms. Ultimately, Professor Cohen suggested, the task is not simply to advocate for more constitutionalism or to scale back our expectations of it, but to confront what lies outside constitutionalism while being more honest about what we include when we speak of law, who we include, and who gets to tell that story.

Professor Theunis Roux (UNSW Sydney) described the book as provocative and commended its account of two distinct types of liberal constitutionalism – in the United States and in the EU – corresponding to the first two parts of the book. He suggested that the authors’ argument is premised on scepticism about the determinacy of constitutional adjudication. If that scepticism were softened, one might be more open to the idea that constitutional courts can play a constructive role within a liberal constitutional system. He further identified an underlying sociological premise in the authors’ preferred model of thin constitutionalism. That premise is the existence of a longstanding political tradition of reasonable accommodation of different viewpoints. He pointed out that many countries, particularly postcolonial ones, do not share this background since their political traditions were disrupted by imperialism. In such settings, there was little choice but to adopt legal constitutionalism, enforced through strong-form judicial review. This, he suggested, raises a broader question about the generality of the authors’ argument and how far across the world it extends.

On programmatic constitutionalism, Professor Roux further suggested that the EU’s economic constitution may not be paradigmatic. Rather, constitutions such as those of India, South Africa, Colombia, and Germany offer more representative examples. In these contexts, the claim that the constitution closes down the ability of social democratic parties to properly represent the disenfranchised working class does not straightforwardly apply. Nonetheless, he observed that a similar phenomenon is evident, which is attributable to the supranational, neoliberal de facto economic constitution that disables nation-states from addressing questions of gross economic inequality and poverty.

Responding to the comments, Professor Tushnet expressed support for the idea of gastro-constitutionalism, noting that it resonates with arguments linking the idea of food to notions of ethics and democracy. He also observed a common theme in the comments: that many things driving the discontent with constitutionalism lie outside constitutionalism itself, such as colonialism and international neoliberalism. Pointing to Frank Michelman’s argument on the habitus of legal reasoning, Professor Tushnet suggested that the challenge lies in historicising this habitus, which may not have the endurance needed to sustain the kind of argument Michelman advances. He further noted that the point on colonialism merits further exploration and scholarship from the Global South. Regarding scaling back expectations, he drew an analogy to the idea of ‘good enough parenting’, suggesting that rather than striving for a perfect constitution, what is needed is a good enough one – and a good enough constitution can be a thin one.

Professor Bugarič expressed some scepticism with the suggestion that the EU constitution is not paradigmatic and is clearly distinguishable from that of other countries such as Germany. He pointed to work by some German scholars, which demonstrates a link between the German emphasis on austerity and the challenges identified in the book’s discussion of the EU’s economic constitution. Additionally, addressing the point about the generality of the book’s arguments, Professor Bugarič acknowledged the importance of longstanding political traditions but cautioned against treating them as the only thing that matters in democratic development. He gave the example of Denmark, noting that early forms of Danish populism should be credited for the development of a strong form of Danish constitutionalism. He appreciated the importance of context but suggested that this does not necessarily undermine the generality of the argument.

The discussion ended with a question-and-answer session with members of the audience. The event was chaired by Professor Erin Delaney (UCL Laws, GCDC).