Constitutionalism and the Discontents of Judicial Power

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…