Discontent with Constitutionalism and Its Discontents

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…