Letting Go of Faith in Constitutionalism

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026).Colm O’Cinneide, UCLIntroduction - Keeping the Constitutional Flame?On the very first page of Constitutionalism and its Discontents, Mark Tushnet and Bojan Bugaric provide a wonderfully succinct summary of constitutionalism’s current ‘discontents’. Across the democratic world, constitutional controls are crumbling, exposed as lacking in effectiveness, and/or becoming the focus of sustained and divisive political controversy. As Mark and Bojan point this, the latter is a particularly corrosive problem: ‘it runs up against one of the hopes held out by constitutionalism’s proponents, that it provides a neutral framework for the resolution of partisan conflicts’ (p. 1). In general, the constitutionalist cart seems to be overloaded: courts and other guarantor institutions are constantly accused of both over- and under-reaching, even as their authority…