Constitutionalism and Its Contents

For the Balkinization symposium on Mark Tushnet and Bojan Bugaric, Constitutionalism and Its Discontents (University of Chicago Press, 2026). Madhav Khosla In contemporary politics, what we now routinely think of as a crisis of democracy has proceeded alongside a certain crisis of constitutionalism. Our reality isn’t merely one of democratic disenchantment, where we bemoan the electoral victory of disreputable candidates, the incapacity and misgovernance of representative government, or the disharmony between policies and outcomes. Instead, our basic institutions are functioning in tragic ways, public offices are betraying the very logic for their existence, and the constitutional system, as it were, seems to be part of the problem rather than the solution. It is no surprise then that major public law theorists are now “against constitutionalism” and are urging the abandonment of “constitutional structures.” And the electoral arena, in turn, is witnessing a kind of competitive…