Abstract
At the heart of Constitutionalism and Its Discontents lies a beautifully simple and troubling paradox: constitutionalism empowers democratic self-government while constraining it through what Dieter Grimm called “rules about ruling.” Much of our current discontent, Mark Tushnet and Bojan Bugarič argue, stems from expecting it to do both perfectly. Their solution is characteristically bold: lower our expectations. Embrace a thinner, more procedural form of constitutionalism and stop placing so much faith in constitutional design as a cure for democratic decline.
In Constitutionalism and Its Discontents, Tushnet and Bugarič ask a fundamental question: what actually is democratic decline, and what drives it? Their insightful answer locates the problem less in constitutional structures than in economic vulnerability and the lived experience of insecurity within a global order that leaves many feeling disposable. That diagnosis rings very true. As Tushnet and Bugarič suggest, constitutional lawyers may need to cede some explanatory authority to political scientists and economists. Their analysis is professionally unsettling for my guild. Nevertheless, this shift in focus is one of this captivating book’s most compelling moves.
There have been long stretches of history marked by far greater material uncertainty than anything typical of contemporary liberal democracies, yet constitutionalism—or at least confidence in law prior to the consolidation of modern constitutional forms—did not appear as persistently embattled as it does today. To build on an insight by Susan Buck-Morss, one striking feature of constitutionalism’s global rise is that systems of slavery helped underwrite the economic foundations of the very societies that championed it. Charles Mills’s account of the “racial contract” further clarifies this history by showing how liberal orders were constituted through enduring structures of hierarchy and dispossession. Read together, these perspectives shift attention beyond economic precarity in the abstract toward the historically produced distribution of insecurity itself.
So perhaps, as Tushnet and Bugarič aptly point out, the discontents of constitutionalism are also discontent with law itself. They remind us of Dick the Butcher in Henry VI: “the first thing we do, let’s kill all the lawyers” (98). But as they note, today’s critics do not want no law. They want a different law.
This calls to mind the strange alternatives to law that are emerging. For example, the “sovereign citizen” (or “pseudolaw”) movements analyzed by Amy Cohen and Ilana Gershon do not seek to reform the state so much as to ignore it and act as if legal authority already resides elsewhere, often in radically individualistic imaginaries. Supporters recast public law as private contract: courts become sites of negotiation, judges, mere brokers, and citizenship, something one can opt out of through unilateral procedures. According to these movements, the constitutional state is illegitimate because it imposes obligations beyond individual consent: effectively, the state is a for-profit corporation in disguise.
If the crisis is not simply about too much or too little constitutionalism, but about a deeper dissatisfaction with what law is and does, then what sits between the “thin” and “thick” versions of constitutionalism helpfully discussed by Tushnet and Bugarič? Let me cautiously suggest a third path: “gastro-constitutionalism.” By this, I mean the ways constitutional law shapes who produces food and who eats what, as well as how food systems themselves feed back into processes of constitutional creation and change. Gastro-constitutionalism takes seriously a point Constitutionalism and Its Discontents powerfully gestures toward, that political mobilization—the real safeguard against democratic erosion—often begins with the most basic conditions of life. Food is central to this. It is essential for survival and health, but it is also economic, cultural, emotional, and political.
Tushnet and Bugarič hint at this (the book is full of instructive examples and analyses drawn from multiple countries). When discussing Brexit, they recall that “Boris Johnson regularly referred to the fact that EU regulations prevented the sale of shrimp cocktail-flavored ‘crisps’” (28). They read this as tapping into narratives of regulatory overreach and out-of-touch bureaucrats. I would add that it resonated because it was about food. Food anxieties—about safety, sovereignty, supply—have long been entangled with legal and political orders. In their discussion of corruption and populism, Tushnet and Bugarič push back against the derision directed at pre-election food distributions in Argentina, reminding readers of a basic fact: people need to eat (107). But the kinds of food distributed matter too. Beef, pork, and dairy—these choices are not neutral. They carry health, social, interspecies, and environmental implications. One might even say that some foods are more democratic than others.
This leads to a broader implication of Tushnet and Bugarič’s major claim. If the real work of constitutionalism takes place mostly outside constitutional law, in politics and the economy, we need to look more closely at the domains where actual mobilizing happens. Feminist constitutional scholars such as Sandra Fredman, Jaclyn Neo, Ruth Rubio-Marín, and Julie Suk have redirected attention toward care. Building on their insights, I would place food at the center of the discussion. Growing, preparing, and distributing food disproportionately fall upon women, especially poor women, migrant women, and women of color. In an age defined by the Anthropocene, armed conflicts, and deepening inequality, food is one of the defining political questions. Environmental degradation and unequal distributions of resources leave over one in ten people undernourished or malnourished. Yet, foodwork and food workers remain largely absent from canonical accounts of constitutional crisis.
Which brings me to a very gentle critique of this otherwise magnificent book: its cast of characters—the autocrats, the judges, and the theorists—many are familiar, and many are men. One way of expanding the book’s already rich account would be to broaden the lens to include the full range of actors who experience, contest, and reshape constitutional orders, especially women and marginalized groups. Doing so would deepen its sense of what is at stake in its own diagnosis of discontent. For if constitutionalism is in crisis, it is not only in courts, parliaments, and on screens—it is also in kitchens, households, hospitals, daycares, fields, and supply chains. It is lived in bodies.
I want to end on a note of cautious hope and poetry. One of the great strengths of Tushnet and Bugarič’s book is that it teaches us to think about constitutionalism with humility and openness without giving in to cynicism. If we are to scale back our expectations for constitutionalism, perhaps we also need to recover a more playful understanding of law itself. And for that, I turn to a poem by W. H. Auden that I discovered thanks to Elizabeth Emens. The poem is titled “Law Like Love.” Born in England, Auden wrote this ode to law in 1939, the year he moved to the United States. The poem is affectionate, but also slyly critical, not necessarily of law itself, but of our impulse to define it, interpret it, teach it, and speak in its name. Judges, priests, scholars, crowds: all claim authority over law, yet none can fully capture it. The poem starts with the following lines: “Law, say the gardeners, is the sun, Law is the one All gardeners obey Tomorrow, yesterday, today.”
From the first words, law is not abstract; it is embedded in cycles and in sustenance. The sun alone cannot ensure abundance; it only creates the conditions within which flourishing or floundering occur. And then Auden presents us with a series of competing voices on the law: “Law is the wisdom of the old, […] Law is the senses of the young. Law, says the priest with a priestly look, […] Law is my pulpit and my steeple. Law, says the judge as he looks down his nose, […] Law is The Law. Yet law-abiding scholars write: Law is neither wrong nor right”
Law is neither wrong nor right—isn’t that something we, as law professors, keep repeating to our students? Law multiplies into interpretations, each tied to a position, a role, and a form of life. The poem continues: “Others say, others say Law is no more Law has gone away.”
Had Auden anticipated Tushnet and Bugarič’s book? Reading Constitutionalism and Its Discontents with the care it deserves leads to a sobering conclusion: constitutionalism, even if it does not go away, will not save us from democratic decline, and constitutional design will not rescue politics from itself. At best, it can set the stage—often imperfectly—for conflicts that are ultimately decided elsewhere. The book leaves us with a clearer sense of its limits: law, constitutional or otherwise, cannot stabilize the very conditions that give it meaning. Auden offers a way of holding this insight without despair. Law may not be an answer in the way we often want it to be, but it remains something we can try to share and nurture, closer to love than to resolution: “If we, dear, know we know no more Than they about the Law, […] We shall boast anyway: Like Love I say.”