Mark Tushnet, Review Essay: For Constitutionalism (Oct. 8, 2022) (reviewing Martin Loughlin, Against Constitutionalism (2022) and Roberto Gargarella, The Law as a Conversation Among Equals (2022)).
Abstract: This Review Essay uses the publication of Martin Loughlin’s Against Constitutionalism and Roberto Gargarella’s The Law as a Conversation Among Equals as the occasion for reflections on the tension between contemporary constitutionalism and constitutional democracy, a tension both authors identify and analyze in detail. After laying out their concerns, the Review Essay constructs an argument for a different kind of constitutionalism, one that is predicated on deliberative interactions among the people, flexible, and respectful of fundamental rights. In that form of constitutionalism, structural arrangements and specifications of fundamental rights are always provisional, subject to revision after considered deliberation among the people. The Review Essay concludes that such arrangements deserve the honorific label “constitutionalist,” and addresses some arguments to the contrary.