This chapter explores the idea of opposition. One may make known one’s opposition to specific measures and one may make known one’s opposition to those who hold the office of government. While opposition to those who rule may flourish only in constitutional arrangements that contemplate changes in government, the freedom to make known opposition to measures may obtain and flourish even absent such arrangements. These two different modalities of opposition – to measures and to governments – draw on a reciprocal understanding that those who oppose and those who rule are both committed to the public good. Depending on the design of its system of government, a constitution may enable or empower opposition, with the parliamentary form of government differing in important respects from the presidential. Some constitutional arrangements and proposals award to opposition members in legislatures and elsewhere some degree of authority in exercising the office of government. Whatever the merits of such coalition or consensus arrangements and proposals, they change the function of opposition, for when those who oppose begin to govern, a version of the question quis custodiet ipsos custodes (who guards the guardians) arises: who stands in opposition to the opposition?

The Introduction starts by exploring three varieties of constitutional theory: normative, conceptual and positive. It then offers an account of the basic concept of a constitution, noting how it differs from its various conceptions. This section also defends the analytical structure of this volume into values, modalities and institutions as part of the basic concept of a constitution. The third section turns to constitutional norms, both written and unwritten, and their role within even a codified constitution. Finally, we look at the variety of constitutionalisms as a product of the essential contestability of the values, modalities and institutions of any conception of the constitution, be that conception theorised normatively, conceptually or positively (or draw on elements of all three approaches). This diversity is exemplified by the contrasting views of the contributors to this volume.

Constitutional hardball consists of practices that are consistent with the formal requirements of constitutional democracy but that destabilize and potentially transform it. This Chapter examines why political actors engage in hardball, focusing first on their short-term political motivations and then turning to the function of constitutional hardball within reasonably well-functioning constitutional democracies. The Chapter ends with a discussion of what might be done to convert constitutional hardball into ordinary political maneuvering, conclude that such efforts are unlikely to succeed and might be inappropriate (though not illiberal) efforts to halt more or less ordinary transformations in political practices.

The rule of law is a normative political ideal. This chapter presents two approaches to understanding it. The first is the legal essentialist approach, which derives an account of the rule of law from an account of the essence of legality and legal systems. The second is the limited government approach, which derives an account from a normative theory proposing a role for law in opposing and negating the arbitrary power of persons over others. The chapter contends that the latter approach is more persuasive than the former. However, and despite recent refinements, the approach has a legacy of libertarian thinking and has not acknowledged what the author of this chapter refers to as a regulatory conception of the rule of law which has a prominent social dimension. The social dimension entails a duty founded upon the rule of law ideal to legally regulate private arbitrary powers whose exercise allows some to impose coercion as well as non-consensual exploitation on others. The regulatory conception and its social dimension help us understand the appropriate relationship between the rule of law and human rights, the welfare state, and democracy.

The constitutional review debate is highly abstract, often ignoring relevant procedural aspects, and defined by the unrepresentative case of the U.S. Supreme Court. This paper argues against a misleading generality and connects elements of a general critique with various forms of constitutional review. The fact that constitutional review cannot be justified by vague references to ‘rights’ or ‘reason’ raises two questions: Are there relevant differences in the justification (1) and decision-making procedures (2) of courts and legislatures? (1) The general assumption that courts lack democratic legitimacy ignores differences between courts with and without explicit constitutional review mandates. While insufficient to resolve the legitimacy question, such mandates necessitate focusing on a particular court rather than discussing constitutional review in general. (2) The relevance of procedural differences is often overlooked. Examples for this are the non-recognition of the difference between constitutional ‘settlements’ of rights cases by Congress and the Supreme Court, and the disregard for the political character of legal standards. Ultimately, an ambiguity between political, legal and moral constitutionalism becomes apparent. While the critique of constitutional review can be understood as a core topic of political constitutionalism, a community may well opt in favor of legal constitutionalism through its political organs.

What are the elements uniting (or distinguishing) entities that in different jurisdictions and historical periods, have been officially called General Congresses, Constituent Parliaments, Constituent Congresses, National Constituent Assemblies, Constitutional Assemblies, Assemblies of Revision, Parallel Constituent Assembles, or Conventions, but at the same time are generically labelled by political actors and academics as ‘constituent assemblies’? In attempting to answer that question, the objective of this chapter is threefold. First, to describe the main features of the type of institution that can be accurately identified as a constituent assembly. This requires a conception that is broad enough to cover most constitution-making bodies that would be normally labelled as ‘constituent assemblies’, but specific enough as to discriminate against entities that lack certain features. I propose that, while constituent assemblies may be understood in terms of their form or function, it is the nature of their power what distinguishes them from other constitution-drafting mechanisms. My second objective is to enquire into the limits of the power of -a properly understood- constituent assembly. Third, and relatedly, to consider the effects that the attempt to constitutionally regulate such an entity has on its ‘constituent’ nature.

This chapter argues that an adequate assessment of revolutions (and the role of law in revolutions) is often stymied by historical exclusions and theoretical myopia. Historical exclusions centralise certain experiences and present sanitized and one-sided narratives of the revolutionary experiences they centralise, especially with respect to violence, slavery, and colonialism. On the basis of such ideological uses of history, theoretical accounts paper over these social and political realities in order to legitimate particular revolutionary constitutions and to elevate them to the status of a paradigm or ideal type. This paradigm serves as the yardstick by which other experiences are assessed. The main feature of this paradigm is that it postulates a distinction between political and social revolutions. It presents the American Revolution of 1776 as an exemplar for the political revolution that concerns itself with the establishment of government under law. In contrast, the French Revolution of 1789 is presented as an exemplar for the social revolution that also seeks to tackle social injustice. The deficiency of this paradigm construction is not merely methodological, but also substantive and normative. It reduces the plurality of the revolutionary phenomena, it ignores the revolution’s dialectical nature, and it presents a certain type of revolutionary constitutions as ones that legitimate the polity.

The concept of constituent power emerges alongside that of the modern documentary constitution. It expresses the conviction that the authority of the constitution rests on its having been drafted in the name of ‘the people’ who, through an exercise of their constitution-making power, are the authors of that constitution. Conceiving the constitution as an expression of collective self-government, constituent power is therefore closely associated with the concept of popular sovereignty. This chapter examines how constituent power emerged in modern thought, explains its original meaning, sketches its subsequent evolution in thought, and evaluates the role it continues to play in contemporary constitutional discourse.

The chapter articulates a political theory of secularism that can be defended against common, legitimate criticisms of existing forms of secularism. What I call minimal secularism is not vulnerable to the claim that secularism is hostile to religion, marked by an ethnocentric legacy of church-state separation, or committed to a Christian, and specifically Protestant, conception of religion. In addition, it is more structured and precise than liberal philosophies advocating state ‘neutrality’ towards the plurality of conceptions of the good life. Minimal secularism is a thin, yet attractive, transnational ideal for progressive politics.

This chapter explores the nature of the legislature and its relationship to constitutional government, focusing in particular on the importance of legislative agency and the dynamics that frame its exercise. The chapter begins by reflecting on the objects of legislative action, arguing that authorising a legislative assembly to legislate changes who legislates but not what it is to legislate. The object of legislative deliberation and action should be the common good and securing this end requires agency. The assembly faces many challenges in exercising agency, which it is structured to overcome, partly by way of its relationship to government, a relationship that goes well beyond acts of legislation. The relationship between legislature and government shapes the character of a constitutional order and bears on the relationship between legislature and the people. The legislature’s duty is to represent the people, which makes self-government possible. The legislature should deliberate and act for the people and be accountable to the people, with legislative deliberation taking its place in a wider public conversation. The legislature’s capacity for agency informs how legislative acts should be understood to change the law and helps explain the moral importance of legislative freedom and the limits on that freedom.

Entrenchment is a constitutional tool that renders legal change more difficult. This chapter examines the forms entrenchment can take, and the reasons for and against entrenchment. It argues that entrenchment can, on occasion, help resolve constitutional problems by requiring law-making institutions to depart from the normal way in which they effect legal change. Entrenchment rules are at their most attractive where there is a connection between the reason for entrenchment – the reason why the normal rules of legal change are problematic in a particular area of law – the type of entrenchment rule adopted, and the area of law entrenched.

The issue of international migration raises distinctive normative challenges for liberal democratic states, which regard certain rights and liberties as fundamental and have institutionalized them through constitutions. Most migrants want little more than to make better lives for themselves. If people wish to migrate across borders, why shouldn’t they be able to? States exercise power over borders, but what, if anything, justifies this power? If states are justified in excluding some and accepting others, what should be their criteria of selection? This chapter provides an overview of the leading normative positions on migration. It considers two main positions: arguments for open borders and arguments for state sovereignty. It then makes the case for a middle-ground position of qualified state sovereignty, “controlled borders and open doors.” The final section discusses two challenges to liberal constitutionalism posed by migration: what is owed to refugees outside a state’s borders and unauthorized migrants inside a state’s borders.

Federalism is a distinctive form of constitutional rule but one that has largely been neglected by both political and constitutional theory. Existing accounts of federalism tend to focus almost exclusively upon its institutional manifestation. What is lacking is an account of the common conceptual underpinnings that unite these various institutional forms within the genus of one constitutional idea. In this chapter Stephen Tierney argues that the core idea of federalism can only be arrived at by way of constitutional theory. Constitutional theory explains both how and why law is used to manage political power. Federal constitutions manage and transform political power for a discrete purpose that is fundamentally distinguishable from other constitutional forms. This chapter contends that federalism must be addressed as a specific genus of constitutional government for the modern state which, in the act of constitutional union, gives foundational recognition and accommodation to the state’s constituent territorial pluralism. The purpose of the federal constitution is to maintain the foundational relationship between pluralism and union through the creation and reconciliation of different orders of government. This marks a significant fork in the road between federal and unitary constitutionalism, not just in institutional terms but at the most fundamental level of constitutional identity and legitimacy.

Elections are central to the institutional life of actually existing democracies. Though the presence of elections is not a sufficient condition for a society to be considered democratic, it would seem to be at least a necessary condition. Given this fact, it is surprising to note that the question of elections has only been dealt with in a piecemeal way by political philosophers. A research agenda placing elections at the centre of the concern of political philosophers would have to focus on (at least) the following questions. First, are elections the best way in which to instantiate the democratic principle of the equality of all citizens, and if not, what institutional complements should accompany them? Second, which among the very many electoral systems that have been proposed by theorists of elections and attempted in actually existing democracies is best? Third, who should receive the democratic franchise, and are the exclusions that are practiced (along lines of age, residency, citizenship status, and so on) in many societies justified? And fourth, should we seriously consider other methods, such as sortition, to choose our political representatives? These, and many other questions besides, would be at the centre of a research agenda focussed on elections.

The chapter discusses the comparative constitutional theory of parliamentary and presidential government as well as various hybrids. It suggests that the much-discussed perils of presidentialism, to the extent that they exist, may largely be due to the kind of personalism that results from directly electing a fixed-term president. When the comparative study of executive formats goes beyond the standard trichotomy of parliamentary, presidential, and semi-presidential systems, we can see that the branch-based separation of powers can be analytically and practically separated from executive personalism. Hybrid systems such as “assembly-independent” government in Switzerland or “semi-parliamentary” government in Australia can be understood as efforts to reap the benefits of powers separation while avoiding the perils of executive personalism. Cogent arguments for the direct election of a fixed-term president are hard to find, despite the widespread belief that it is inherently more democratic.

In democracies based on elections, representation brings a novel kind of freedom to the fore, one that does not need to be associated with the citizen’s direct action or presence in the place where decisions are made, as is the case in direct democracy. It enlarges the space and meaning of politics in ways that cannot easily be reduced to electoral authorization and consent, and it invariably connects with both the lawmaking institution and the citizens’ voluntary participation, their equal right to define the political direction of their country but also claim, vindicate, and monitor their representatives. This chapter analyzes “political representation” in its actors, components and processes and compared it to other forms (as statistical sample and embodiment) and finally discusses the implications of the mixture of representation and democracy in contemporary politics.

The chapter recharacterises the founding instrument of international organisations as constitutions. They function as a legal basis for the organisation, they contain provisions about the mission of the organisation, about the organs/bodies and their competences, and regulate the relationship between the organisation and those who are legally subjected to it. It traces two waves of theories which have espoused different conceptions of constitution: The first wave revolved around the “small c-constitution” in the more neutral sense. The second wave postulated constitutions “with a capital C” that enshrine the constitutionalist trinity: rule of law, human rights, and democracy. In the current constellation of a global shift of power and ideology, a third theory for constitutions of international organisations, more responsive to the global social question and to the demands of the global south, is emerging. This third theory deserves to be pulled out into the light and should be fleshed out further. It should, on the one hand, not fall back on the small-c constitution and, on the other hand, take on board new principles, notably social transnational solidarity and contestatory democracy. This intellectual contribution can provide a basis for responses to the current pushbacks against international organisations.