The separation of powers is not a theory of mechanical checks and balances or counterforce. Any sufficiently complex organization will have competing interests or sub-units; most do not have a separation of powers. This chapter identifies the conceptual and normative core of the separation of powers as a particular kind of institutionalization of the rule of law. It is an attempt to guarantee a separation of general rules from applications to particular persons by keeping them apart not only in time but also in personnel and institutional space. The chapter further argues that the idea of the separation of powers as articulated by Montesquieu joined that understanding of the rule of law to bodies and estates of the mixed constitution, relying in particular on independent and high-status nobles to defend the law against the political demands of the executive monarch equipped with coercive force. The democratization of the separation of powers in the American founding stripped away that social independence, and left the separation of powers weaker than has generally been noticed. The chapter concludes with considerations of the modern executive branch, and suggests that separation of powers reasoning might need to be applied internally to it.

Governments and regulatory agencies make policy through a range of instruments from soft-law guidelines and executive orders to executive rules with the force of law. Based on her book, Democracy and Executive Power, Susan Rose-Ackerman’s essay highlights the link between cross-country differences in rulemaking practices and underlying constitutional frameworks. Based on the US, the UK, Germany, and France, the chapter illustrates how these countries’ disparate constitutional structures help to explain their divergent rulemaking practices. She stresses the existence of policymaking accountability under the rulemaking provisions of the US APA and its absence from the other cases. Nevertheless, whatever the legal framework, the author argues that bureaucrats should take account of outside input as they implement statutory language to make policy choices. The organization of the executive branch should encourage public input and promote bureaucratic competence. Contemporary pressures may indeed be moving all of these countries toward more accountable procedures – not just to protect individual rights but also to enhance the democratic legitimacy of executive rulemaking.

This chapter provides an overview of the state of the art in constitutional and political theory with regard to the topic of central banks. Central banking, I show, is a highly political domain of policy making that raises thorny and under explored normative questions. I challenge accounts of central banking as involving limited discretion and distributional choices in the pursuit of low inflation, as well as the narrow range of normative questions that such accounts raise. I then ask what to make of central bankers’ political power from a normative perspective. As I argue, some delegation of important decisions to unelected officials is almost unavoidable, often desirable and by itself not undemocratic. I conclude by explaining that we should nonetheless be reluctant to allow for extensive central bank discretion by highlighting six crucial issues that are currently not sufficiently understood: the central bank’s actual level of autonomy from governments, the effectiveness of accountability mechanisms, the effects of depoliticizing money on the broader political system, the effects of democratic insulation on the effectiveness of central banks, the specific practices of deliberation within central banks and the scope for coordination with elected government.

Hobbes posed for modernity what we can think of as the puzzle – even the paradox – of sovereignty. The sovereign of a particular polity is the person or body who wields ultimate authority to make law. It follows, he claimed, that the sovereign is legally unlimited. But for Hobbes, any sovereign is legally constituted in that it must comply with what I call the ‘validity mark’ of sovereignty: Legal change must happen in accordance with the criteria of validity. In addition, there is the ‘fundamental legality mark’: To count as an act of sovereign will, a law must be consistent with the laws of nature, in more contemporary terms with the fundamental legal commitments of the legal order. Hobbes’s idea of sovereignty is thus a legal idea, which contrasts with the figure that haunts politics today, the ‘political idea of sovereignty’. I argue that in order to properly oppose the troubling figure of the political sovereign, one needs to have in place not only both marks of sovereignty, but also a political theory of their value. There is a politics to the legal idea of sovereignty.

Good states want to increase the well-being of their citizens, and act to do this. Insofar as state efforts constrain action for the sake of well-being, however, there is a danger that these constraints will limit liberty in a way that actually undercuts the individual achievement of well-being. If we limit liberty in order to bring us to one desirable state (say, good health) that doesn’t necessarily increase well-being if the loss of liberty in itself diminishes well-being. However, when we consider the three major theories of well-being, hedonism, desire-satisfaction, and objective list theories, we see that there is nothing in the loss of liberty that necessarily diminishes well-being at all. It depends on what that loss brings about. Sometimes liberties make us better off, but it depends on the specific liberty and what it contributes. There is nothing about loss of liberty per se that does us any harm.

Constitutions set out fundamental principles of political morality that bind institutional action and assign strong political rights to individuals. At surface level, the principle of proportionality is a methodological device. It operates as a doctrinal heading under which courts scrutinize state interference with individual liberty and assess the scope of their own authority. According to the orthodox understanding of proportionality, this scrutiny takes the form of balancing rights against public interest, which raises questions about the legitimacy of judicial review. This chapter argues that, contrary to the orthodox view, proportionality is primarily about the normative foundations of constitutional rights and the duty of courts to pursue, through principled legal reasoning, the moral truth about individual rights. On this rival account of proportionality, rights are equality-based moral norms constraining state action and no actual balancing takes place by courts. If we are to take seriously both the idea of fundamental rights and the principle of proportionality, we must abandon the misleading metaphor of balancing and the problems of incommensurability and judicial scepticism to which it leads.

What does it mean to treat people as equals when the legacies of feudalism, religious persecution, authoritarian, paternalistic and oligarchic government have shaped the landscape within which we must construct something better? This question has come to dominate much constitutional practice as well as philosophical inquiry in the past 50 years. The combination of Second Wave Feminism with the continuing struggle for racial equality in the 1970s brought into sharp relief the variety of ways in which people can be treated unequally, while respecting the formalities of constitutional government. In the first part of this chapter, I focus on efforts to reframe the theory and practice of constitutional equality in light of demands for sexual and racial equality. I then show that analytic philosophy has also come to recognise the various non-reducible dimensions of equality in ways that reinforce the claims of critical legal theory, even as philosophers highlight their disconcerting consequences. If equality has multiple irreducible dimensions, conflicts between the legitimate demands of equality are unavoidable features of law and politics, even in the best possible world, and are likely to be particularly painful when set against a background of historical injustice. The chapter concludes with the challenges to democratic constitutionalism, and the scope for constructive responses to those challenges, which the rapprochement between critical and analytic thinking on equality suggests.

The chapter considers unwritten constitutional conventions (CCs). They are best known from Westminster systems, where they are embedded in ordinary jurisprudence. They can also be identified in the United States, France (both in the ancien régime and today), and Norway. In these countries their existence and causal efficacy can be shown by historical and current practices. The aim of the chapter is positive (explanatory), not normative. It discusses how CCs arise and evolve and the mechanisms by which they influence decision-makers.

Climate change, it is often said, is the greatest challenge of our time. As a global phenomenon with a long temporal reach, the impacts of climate change amplify challenges already faced across social, political, economic and ecological spheres. Similarly, constitutional theory is not immune from the impacts of climate change. Yet scholarly engagements between constitutional theory and climate change have thus far been targeted and disparate. This chapter represents an attempt to face up to the challenge of climate change from the perspective of constitutional theory. It takes seriously the discourse of “climate emergency” to argue that emergency is a theoretically defensible framing of the problem. Using the rule of law, rights and federalism as three examples of the challenges that climate change poses for constitutional theory, it highlights some strengths and limitations of existing literatures on these three concepts. Ultimately, it shows that the climate emergency points us to a theory of constitutionalism that builds on these strengths, responds to these limits and provides a path forward for thinking through the role of constitutional theory in a climate-disrupted world.

The political idea of self-government has a natural elaboration, which is that a society is self-governing when it is ruled by the will of the people of that society. A variety of attempts to vindicate popular will conceptions of self-government exist but I argue that they are fatally flawed. In its place, we need a conception of self-government that is deflationary (that is does not rely on the existence of a popular will) but nevertheless quite demanding. I discuss some deflationary accounts of self-government and I argue for an account that emphasizes an egalitarian collective decision-making process but that also recognizes the importance of outcomes. I argue that attention to the conditions necessary to the achievement of self-government of an egalitarian sort is essential to how we are to think of the proper aims of constitutional institutions. We need to attend to how information is disseminated to citizens and how citizens can have the sophistication necessary to understand information. An egalitarian conception of self-government can show how the constitution of a society should be structured so as to achieve equality in these two dimensions of the information system.

How should a constitutional state – one that respects subjects’ basic rights – treat civil disobedients? This chapter presents and critically engages with some of the most prominent answers legal scholars, political theorists, and philosophers have given to this question. On what I call punitive approaches, which I present in section 1, civil disobedience is first and foremost an act of resistance that threatens the constitutional order, and thus a public wrong worthy of punishment. Theorists of civil disobedience have challenged this approach since the 1960s, especially by conceiving of civil disobedience as a kind of dissent, which liberal democratic societies ought to and can ‘make room’ for. Sections 2 and 3 examine these ‘constitutionalizing’ approaches, with section 2 focusing on the case for leniency, and section 3 on the case for broad accommodation. Section 4 examines the costs of constitutionalizing approaches and reclaims the understanding of civil disobedience as a kind of resistance, alongside its uncivil counterparts, that is sometimes justified and even necessary in constitutional democracies.

How much of a role can human dignity play in constitutional law? It can certainly serve as a foundation of some or all of the rights that a constitution comprises, and it may also figure in the specific content of some of these rights. It may do this explicitly or implicitly – implicitly (as in the US Constitution) when dignity’s role is brought out in legal argument rather than the explicit text. Most rights that protect freedom implicate dignity, but so also do social and economic rights in the constitutions that have them. More generally human dignity may serve as a constitutional value, guiding the interpretation of other provisions: it does this, for example, explicitly in the Constitution of South Africa. It may also underpin the constitutional protection of democracy and the franchise, the rule of law, structures of accountability, the importance of citizenship, and the overall orientation of the provisions of the constitution towards respect for the ordinary people of the country that it governs.

This chapter examines the relationship between the administrative state and constitutional values and structures with reference to German and American legal and political theory. It recovers from these intertwined traditions three analytical approaches to the administrative state. The first analytical approach understands the administrative state to implement the constitution. The second understands the administrative state to generate new constitutional structures and values. The third understands the administrative state to displace the constitution with patterns and practices of rule that lie outside of the existing governance framework. These frameworks foreground normative analysis of how the administrative state ought to relate to general democratic principles and the specific constitutional rules that institutionalize them. I argue for a differentiated and developmental understanding of the relationship between democracy, constitution, and administration. The concrete administration of democratic values should allow constitutional rules to shift in light of social and historical context. The administrative state should not be strictly limited by, but rather should facilitate critical interrogation of, the constitution’s current instantiation of democratic values. The administrative state can and should hold the constitution open for the introduction and proliferation of new institutional configurations and forms of public life.

“Cost-benefit analysis” (CBA) denotes the class of qualitative or quantitative methodologies that evaluate governmental policy choices in light of overall well-being. CBA plays a major role in non-constitutional U.S. public law. Executive agencies are required by Presidential order to employ CBA; courts construe ambiguous statutory language as permitting or requiring CBA; and courts also frequently find that administrative agencies’ mistakes in applying CBA are “arbitrary and capricious” under the Administrative Procedure Act. By contrast, CBA plays virtually no role in US constitutional law. It is generally absent not only from constitutional rights doctrine, but also from separation-of-powers and federalism doctrines. If overall well-being indeed plays a significant ethical role in determining the ethical status of governmental choices – which is what would justify the centrality of CBA to non-constitutional U.S. public law – its absence from constitutional law is quite puzzling. This can’t be justified by the premise that constitutional rights “trump” overall well-being (since CBA is absent even from those various parts of constitutional law where no such trumps are in play); nor the Constitution’s text (since the actual practice of the Supreme Court is only loosely textualist); nor original meaning (since the Court’s doctrines, on many questions, are not originalist); nor democratic legitimacy (since the Court could accommodate democratic legitimacy via a deferential version of CBA).