The witholding of equal public recognition of national, cultural and language identity often causes severe anguish to sub-state peoples and sometimes leads to war. For this reason, political philosophy has an important responsibility to think through the moral grounds and the appropriate means of recognition. This chapter draws a moral map of the recognitional debate, outlining three normative camps: nonrecognition, monorecognition, and recognitional pluralism. I argue for recognitional pluralism, in two steps. The first step establishes, contra nonrecognition, that nations, cultures and languages are recognition-worthy, and that this is so for two reasons: they give people access to cultural life-worlds, and they are sources of dignity. The second step builds the case for a pluralistic means of according public recognition. To do so, I argue, against monorecognition, that egalitarian recognition of life-world access and dignity is to be the driving principle. Within the pluralist camp, I argue for the principle of equal services, which implies that the state accords comparable cultural services to the cultural groups that share a state or territory. Examples of this can be found in equal language rights regimes, egalitarian public holiday systems, as well as in multinational federalism.

This chapter focuses not on the possible content of a Bill of Rights, such as whether it should contain social and economic rights or only civil and political rights, but on the form any such Bill needs to take to be legitimate in a manner congruent with the moral norms of equal concern and respect underlying both rights and democracy. It explores four conceptions of Bills of Rights and the different ways they relate to democratic theory and practice. I start with the view of a Bill of Rights as distinct from normal legislation and that is ultimately the responsibility of the courts to defend. I distinguish between substantive and procedural accounts, in which the first focuses on upholding the rights necessary to ensure the outputs of democratic decisions reflect democratic norms whereas the second seeks to uphold the rights required for a due democratic process. I then turn to legislated rights and the role of Parliamentary Bills of Rights. Finally, I examine the role of democratic constitutional politics as a means for justifying and legitimising such rights instruments, be they upheld by legislatures or courts.

Freedom in a choice does not just requires the absence of interference by another, whether with a preferred option or with any option; it requires the absence of domination: the absence of vulnerability to a power of interference on the part of another. Law and only law can guard citizens equally against the domination of others by identifying a common set of basic liberties and by providing intuitively adequate resourcing and protection against others to enable people to exercise those choices. But the state that imposes law will itself dominate all or some of its citizens if it is not subjected to a system of intuitively adequate, democratic control over its imposition of law. Such a system should enable people to shape the framework of government, to impose operational checks, constitutional and contestatory, on officials in government, and to appoint or oversee the appointment of such authorities.

Despite being nearly universally recognised as a virtue, judicial independence has been challenged in almost all parts of the world. Some commentators even consider it to be so open to differing interpretations as to be a useless concept, that should be unpacked to its smaller components to be studied meaningfully. We are less cynical about the idea. According to our theory, judicial independence exists where powerful actors are unable or unwilling to inappropriately interfere with the workings of the judiciary. Judicial independence is thus a relational concept and always results from the interplay between the capacity and willingness of powerful actors to inappropriately interfere with the judiciary, and the capacity and willingness of judicial actors and their allies to withstand such actions. We distinguish three levels of judicial independence: de jure institutional independence, de facto institutional independence, and decisional independence. Courts are thus independent when powerful actors do not consistently impose their preferences in disputes they have a stake in, either by capturing the courts through formal changes of laws governing the judiciary, through rigging these laws in their favour, or by skewing judicial decision-making. By contrast, a dependent judiciary is the one that is captured, rigged, or skewed.

This paper discusses the various ways that deliberative democratic theory intervenes in debates about constitutional theory. After a brief introduction, Section II begins with foundational views that employ deliberation as a framework to reconstruct constitutionalism as such. In Section III I canvas theories that delineating how we ought to be deliberating about constitutions within established liberal democratic orders. This moves the discussion from a constituent function of deliberation to a constituted function and role. This section pays special attention to public reason arguments. The question of how we should be deliberating about constitutional essentials naturally leads to the question of who should be deliberating about constitutional essentials in Section IV. There are three natural answers to this question: courts, legislatures, and citizens. Within deliberative democracy theory the answer is often a combination of these three but there are important variations. In Section V, I take a deeper dive into citizen participation in deliberative constitutionalism. I argue that deliberative constitutionalism offers a view of democratic constitutionalism that differs from political and popular constitutionalism both of which are focused on reducing the power of courts vis-à-vis legislative institutions rather than enhancing the participatory power of citizens.

What makes a constitution legitimate? Models grounded in consent, right procedure, or necessary and sufficient justice conditions capture powerful intuitions, but face equally powerful problems: These models generate paradoxes and infinite regress, and their static character ignores legitimacy’s dynamism. Moreover, debates around constitutional interpretation – originalism, living tree, or common good oriented - demonstrate the permanent space between a (constitutional) rule and its application. These debates leave mysterious how legitimacy, once in a constitution, ever gets out. But these issues resolve if we understand legitimacy as something functional, not substantive. Like a currency, I suggest, it can be drawn from diverse (normative and symbolic) sources, banked (in constitutions), and later withdrawn and spent (on political endeavours). This model honours normative intuitions, while escaping puzzles and paradoxes. Moreover, since a constitution’s legitimacy ‘holdings’ can fluctuate with political skill and circumstance, this model capture’s legitimacy’s dynamism. Such a functional model bridges the empirical and normative study of legitimacy, and it may deepen empirical understanding of normativity’s role in regime stability and constitutional change.

Consociationalism is a distinct regime-type that is designed to deal with the problem of deep diversity, that is, a society divided by differences that are salient enough to consistently polarise groups over time in ways that makes governing together difficult. The defining goal of consociational regimes is social and political stability in a manner consistent with democratic values. The unifying feature of the various measures advocated to achieve that goal is the protection of salient social groups (or segments) from blunt majority rule, especially in areas of particular concern for those groups. But can consociational regimes become sufficiently stable over time? The way in which recognition tends to be prioritised in consociations above other democratic values, we argue, results in democratic deficits that provide resources to actors who would seek to challenge the regime from within. This observation serves as the basis of our claim that consociations are inherently unstable in the sense that they face the permanent risk of evolving into regimes dominated by the majority or into a spiral of progressive disintegration. Without making prescriptions, this conclusion leads us to briefly consider an alternative to consociationalism as a solution to the problem of deep diversity, namely centripetalism.

To examine prerogative is to reflect on how constitutions recast and reshape the story of their own creation. I argue that the term ‘prerogative’ specifies the rudimentary command function that underpins all constitutional order - or, more precisely, what remains of that command function once institutions of law and government have developed and stabilised around it. So understood, the central question becomes how best to understand the place of prerogative within the order of rules that the constitution provides. One answer presupposes the existence of a ‘sovereign prerogative’, that is, an ‘original’ authority inherent to government that is prior to and in some sense superior to law. I show how this model fails analytically and normatively. Another answer constructs prerogative as a set of general executive powers that are derived, enumerated and limited (‘constitutional prerogative’). This second model brings conflicting sources of normative authority into conceptual alignment. While this configuration does much to prohibit recourse to open-ended discretion - so reducing the likelihood of arbitrariness and disruption that tends to result from its exercise - it does not in itself prevent the rise of a prerogative disposition among ruling elites and their client groups.

This chapter tracks the theory and the development of the concept of the material constitution. Historically, it identifies three theoretical attempts at defining the material basis of the constitutional order: materialist political philosophy (mostly, Marx), 20th Century legal institutionalism (Schmitt and Mortati), and societal constitutionalism (Teubner). The following sections capitalise on this historical background and provide a sketch for the contemporary conception of the material constitution. The focus here is on how to make order and the material constitution is understood as a set of political, economic, and legal practices that are organised into some form of political unity with the intention of pursuing certain fundamental aims. The last section of the chapter applies this contemporary conception to constitutional issues such as constitutional identity and change.

Constitutions are, above all, a compact among equals: they represent a contract that aims to include everyone, on an equal footing. This fact is explicitly reflected in a majority of constitutions, which appear openly committed to a principle of legal equality. The problem is that, from its very origins, this egalitarian constitutional ideal encountered enormous difficulties that prevented it from becoming ae reality in practice. Almost every area covered by the equality principle - whether we refer to the rights of racial, sexual or ethnic minorities, or to the workers’ rights – was transformed into a space for legal and political dispute. This chapter explores a few of those “disputed territories”, including conflicts around social rights; gender inequality; and indigenous rights. In this way, this text pays attention to the continuous, unfinished battle between the constitutional ideal of equality and a political practice systematically oriented to defy it.

This chapter focuses on the promises and drawbacks of adapting constitutionalism to institutions designed to promote regional integration in the economic sphere. It argues that while constitutional mechanisms can enhance cooperation by locking in states’ commitments, the fact that regional organizations are tasked with specific policy ends creates a significant departure from the fundamental principles that constitutionalism is traditionally prized for advancing. The chapter develops this argument primarily with reference to the European Union, while noting the limits of generalizing from that case. It argues that the EU’s supranational legal order amplifies a logic germane to any constitutional system, but which has often been overlooked by political theorists. Alongside their better-know functions of facilitating democratic self-rule and safeguarding individual freedom, constitutional systems are also expected to enable the effective exercise of public power. Insofar as regional institutions are designed to help states govern more effectively, particularly in the economic domain, they advance this neglected but essential rationale of constitutional rule. The chapter situates this argument in the context of the burgeoning literature on the non-democratic uses of constitutionalism, showing that constitutional mechanisms can be configured to advance different ends, not all of them emancipatory.

Regulation is a pervasive feature of contemporary capitalism. How to ensure, in democratic states, that those to whom regulatory power and functions have has been delegated act in line with constitutional norms and values is a perennial, and much explored, question. This chapter seeks to do two things: first to set out a framework for analysing regulatory systems, and second, to use that framework to explore how constitutional actors seek to regulate, or more specifically to constitutionalise, the regulators they have created. In using a regulatory framework to analyse this element of constitutional systems, it thus proposes to ‘flip’ the usual perspective, and not just look (down) at regulatory systems from a constitutional perspective, but also look (up) at constitutions from a regulatory perspective. This flipped perspective will be used to conceptualise constitutions not from the starting point of established constitutional, legal or political theory but from a particular regulatory theory, that of decentred or polycentric regulation, and to explore the different ways in which ‘regulators are regulated’ through the interplay of the constitutional governance system with the regulatory systems it creates: through the goals and values each seeks to pursue, the techniques, organisations and individuals through which each acts, the particular sets of ideas or cognitive and epistemological frameworks those actors bring, and with a continual need both for, and in constant pursuit of, trust and legitimacy in the eyes of those on whose behalf they purport to govern.

Constitution-making acts of persons and institutions are the primary objects of constitutional interpretation. The primary result of constitutional interpretation is an account of the meaning of those acts. This chapter offers an explanation of the prodigious creativity of constitutional courts that involves two elements. First, we all equivocate concerning the meaning of a constitution, treating it variously (or at the same time) as the signification of constitution-making acts, and/or as the significance of the constitution as a framework of governance. Secondly, creativity results from interpreters’ ways of resolving the tension between the rule of constitutional law (that is, adherence to a rule-governed framework of governance) and the demands of constitutional justice (that is, the array of principles of justice in governance that the constitution ought to secure). The boundaries of constitutional interpretation are put in question by the equivocation between meaning as significance and meaning as signification, and by the tension between the rule of constitutional law and the demands of constitutional justice.