Guarantor institutions (such as electoral commissions and anti-corruption watchdogs, which supposedly comprise the so-called ‘fourth’ or ‘integrity’ branch of the state) are increasingly of interest to constitutional scholars. In a given political context, a guarantor institution is a tailor-made constitutional institution, vested with material as well as expressive capacities, whose function is to provide a credible and enduring guarantee to a specific non-self-enforcing constitutional norm (or any aspect thereof). Arguing that guarantor institutions are more trustee-like than agent-like in character, this chapter defends the claim that the design of any guarantor institutions should seek to ensure that it has: (i) sufficient expertise and capacity to perform its functions effectively; (ii) sufficient independence from political, economic, or social actors with an interest in frustrating the relevant norm it is meant to guarantee; and (iii) sufficient accountability to bodies with an interest in upholding the relevant norm.

States exhibit various commitments problems in creating international legal rules and institutions. International law is needed to solve collective action problems such as climate change, manage common pool resources, maintain peace, and realize justice. The paradox of commitment explains some of these commitment problems. States would benefit from more effective rules which reduce conflict, enable cooperation and coordination, and resolve collective action problems, but they are reluctant to restrict their own freedom in the name of those rules and the institutions tasked with interpreting and enforcing them. Constitutionalism is available as a language and process which can inform mechanisms for reducing states’ commitment problems. Drawing on legal philosophy, constitutional theory, and empirical social science, I propose to consider a form of global constitutionalism which encourages states to pre-commit to certain basic principles of international cooperation, institutions, and decision-making procedures. Without constitutional rules, international politics falls prey to power politics, vulnerable states are swept up by the brute force and inertia of the big military and economic powers, rule of law protections for states and individuals are weak, human security is at risk, and the threat of violence remains ubiquitous as the primary means of structuring the interaction among states.

This chapter examines the constitutional role of parties and partisanship. We begin by sketching a conception of constitutionalism as a mechanism for finding an equilibrium between different social interests. Appealing as this ideal of moderation has long been for many, we highlight its limits as a basis for democracy and progressive change. A desirable constitutional model must make space for political conflict and immoderation, and as we go on to argue, partisans and the associations they form are an important foundation for this. The final section connects these observations to the contemporary political world, in particular to the state of parties today and to some of the misplaced anxieties about ‘polarisation’ they give rise to.

This chapter argues that the relationship between administrative law and constitutional law is significant and that this relationship sheds light on the nature of both areas of law. The chapter develops the idea that administrative law regulates delegates and constitutional law regulates delegators. This idea, the chapter argues, helps us make sense of the nature and content of administrative law, as well as how it relates to constitutional law.

Populism in relation to constitutionalism is a widely discussed and critical, topic. In the literature on the phenomenon, there is a prevalence to identify populism as antithetical to constitutional democracy and as eroding the idea and fundamentals of constitutionalism. However, as this chapter will show, much depends on the definitions offered of populism and constitutionalism, and the analytical commitment to study both as historical phenomena with important contextual differences. As I will argue in this chapter, constitutionalism as such is a contested phenomenon, and populism frequently takes up different forms of critique on the predominant legal understanding of constitutionalism. Furthermore, populism is a phenomenon that manifests itself in different ways, displaying diverse guises depending on distinctive ideological position (left- or rightwing), but equally showing variety in terms of positioning regarding characteristic issues, such as sovereignty, the definition of the political community, or relations to constituent power.

There are two practices of constitutional review: the diffuse review by the judiciary with supreme courts as the final appellate body in common law countries and the concentrated review by constitutional courts outside the ordinary judiciary in civil law countries. Though we observe a tendency towards a convergence of diffuse and concentrated review, there are still differences. In this chapter, the comparative merits and problems of concentrated versus diffuse review are evaluated. In order to compare the types of apex courts, a normative concept of constitutional review is developed. According to this concept, the most important precondition for legitimate and effective constitutional review is the difference between judicial and political decision-making. Judges who are capable of respecting this difference, enhance social integration by establishing a specific mechanism to correct procedural and substantive injustices. When evaluated by this standard, neither supreme nor constitutional courts are superior. Rather, the problem of both practices concerns a gradual process of a judicialization of politics. More and more political questions are decided by apex courts with constitutional review power, thereby reducing political alternatives. In concluding, a division of labor between judges and legislators is suggested that promises legitimate and effective constitutional review enriching democratic governance.

Referendums trigger both enthusiasm and scepticism among constitutional theorists. The positive case for the referendum emphasises its ability to give the people a consequential voice on salient decisions, its capacity to break political deadlock and enrich the political agenda, its educational civic role, as well its anti-establishment and even radically democratic potential. The negative case, conversely, focuses on the referendum’s divisiveness, propensity to be manipulated by elites, and tendency to produce ill-informed decisions. Between these two poles are various attempts to evaluate the referendum as a complement to rather than replacement for representative institutions, and to stipulate conditions for its proper institutionalisation. The spread of sophisticated disinformation campaigns and the growing interest in deliberative innovations such as mini-publics also raise new questions about referendum design, safeguards, and legitimacy. This chapter takes seriously the democratic case for the use of referendums while revisiting three areas of concern: the ambiguous place of referendums within democratic theory, including its relationship to direct, representative, and deliberative democracy; the complex interplay between referendums as majoritarian tools and minority rights; and the novel opportunities and distinct challenges to informed voter consent in the digital era, not least disinformation and fake news.

It is common ground that a bill of constitutional rights regulates the relationship between individual and the state. Fundamental rights create negative obligations for the state – duties not to interfere with life, liberty, conscience, speech, privacy etc. To what extent, if at all, though, do fundamental rights also have a bearing on relations between individuals? Can they also obligate the state to actively promote liberty in society? Are they focused merely on state abuse but silent on social inequality – or can they be mobilized as vehicles for social justice? Undeniably, constitutionally-sensitive conflicts routinely arise, e.g., between capital and labour; between financial service providers and vulnerable consumers; between vulnerable groups themselves, and so on. However, the “constitutionalisation” of private law relationships has not always been seen as an unmixed blessing. A first concern is that the expansion of substantive constitutional norms beyond the negative basic liberties eliminates the domain of private law and private autonomy that is an essential characteristic of liberal societies. A second concern is that constitutionalisation transfers substantial regulatory authority from democratic legislatures to constitutional courts. This chapter argues that that neither of these two concerns necessarily arises in connection with the doctrine of (indirect) horizontal effect.

Rather than occasions for law’s standstill in face of a political decision, emergencies are opportunities for legal, institutional and normative mobilization. The entry lays out the field’s basic areas of concern: the theoretical problem of containment of threats within a particular legal and political order, and the practical problems of definitions, authorizations, jurisdiction and temporality. If indeed the time frames of emergency are long and flexible, multiple and overlapping rather than “exceptional”, then law in emergencies is a constantly shifting space of opportunity in which normatively charged political projects can be manifested. To design legal and constitutional mechanisms that will better respond to threats, we should shift away from theories that perpetuate a static dichotomy between “norm” and “exception”, and study emergency as a dynamic field of legal and normative mobilization.

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.