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.

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.