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).

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.