The US Constitution committed to equality in the Thirteenth, Fourteenth, and Fifteenth Amendments following the Civil War. Legislators and judges quickly confronted the question of what these new provisions might mean for private actors. The Radical Republicans aimed to bring the commitment to equal protection into private spaces, propagating republican discourses about the practical requirements of equal citizenship and the potential duties of private actors. However, the Supreme Court soon reached its own countervailing conclusion that only state actors, not private actors, gained duties from the Reconstruction Amendments. While this latter understanding remained firm, private actors effectively gained obligations to equality under the Civil Rights Act of 1964 and later court decisions working around the initial cabining of constitutional equality. Later debates evince a revival of republican-inflected language and arguments for something like horizontal application, even while the country’s jurists viewed such an extension of rights as basically impossible. Several other episodes in constitutional politics, both at the national and state levels, would continue to revisit this question across a range of issue areas.

Citing contemporary issues, this introduction situates horizontal application as one potential response to political-legal questions involving private actors. It makes the case for renewed scholarly attention to horizontal application as an increasingly common practice in constitutional politics. More specifically, examining horizontal application through the lens of republican political theory uncovers new significance in the discourses surrounding this constitutional practice. This theoretical perspective also elucidates how horizontal application is different from traditional constitutional understandings. After introducing the book’s republican framework, Chapter 1 explains the rationale underlying the choice of contexts examined in subsequent chapters. It concludes with an explanation of the stakes, as well as the potential benefits and drawbacks of horizontal application considered in the following chapters. Finally, it previews the concluding chapter’s argument that horizontal application may be further supported with certain political and institutional adjustments to make this practice even more republican.

While the traditional vertical understanding of rights remains rooted in an older liberalism, the horizontal model possesses affinities with republican thought. This chapter makes these connections between constitutional practice and some of the core texts in the history of political thought. In addition to different understandings of the relationship between spheres, or the individual and community, liberal and republican thought generally conceive of liberty differently, a distinction that also maps onto the vertical and horizontal models in important ways. Rights in a horizontal understanding take on a new significance as more than mere rights, but ends as well, that potentially implicate the polity as a whole. Thus, horizontal application gives rise to new calls for parity between public and private spaces, which, in turn, amounts to a new source for understanding the duties of private actors. Such concepts as the common good and duty, integral to republican thought, come to the fore and offer a baseline for conceptualizing the parity and duties to which horizontal application gives rise. The chapter illustrates how these republican concepts occur in the context of actual cases and larger constitutional discourses, drawing examples from Germany, India, and South Africa.

How was the British imperial state transformed from an ancien régime in 1819 to a liberal one that depended upon a new science of government?

Since the early 1930s, a broad acceptance of the need for social planning had been growing in Britain. Neurath naturally became involved in debates on this matter, not only with British and American scholars (C. H. Waddington and James Burnham) but with fellow Central European émigrés in the UK, Karl Mannheim and Friedrich Hayek. Neurath and Mannheim concurred on the possibility of ‘planning for freedom’, whereas Hayek feared that any socialist planning would lead inevitably to totalitarianism. Neurath took issue with this, not least in his reading of Hayek’s The Road to Serfdom, which can be reconstructed from Neurath’s copious notes in his own copy. Neurath’s ideas of the 1920s for a socialized ‘economy in kind’ were moderated by his situation in Britain, with its democratic ‘muddle’ of the 1940s. By contextualizing Neurath’s views in relation to other prominent figures of the era, we point out what made him unique among them.

What does it mean “to tolerate” in a post-Christian and post-secular state? This chapter argues that antecedents of contemporary conflicts over diversity in Europe can be found in early modernity, specifically in early modern practices of toleration, which impacted on both the belonging and the visibility of minorities. New forms of intolerance pertain to the position of religious, ethnoreligious, and sexual minorities in public life, echoing the concerns of the public visibility of minorities inhering in historical Christendom. The political articulation of certain groups as “other” to “the nation” is increasingly mediated through constitutional repertoires, such as constitutional revision and amendments, developments in the hermeneutics of constitutional concepts, or pseudo-constitutional behaviour. This chapter introduces the main themes: tolerance and intolerance, constitutionalism, secularisation, and their significance across the liberal–illiberal divide.

This concluding chapter reflects on the phenomenon of constitutional intolerance, its many faces, its entanglement in histories of toleration, and its implications for discourses on constitutionalism, illiberalism, and secularisation. It argues that the default lines have shifted from secularisation to fundamental questions about the future of constitutional democracy in Europe, considering the fundamental aspects of constitutional intolerance: the articulation of otherness vis-à-vis the political community and the sanctioning of this othering in public space. The conclusion also considers the rise of “cynical democracy” in the instrumental use of constitutional repertoires to further partisan interests, as well as the right wing tendency towards the overrepresentation of formal-procedural legalism, an attachment of legitimacy to legality, and a weakening of the capacity for normative reflection in the highest courts.

The conclusion reviews Schopenhauer’s conception of politics as the management of human strife. For Schopenhauer, politics was both indispensable and insufficient: rational political coordination can prevent society from descending into a chaos of mutual aggression, but because rationality itself is limited and metaphysically subordinate, it cannot redeem a fundamentally broken world. Schopenhauer’s attitudes – a sincere sensitivity to human and animal suffering, an uncompromising commitment to frank philosophizing, but also a fearful antidemocratic and anti-emancipatory view of society – place him outside the major ideologies of the modern age, such as liberalism, libertarianism, progressivism, and conservatism.

Stefanie Markovits’ chapter thinks about counting and accountability, and how they inform literary representations of the military man, one of the most visible of war’s outcomes in mid-Victorian Britain. Markovits reflects on this period as one which saw ‘the rise of statistics as a discipline of social science and a method of statecraft in Britain’, and with it the growing need for accountability in public affairs. The figure of the soldier is both hero and statistic, individual and number, in a period where fiction, philosophy, and popular commentary, were preoccupied with how individuals realised their fully individualised potential. The soldier’s cultural and political potency is enabled because his being is aligned with the numbers that account for him. In the work of Tennyson, Harriet Martineau, and Dickens we see how ‘the mid-century soldier becomes such a potent figure precisely because his “type” aligns so closely with numbers’.

The rule of law, an abstract concept heavily debated among legal scholars and social scientists, has in the past few decades acquired a nearly universal appeal, as democracies, autocracies, and oligarchies all claim to uphold it. Repeatedly, Xi and the leaders of the Chinese Communist Party (CCP) have pledged to build a “rule-of-law country.” But when the ruling elites of a one-party authoritarian state allege commitment to the rule of law, what do they really mean? How is it different from the Western concepts of the rule of law, especially the “thick” version of it that has been closely tied to liberal democratic values? What are the key features of the “rule of law with Chinese characteristics”? And how will it impact the international legal order? Applying a transnational legal ordering framework, this chapter attempts some answers. It traces the development of the Chinese legal system and the evolving rule-of-law debates in China and then explores how China might impact the international legal order.

This chapter canvasses coalitions for and against pluralism that emerged with the foundation of the Republic of Turkey. It shows that while the early nation-builders pursued a unitary, ethno-nationalist project, Kemalism also entailed an “embedded liberalism” inherited from late Ottoman modernization, including resources for eventual democratization. Throughout the twentieth century, political actors sought to mobilize these resources toward pluralizing the political system across a series of critical junctures (e.g., the 1920s’ cultural revolution; the 1950 transition to multiparty democracy; successive coups in 1960, 1971, and 1980; and a 1997 “postmodern coup.”) Across these junctures, the chapter argues, there were only two pronounced periods of secularist/Islamist cleavages. More often, conflict was driven by significant, cross-camp cooperation and intra-camp rivalry. Tracing when and why pluralizing and anti-pluralist alignments succeeded or failed, the chapter captures a key dynamic: the installation of an ethno(-religious nationalist project – the Turkish-Islamic Synthesis (TIS) – as national project, even as ideas and actors invested in pluralization continued to mobilize.

Chapter 10 explores democracy versus autocracy. It offers a frequency-based fitness analysis of the political regimes in the world, demonstrating the superior fitness of democracy, represented by the United States in time and place, but also revealing the resilience of non-democratic forms of government, represented by China. Countering the larger historical trend, democracy has retreated and autocracy has gained in recent years. It is difficult to tell whether this is a temporary setback for democracy or the start of a longer trend. Evolution does not assume constant progress, so the chapter dives deeper into the performance criterion for competing political regimes by peeling off the labels and examining different components of a political regime. In addition, the chapter offers a discussion of how East Asians have lived with the liberal international order, which most current American and Western leaders view as central to their fight against autocracy.

The label “cultural nationalist,” deployed by David Kimble in 1963 continues to be used by scholars to describe early Gold Coast intellectuals. Kimble and others like Kweku Larbi Korang assumed that nationalism in the Gold Coast was a continuum of anti-colonial “resentment and criticism.” Contrary to the theme of the early twentieth century as a period of cultural nationalism and of opposition to colonialism, it was a period of constructive criticism of an inchoate colonial system and advocacy for synthesis of local customs within a liberal imperial frame. Regarding the intellectuals as anti-colonial cultural nationalists proved difficult because of their apparent pro imperial statements and actions. Critics disparaged the intellectuals as motivated by self-preservation, blindly pro-colonial, deluded, or traitorous to their culture. So-called cultural nationalists can be more properly understood by not assuming Kimble’s unchanging problematic and recognising the British presence then, now homogenized as “colonialism,” as something less cogent.

This chapter explores a hardy perennial – the meaning of the American Civil War – from the standpoints of the nineteenth, twentieth, and twenty-first centuries. It evaluates historian David Potter’s 1968 assertion that, from an international perspective, the defeat of the American South’s bid for independent nationhood and the emancipation of enslaved Blacks, the American Civil War resulted in an unprecedented marriage of liberalism and nationalism, a union unique in the formation of nineteenth-century nation-states. This marriage not only gave liberalism a strength it might otherwise have lacked but also lent nationalism a democratic legitimacy that it may not otherwise have deserved. It also explores how the end of the Cold War and the emergence of multiple decentralizing technologies (cell phones, social media, the internet, etc.) and other polarizing forces which have raised serious questions about whether a more than 150-year-old marriage can survive the centrifugal temptations of the new century.

Louis Hartz’s triumphalist manifesto for an enduring American liberal tradition, The Liberal Tradition in America (1955), certainly did not underestimate the role of ideology in American history, but it misinterpreted the origins of the nation’s prevailing ideologies. Hartz’s underlying argument that all American ideologies emerged from a liberal core contained a kernel of truth. But the terrain of American politics reveals that its political ideologies have been more complex than Hartz comprehended. Hartz’s fundamental misunderstanding of the ideology of the founders led him into problems in defining the liberalism that flourished in American life. Hartz’s insistence on explicating American liberalism ironically produced an original understanding of American conservatism, whether of southern slaveholders trying to fashion Tory conservatism or twentieth-century businessmen trying to insist that conservativism was consistent with the creative destruction that defines capitalism.