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.

Although they are stable, party constitutions are not immutable. Over the past decade, parties have become increasingly decentralized – especially with respect to leadership selection. Chapter 7 concludes by assessing the implications of the book’s findings for strategically motivated party leaders contemplating institutional change. The chapter also considers similarities and differences with US primaries and discusses how decentralized structures may shape candidate quality. Kernell concludes by discussing avenues for future research, arguing party – as well as electoral – institutions should be accounted for in studies of democratic responsiveness.

Chapter 4 tests the effects of entry costs and decentralized rules on membership. After describing overall membership trends, the chapter tests the effects of party decentralization on both aggregate membership and individual enrollment. In line with the model’s predictions, the empirical analyses reveal that voters are more likely to join decentralized parties, but that this relationship is driven by the preferences of extreme voters. The chapter also examines the effects of membership fees on enrollment and employs two member surveys from Canada to investigate how individuals’ reported reasons for joining relate to their participation in various party activities.

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.

This chapter attempts two tasks, conceptual and normative. First, I argue that constitutions need not include rights as a matter of logic: it is possible for a set of laws and conventions to qualify as a genuine constitution of a state or legal system, even if they do not contain any rights – or almost none. Nonetheless, secondly, I argue that rights-free constitutions miss out on something valuable: it is hard to see non-rights constitutions as intended to serve citizens qua individuals. In particular, I argue that there are strong reasons in favour of constitutional rights on both natural rights and democratic grounds. I end by explaining the way in which rights function as limits on government power: we will see that they need not be the limits that constitutionalists endorse.

Summary and conclusions