Chapter 6 explores five outlier cases, called “The Unfortunate Five,” in which the US Supreme Court rejected landowners’ challenges to land use and environmental regulations despite the Court’s strong protection of private property rights against regulations generally. These five cases have one factor in common: the developers’ plans to build affordable housing. After exploring the potential that Supreme Court justices are motivated by explicit race and class biases, the chapter delves into the potential for implicit bias to explain why these cases deviate from the norm: the justices believe that they are protecting the private property interests of neighboring landowners against unwanted affordable housing developments. Strategies are proposed, based on a number of empirical studies, for convincing courts that affordable housing does not pose a threat to the property values of nearby landowners and that, therefore, many government policies reflect an unconstitutional, irrational prejudice against low-income people of color who need affordable housing and the developers who seek to build it.

Chapter One presents a normative theory of judicial review that relies on distinctions among strong, weak, and deferential judicial review. In a system of strong review, judicial decisions applying the Constitution are not subject to legislative override. In a system of weak review, judicial decisions are subject to legislative override. The chapter defends three main normative arguments. First, courts should apply strong judicial review in election-law cases to enhance the quality of representative democracy and ensure that every citizen has an equally effective voice in choosing our elected legislators. Second, courts should apply weak judicial review for most individual rights claims. Courts can provide robust protection for individual rights by applying federal statutes and international human rights treaties, instead of applying the Constitution, as the primary source of protection for individual rights. Third, courts should apply deferential review for claims involving federalism-based limits on Congress’s legislative powers. To protect state autonomy, the Court should exercise self-restraint to curb judicial violations of the Tenth Amendment.

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.

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.

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.

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.

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.

In this chapter, I first argue that the key function that parties perform, when functioning as they ought to function, is to facilitate a mutually responsive relationship between public policy and popular opinion by acting as an intermediary between a state and its people. They perform this intermediary function in a unique manner, because of their bi-directionality and their plenary character. When they perform this function effectively, political parties significantly reduce four key information and transaction costs that would otherwise make democratic governance impossible: political participation costs, voters’ information costs, policy packaging costs, and ally prediction costs. I further identify four normative principles in relation to political parties: viz, the purposive autonomy principle, the party system optimality principle, the party-state separation principle, and the ‘anti-faction principle. These political principles are drawn from the value of democracy itself. As such, they should – alongside other relevant political and constitutional norms – inform fundamental constitutional design choices.

Gary Jacobsohn’s work on constitutional identity was an early exemplar of constitutional theory, testing and refining broad theoretical claims against a deep analysis of constitutional developments in diverse constitutional systems. One aspect of Jacobsohn’s rich and multi-textured theory is the claim that constitutional identity constrains amendment powers. This chapter explores that claim through the lens of the two seminal Irish cases with which Jacobsohn engages. These cases, while rejecting unamendability, illustrate Jacobsohn’s central distinction between generic constitutional identity and particular constitutional identity. The chapter argues that while Jacobsohn is correct to claim that generic constitutional identity – conformity to the moral values of constitutionalism – constrains constitutional amendment, it is problematic to assign moral salience to a country’s distinctive constitutional identity. The chapter interprets Jacobsohn’s particular constitutional identity not as a substantive constraint on amendment but rather as an argumentative frame for debate about the legitimacy of amendments. This argumentative frame, however, lacks a sound normative basis and encourages an excessive focus on the constitutional past, diminishing the potential of constitutional amendment as a site of democratic deliberation.

This chapter provides an introduction and overview to the idea of the collaborative constitution, sketching out the central claim that protecting rights is a collaborative enterprise between all three branches of government, where they each play distinct roles, whilst working together in constitutional partnership. This Introduction also clarifies the constitutional methodology employed in the book, namely, a methodology which connects theory with practice, and analyses the UK constitutional order in comparative context.