Chapter 5 traces the rise of arguments for ‘modernising the constitution’. While the 1970s left repeatedly engaged in British constitutional debates, their arguments were rarely conceived in terms of modernisation. However, the challenge of Thatcher’s rule, along Scottish nationalism, perceptions of sociological change, European integration, and geopolitical developments led to the ascendancy of new constitutional reforms (such as a bill of rights and devolution) in agendas for ‘modern socialism’. A pivotal development was the creation of the campaign group Charter 88; also important was the spreading New Left argument that European continental structures were more ‘modern’ than the ‘Westminster Model’. The political strength of constitutional modernisation arguments peaked in the early 1990s, under the leadership of John Smith and with public support from rising stars Blair and Brown. Momentum for reform later stalled under Blair. Nevertheless, Scottish and Welsh devolution and a Human Rights Act were locked into Labour’s platform by 1997, facilitating one of the most disruptive periods of British constitutional change in the contemporary era.

Data-related technology advancements have brought about a paradigm shift and have created a data-driven economy that requires a legal framework to regulate the economic behavior of its participants – both companies and consumers. However, legislators’ hands-off attitude, intended to promote a ‘free’ and unregulated Internet, has not realized the original internet dream of a borderless and radically democratic space. Some observers have even suggested that the Internet is beyond the sovereignty of governments, or even a fifth dimension, not subject to the same regulation as other domains of human activities.1 This laissez-faire approach to the digital economy has created a lawless arena where the strong prevail. These powerful participants also dominate in terms of data – the Internet’s most valuable asset – and through their actions, system leaders and silo providers are in fact hindering the free flow of information by ‘hoarding’ data (or, as the Commission formulated it, ‘data lock-in’).2 These barriers seem destined to increase in the future.

The question of what kind of recognition populism supplies to the people connects to the question of how populists understand and practice “democracy.” This chapter disputes the widespread assumption that populism is committed to a procedural conception of democracy, which rejects all substantive standards and constraints on popular decision-making. It argues that populism cannot be regarded as essentially democratic, while it is only against liberal constitutionalism. Indeed, from the perspective of democratic respect, the fault with populism is not that its understanding of democracy lacks substantive constraints on popular decision-making, but that it fails to appreciate the procedural value of democracy. The populist understanding of democracy fails to appreciate the importance of “procedural respect,” while it promotes “outcome respect” and “identification recognition.” However, outcome respect as a form of correspondence between public policy and people’s opinions is incompatible with the circumstance of disagreement, and populist leader-people identification has equally anti-pluralist implications. Finally, populism has a very limited understanding of democratic procedures, focusing on aggregative mechanisms such as referendums and elections, while it excludes a more expansive understanding of democracy, which includes free opinion-formation, activism, and deliberation in civil and political society.

Zimbabwe’s 1995 general election was conducted in the context of a ferocious debate on the country’s controversial constitution and a disastrous economic structural adjustment programme (ESAP). Zanu PF had already won a parliamentary majority well before votes were cast. It had the advantage of having thirty presidentially appointed MPs and fifty-five of its sitting MPs stood unopposed. The national voters’ register remained in a complete shambles. A weak and divided political opposition seemed to be a permanent feature in the country. Zanu PF neither accepted nor tolerated political opponents, believing it had entitlement to be in power forever. Zanu PF participation in the anti-colonial liberation war was a major justification for supressing political opposition parties. Zanu PF’s mindset was, by hook or crook, de jure or de facto bent on achieving a one-party state. The hallmarks of the 1995 elections were the controversial constitution, weak opposition, Zanu PF’s manipulation, and bending and breaking of election rules, including its lack of political will to develop a viable voters’ roll. The economic structural adjustment programme had already ruined peoples’ livelihoods by the mid-1990s. The source of violence emanated from Zanu PF’s non-acceptance and intolerance of competitive election contests, including within its own leadership selection processes.

The selection of the arbitral tribunal is likely the most critical step in the arbitral process. Arbitrators adjudicate substantive and procedural issues, and the quality of the arbitrators will be outcome determinative of the parties’ dispute and, ultimately, the enforceability of the arbitral award. This chapter provides guidance on best practices regarding the appointment of arbitrators in international commercial and investor-State arbitration. It discusses the parameters of the parties’ flexibility and autonomy in choosing the configuration of their tribunal and the identity of their arbitrators, as well as the various factors that parties should consider in vetting potential arbitrator candidates. This chapter also addresses strategic considerations, procedures, and practical concerns of arbitrator challenges, including the potential implications of successful challenges.

Beginning with a look at the January 6 riots at the US Capitol, and concluding with neo-Nazi rallies in support of "white free speech" in Charlottesville, VA, and earlier in Skokie, IL, we discusses how groups are weaponizing free speech to suppress the speech of others.

The Civil War in the lower Mississippi valley demonstrates the complexities of abolishing slavery. Focusing mostly on the Emancipation Proclamation, historians fail to explain how military emancipation was translated into abolition, viewing the Thirteenth Amendment as a stand-alone measure that gave constitutional sanction to the proclamation and that followed inevitably from it. However, abolition must be understood in conjunction with restoring the seceded states to the Union, since Americans generally believed that only states could abolish slavery. After the proclamation, Unionists in Louisiana and Tennessee split into free-state and proslavery – or “conservative” – factions, with both attempting to organize loyal governments. Taking proslavery Unionism seriously, Republicans insisted that the rebellious states abolish slavery in their state constitutions as a condition for readmission. The Thirteenth Amendment was thus originally envisioned to complement state action. Federal military success in the lower Mississippi valley first elucidated the problem of conjoining abolition and state restoration, and the region served as the crucible for transforming military emancipation into constitutional abolition.

The Union capture of Atlanta in early September 1864 reframes the presidential election and the war. Louisiana’s free-state constitution wins voter approval and becomes operative, formally abolishing slavery in Louisiana, although military–civilian conflict continues to hamper the Unionist government. Free-state radicals and black leaders call for political and legal equality, but the Louisiana government takes no action in defining black freedom. The Arkansas Unionist government faces difficulties in asserting its authority, and it receives limited assistance from Federal military officials. In Tennessee, free-state and conservative Unionists offer competing plans for the state to conduct a presidential election, and black Tennesseans in Nashville hold their own election, but Tennessee’s electoral votes ultimately not counted. Andrew Johnson delivers “Moses of the Colored Man” speech during the campaign, affirming commitment to abolition. Republican support for the Thirteenth Amendment muted during the campaign, but Lincoln wins reelection.

The new Constitution had existed for a short time before Madison and others became concerned about constitutional interpretations that were expanding the power of the national government. This early dialogue about federalism centered on what each state viewed as undesirable equilibrium: either forces that would weaken the relative authority of states or forces that would diminish national authority. Secretary of the Treasury Alexander Hamilton’s financial and economic policies were broad expansions of national powers including assuming Revolutionary War debts and establishing a national bank. Anti-Federalists and others viewed these policies as part of a dangerous trend towards national consolidation that would eventually annihilate the states. Southern states, in particular, thought that without constitutional amendments to constrain the powers of a Northern majority, the South would be unable to protect slavery. When Virginia’s legislature passed the nation’s first interposition resolutions and a memorial in 1790 to sound the alarm to other states and Congress, it faced Federalist criticism that it was illegitimately intruding into the federal government’s sphere.

As Americans have monitored federalism, they struggled with how a government based on sovereignty divided between nation and states might function. The Constitution’s shared sovereignty created an inherently dynamic federalism with almost continuous debates over the balance of power, making this testing of the balance of federalism and monitoring government central to the American constitutional order. Many constitutional debates involved the protection of slavery, yet other interests including debt, taxation, and police powers also played vital roles in shaping American federalism. State resistance to the national government utilizing the constitutional tool of interposition arose when the disequilibrium of federalism was most keenly felt and states needed to resist perceived constitutional overreaching by the national government. This state legislative resistance shaped the broader American political conversation about constitutional rights and jurisdiction and this debate over federalism is arguably a strength and not a weakness of the framers’ constitutional design,inviting each generation to determine what the appropriate constitutional balance should be.

A series of important lawsuits in the 1820s represented an increasingly stark division in American thinking about the role and authority of the Supreme Court in: Hunter v. Martin, Devise of Fairfax (1814), Martin v. Hunter’s Lessee (1816), McCulloch v. Maryland (1819), and Cohens v. Virginia (1821). That debate over federalism reflected fundamentally different views of the foundation and formation of the Constitution. For John Marshall and other nationally minded Americans, the Constitution had been established as the act of one national people, forming a national government with considerable powers. For states’ rights advocates, the Constitution was a compact of sovereign states, leaving state sovereignty largely intact except for limited and express grants of powers to the national government. Those competing views shaped how each side regarded the role and authority of the Supreme Court, and rhetoric became more extreme as nationalists feared disunion and states’ rights advocates feared the disintegration of state authority, including over slavery.

Why are religious minorities well represented and politically influential in some democracies but not others? Focusing on evangelical Christians in Latin America, I argue that religious minorities seek and gain electoral representation when (a) they face significant threats to their material interests and worldview and (b) their community is not internally divided by cross-cutting cleavages. Differences in Latin American evangelicals’ political ambitions emerged as a result of two critical junctures: episodes of secular reform in the early twentieth century and the rise of sexuality politics at the turn of the twenty-first century. In Brazil, significant threats at both junctures prompted extensive electoral mobilization; in Chile, minimal threats meant that mobilization lagged. In Peru, where major cleavages divide both evangelicals and broader society, threats prompt less electoral mobilization than otherwise expected. The multi-method argument leverages interviews, content analysis, survey experiments, ecological analysis, and secondary case studies of Colombia, Costa Rica, and Guatemala.

One key feature of the Constitution – the concept of federalism – was unclear when it was introduced, and threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. In their famous essays in The Federalist, Alexander Hamilton and James Madison defended the Constitution and argued that state legislatures would sound the alarm if the national government exceeded its authority. They argued that through interposition state legislatures would effectively check the national government by mobilizing resistance should the government try to overreach. Resolutions passed by legislators could legitimately be considered an expression of the people that could then be shared with the state’s congressional delegation and other state legislatures. Hamilton’s and Madison’s advocacy for state legislatures as monitors of the equilibrium of the two levels of government under the Constitution was a rhetorical argument designed to address the objections of Anti-Federalists. At the time of the ratification debates, both men were deeply distrustful of state legislatures, yet needed to explain how the national government would not overwhelm the states.

Two dominant constitutional issues in the 1790s illustrate the fluid nature of constitutional meaning in the early republic. One issue was whether the Constitution permitted individuals to sue states in federal court. The Supreme Court’s decision in Chisholm v. Georgia (1793) generated widespread state interposition to resist the Court’s broad interpretation of a constitutional clause and resulted in the Eleventh Amendment. A second constitutional issue generating interposition in 1796 was whether President Washington had exceeded his authority in negotiating the Jay Treaty with Great Britain. Federalists argued that the Constitution’s text clearly provided presidential authority while Republicans wanted Congress to speak for the sovereign people and have a vital role in assessing a treaty’s constitutionality. Both sides considered it important to understand the intent of those who drafted and ratified the Constitution and to employ that history in interpreting the document. Yet, this process of constitutional interpretation allowed inferences from the Constitution’s text, reliance on memory, and even thoughts about the framers’ intentions.

The organization of loyal governments on a free-state basis in Tennessee and Arkansas during early 1864. Unionists in Arkansas hold a constitutional convention in January and draft a state constitution prohibiting slavery. Despite logistical challenges, constitution gains approval by voters in Union-held Arkansas in March. In Tennessee, Andrew Johnson formulates plan to hold local elections before holding a state constitutional convention. Johnson’s plan includes a loyalty oath that imposes stricter requirements for voting than Lincoln’s ten-percent plan. Local elections take place and officials began assuming office, but the unsettled military situation in the state forces postponement of the plan to hold a state constitutional convention.

Why are religious minorities well represented and politically influential in some democracies but not others? Focusing on evangelical Christians in Latin America, I argue that religious minorities seek and gain electoral representation when (a) they face significant threats to their material interests and worldview and (b) their community is not internally divided by cross-cutting cleavages. Differences in Latin American evangelicals’ political ambitions emerged as a result of two critical junctures: episodes of secular reform in the early twentieth century and the rise of sexuality politics at the turn of the twenty-first century. In Brazil, significant threats at both junctures prompted extensive electoral mobilization; in Chile, minimal threats meant that mobilization lagged. In Peru, where major cleavages divide both evangelicals and broader society, threats prompt less electoral mobilization than otherwise expected. The multi-method argument leverages interviews, content analysis, survey experiments, ecological analysis, and secondary case studies of Colombia, Costa Rica, and Guatemala.

This scene-setting chapter charts out the challenges Europe’s monarchies had to face in the wake of the French Revolution and the key means they employed to achieve their survival – among them an alliance with nationalism and imperialism, constitutional development and public relations techniques. It also introduces royal heirs as individual agents – and the process of succession more widely – as an essential part of this political arsenal. The chapter concludes with a discussion of the main contexts within which the lives and functions of a nineteenth-century heir had to unfold: the constitution, the royal family, the public sphere and the court.