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The division of decisions into constitutional moments and post‐constitutional moments, with broad coordination on vague general issues in the former and often substantially more conflict over lesser issues in the latter, fits successful constitutional regimes. But in moments of crisis in a previously stable society or in a society in which the initial coordination is contrived or false, there maybe acute moments under the constitution that have the character of constitutional moments. Inability to coordinate then on broad general principles of order can mean the failure of constitutionalism and of democracy. Because it faces severe limits on its workability, democracy is not a panacea for politics. It works only on the margins of great issues on which there is broad consensus.

The claims of the 17th century English radicals were bequeathed to their American compatriots during the following century, and this chapter shows that it enabled the American revolutionaries to utilize the device of a constitutional convention as the authoritative voice of the people and to establish the world's first modern constitution. It considers what became of ‘the people’ once the American constitution had been established, and suggests that their influence has been felt not only through the process of formal amendment and judicial interpretation, but also informally through politics, sometimes crystallized as ‘constitutional moments’ but often on-going and incremental. The chapter concludes that while many would view constituent power as dangerous to the integrity of constitutional forms, few would deny its continuing influence in shaping American constitutionalism.

This chapter ties together the preceding sections of the book. It takes a longer and broader view of the trajectories of national competition law experience and analyzes how they have been intertwined with transnational competition law developments. These interrelationships shape the dynamics of global competition law development and, in order to be effective, any competition law regime for global markets must be based on them. The chapter evaluates the promise of global competition law development and the obstacles to creating a more effective legal framework for global economic relations. It concludes that the early 21st century represents a major point of transition in economic and political relations, and thus a ‘constitutional moment’ in which competition law can contribute to meeting human needs and enriching economic and political opportunities around the world.

This chapter explores how patterns of territorial political mobilization influence the processes of Constitution-making and the choices of constitutional design, focusing on seventeen countries that differ significantly in the structure of their politically salient territorial cleavages. The seventeen cases present relatively recent examples of constitutional transitions. The chapter first examines what it calls “constitutional moments” and three contextual variables that shape their structure and dynamics: the political geometry of territorial cleavages, the means to pursue claims for territorial accommodation, and the relative power positions of political actors. The chapter then considers the context and dynamics of constitutional moments, three stages of Constitution-making processes (agenda setting, deliberation, ratification), and three major constitutional design options to respond to claims for territorial accommodation (symmetrical federalism or devolution with a majoritarian central government, highly devolved federalism with a consociational central government, special autonomy for small territories, and a majoritarian central government).

Among scholars of American politics who study the regime as a whole, two approaches loom large. Identified most notably by the work of Walter Dean Burnham, Theodore Lowi, and Bruce Ackerman, regime change scholarship focuses on the three extraordinary constitutional moments in American political development—the Founding, Reconstruction, and the New Deal. This book’s account of the Anti-Federalists, Andrew Johnson, and Barry Goldwater shows that there were three anti-moments as crucial to American political development as the well-known winners of those critical constitutional junctures. The new interpretation here also challenges the proposition that the moments were equivalent in constitutional significance, suggesting instead that the first moment and anti-moment established a political logic and rhetorical repertoire that structured the subsequent two junctures. The second narrative of American politics emerges from the work of scholars who have tried to understand the relation between the liberal tradition and anti-liberal practices in American political development. Underscoring the persistence of multiple traditions in American political culture, this account shows how both are built into the constitutional architecture, sustained over time, and braided in these extraordinary contests.

What is an amendment? This chapter shows why this question is central to the study of constitutional change. Some constitutional changes are identified as amendments but in reality may be more. Whether a constitutional change is an amendment entails implications for how the change must be made, whether a court can and should evaluate its constitutionality, and what the change requires for legitimation. This chapter returns to the origins of formal amendment—to the Articles of Confederation, America’s first constitution, which codified the very first amendment rule in a national constitution—to uncover the foundations of amendment practice and what makes an amendment different from other constitutional changes. This chapter moreover raises a question about an increasingly common phenomenon that straddles the border of legality and legitimacy: the violation of amendment rules. This chapter explains that the Indian basic structure doctrine and Bruce Ackerman’s theory of constitutional moments are, at bottom, variations on the same theme we see all over the world: changes to amendment rules that occur in defiance of the rules of formal amendment. Many examples follow to illustrate this point. The chapter closes by describing and situating the importance of the chapters to follow in this book. This chapter considers constitutions from around the globe.

After the dictator is removed from power, a “constitutional moment” inevitably starts. This is the paradigm-changing period between when the old political order ends and the new one begins: a time of intense societal introspection induced by an acute political crisis, in which the public mobilizes to support a fundamental transformation in a society’s governing principles and legal norms. It takes the shape of a search for conviviality focusing on a new social contract that the modern world calls a constitution. It includes the work of dismantling the institutional infrastructure of the dictatorship itself and replacing it with the values that animate the nonviolent revolution.

This chapter concludes Part II by suggesting that although the constitutional moment proceeds irrespective of whether the revolution was nonviolent or not, nonviolence makes the passage to a working constitution naturally easier, for instance in the large mobilization in the wake of political assassinations in Tunisia after the revolution. It also concludes that the battle for the constitution continues along a fault line determined by nonviolence: how not to reproduce dictatorship under any guise, religious, military, or corporatist. This battle requires a world vision of the philosophy of nonviolence being applicable not just during the revolutionary moment, but during the constitution-making and justice moments as well.

The chapter argues that Brexit compels the EU institutions and the Member States to engage in constitutional change at EU level. Several provisions of the EU treaties and quasi-constitutional EU norms will need to be amended to adapt to the reality of a Union of twenty-seven. The revision of these legal norms, however, may provide an opportunity to discuss radical changes to the EU constitutional system—a prospect that had been discussed during the euro-crisis, and in the context of the celebrations for the 60th anniversary of the Rome Treaties Treaty reform in the EU has been mixed, and there are many obstacles toward a new constitutional settlement in Europe. Nevertheless, the growing calls for a multispeed Europe signal a credible alternative: after Brexit, integration by a sub-group of states remains a distinctive possibility in case the efforts to reform the EU constitutional system should falter got idiosyncratic national reasons.

This chapter compares and contrasts three republican strategies for implementing egalitarianism. Cass Sunstein and Frank Michelman’s juridical republicanism, in the case of the United States, seeks to entrench a form of welfare-state capitalism by constitutional amendment. Bruce Ackerman and Anne Alstot’s individual demogrant scheme is, by contrast, to be secured by legislation. It is argued that the liberal-republicanism defended here will pursue the constitutionalization project of the former group, but seek to implement the asset-focused egalitarianism of the latter. A distinction is drawn between constitutionalizing the difference principle and the generic form of social system against which it can operate without generating impermissible inequalities. The difference principle itself is not redundant; it both crystalizes and entrenches the very ethos of justice expressed by our institutions. It will function as a legislative fundamental.