As long as the American Constitution serves as the focal point of American identity, many constitutional interpretative theories also serve as roadmaps to various visions of American constitutional identity. Using the debate over the constitutionality of the Patient Protection and Affordable Care Act, I expose the identity dimension of various interpretative theories and analyse the differences between the roadmaps offered by them. I argue that according to each of these roadmaps, courts’ authority to review legislation is required in order to protect a certain vision of American constitutional identity even at the price of thwarting Americans’ freedom to pursue their current desires. The conventional framing of interpretative theories as merely techniques to decipher the constitutional text or justifications for the Supreme Court’s countermajoritarian authority to review legislation and the disregard of their identity function is perplexing in view of the centrality of the Constitution to American national identity. I argue that this conventional framing is a result of the current understanding of American constitutional identity in terms of neutrality toward the question of the good. This reading of the Constitution as lacking any form of ideology at its core makes majority preferences the best take of current American identity, leaving constitutional theorists with the mission to justify the Court’s authority to diverge from majority preferences.

A growing literature explores how global governance mechanisms can be made more effective and democratic to tackle trans-boundary development challenges like global epidemics, global poverty or climate change. The international system today is characterized by an increasing influence of non-state actors gradually undermining the prominent role of the state. Considering this new reality, the focus of analysis has increasingly shifted towards examining the fundamental role of non-state actors, in particular from civil society, in building democratic global governance mechanisms. The literature still says little about joint governance efforts of both state and non-state actors to promote democracy on the global level. This article examines two global governance mechanisms, UNITAID and the FAO Committee on World Food Security, which were created by the joint action of state and non-state actors to tackle trans-boundary development challenges. Departing from the ideal type of democratic polycentrism this article argues that both mechanisms can be seen as encouraging experiments in global democracy. This analysis attempts to show that democratic polycentrism may prove to be a useful theoretical blueprint for pursuing more democratic global governance mechanisms and that more democracy on the global level depends on the joint activities of democratic states and civil society actors.

A surge in academic interest in the interaction of international law with international politics has recently raised the profile of the rule of law in global politics. The idea of an ‘international rule of law’ is central to many accounts of international order, and to both political science and legal scholarship. Despite its popularity, the concept is rarely defined or examined. This article considers the theory and practice of the international rule of law. It shows first that the international rule of law cannot be deduced from the conventional Anglo-American version of the rule of law in domestic legal theory, as sketched by Joseph Raz and others. It then considers two competing versions of a distinctly international concept of the rule of law, one based on a positivist theory of compliance and the other on a structurationist theory of practice. The former is more common in legal and political scholarship but the latter accounts better for the political power of international law in relation to states.

The emergence of strong authorities beyond the nation state has raised questions about the absence of democratic legitimacy at the supranational level. The usual response to this dilemma has been an attempt to uncouple the strict link between national statehood and democracy, and in the process, to confer a degree of legitimacy on supranational authorities. This article argues that such an uncoupling is unconvincing, and that within the legitimacy-democracy-statehood triangle, the uncoupling of legitimacy and democracy is a more promising strategy. The legitimacy of supranational authorities is grounded in their appeal to ‘public reason’ – a legitimacy-conferring device well-suited to supranational authorities, as illustrated in this article by the examples of the European Court of Human Rights and the WTO dispute settlement system. On this basis, the article argues that we should not see the relationship between statehood legitimacy (based optimally on electoral democracy) and supranational legitimacy (based on public reason) as mutually antagonistic and engaged in zero-sum competition. Rather, this relationship allows scope for synergy, with supranational authorities often playing an important role in supporting democracy at the nation-state level.

There is recent scholarship suggesting that the Responsibility to Protect (R2P) has now emerged as a master concept in relation to responding to mass atrocity crimes and that the R2P can further be seen as representative of an emerging global constitutional norm. In critical response, this article provides the first attempt to systematically investigate R2P’s relationship with global constitutionalisation as well as to explore its wider implication with regard to global constitutionalism. In doing so, the article examines existing discussions of R2P and global constitutionalism, tracks the normative evolution of R2P in order to determine its current ‘stage’ of norm diffusion, and further attempts to locate the extent to which the R2P can be perceived as also part of a process of global constitutionalisation. From this analysis the article concludes that although the R2P could be labelled as, at best, a weak emerging norm, it fails to meet the more demanding signifier of an emerging constitutional norm and that there is further evidence to suggest that the R2P might be better understood as a stalled or degenerating norm.