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This chapter discusses how ‘qualitative analytic’ constitutional rules, such as ‘subsidiarity’, might help democratic politics play a socially adaptive and transvaluational role in finding a path through deep differences in values and incommensurate ways of reasoning. It draws attention to how path rules can underpin a ‘logic of consequences’ that substitutes for more formal reasoning, or for the politically expedient. The path rules involve the sequencing of choices, judgements about reversibility, attention to different ways of framing choices and judgments about whether a critical juncture has been reached where choices are particularly consequential.

This chapter discusses the purposive aims of a constitution. It sets aside purpose defined as ‘goals’ and focuses on ways a constitution can reflect the character of a democratic constitution. The central issue for the expression of character is the modern day, deep social diversity of democratic societies encountered in everyday transactions in shared urban settings. The chapter discusses the role of ‘character’ norms such as prudential and expressive norms. It goes on to discuss the limitations of multicultural theory and other binary ways of distinguishing between deep social differences. The analysis turns to look at the evidence of how differences manifest in a shared setting, including in attitudes towards masculinity.

This chapter opens the discussion of the different ways that constitutions have lost their relevance for modern conditions by looking at the foundational pillar of a constitution. It distinguishes between the functional foundation (who does what and where) and the principled foundation (what gives a constitution its legitimacy). It discusses, first, the reasons why the traditional functional pillar no longer captures the way authority is exercised in delayered and diffused forms of organization. It discusses, secondly, why the traditional principled pillar based on consent has been undermined. It attributes this erosion to the loss of a clear division between the private sphere and the public. It suggests there has been a fundamental shift from viewing legitimacy as based on consent to a view that it rests on identification with the content of a constitution. It points to assertions of ‘rights’ as playing a key role in this shift.

This chapter looks at the way constitutions try to achieve stability in rules and institutional relationships. The analysis distinguishes between instability arising from questions about consent to a regime (support failure) and instability arising from ‘performative’ failure, or unmet demands (demand failure). It describes how traditional approaches to achieving stability, such as through bicameralism or automatic checks and balances, no longer work in today’s circumstances.

This chapter discusses the role of politics in resolving normative differences in socially diverse democracies. It distinguishes between three different roles: providing ‘finality’ or ‘authoritative resolution’; accommodation or compromise; and, the ‘transvaluational’. The transvaluational is defined as an organizational concept referring to the advantages of politics offered by the span of association, the means of establishing policy priorities and the opportunities for feedback. It discusses each role and provides reasons why the transvaluational role is preferred because it puts the spotlight on politics as a way to achieve social adaptation. The chapter concludes by bringing together the challenges identified in the discussion to date. It is the response to these challenges that is discussed in the remaining chapters.

This chapter explores the possible roles of new institutions to offset some of the blind spots of democratic politics analogous to the role played traditionally by Second (legislative) Chambers. It looks at how both market processes and non-market processes involve longer and more dispersed chains of intermediaries. It examines how lengthening chains affect the advantages of democratic politics in offering the widest span of association, feedback and priority selection. The analysis draws on search market theory of institutional economics. It makes an analogy with chains of intermediation in financial markets. The analysis suggests that the constitutional role can itself be defined in terms of providing for institutional support and oversight at the beginning, middle and end of the chains of intermediation. It suggests a role for referendums at the beginning of the chain, an intergenerational equity body in mid chain and a constitutional oversight body at end chain.

This chapter discusses how constitutions can offer assurances against material uncertainties through the systems capability of their structures to manage problems as they arise. It discusses how our use of different systems of social coordination is linked to different forms of behavioral rationality in the way we approach problem management. It makes an important distinction between ‘content’ rationality based on analytic, methodical and causal thinking and ‘source’-based rationality where our reasoning reflects the importance to us of our associates and affiliates. It links content-based rationality to the world of experts and the law. Politics is linked to associative rationality. The distinction involves what are known as ‘dual processing’ theories of rationality. The chapter discusses the relationship with theories of unified rationality underlying concepts of discourse or deliberative democracy.