When a constitutional court faces opposition from other branches of government or significant segments of the public, should it always hold fast to what it considers constitutionally right, even where this would potentially harm its status and perceived legitimacy? Or are constitutional compromises sometimes justified? Such ‘institutionally hard’ cases – those characterised by a sharp tension between constitutional principle and institutional prudence – pose a true dilemma for constitutionalism. This article advances a realistic, yet principled, liberal-constitutional approach to this dilemma, put forth in the vein of Rawlsian non-ideal theory. It addresses a troubling gap between, on the one hand, the idealising discourse of constitutional theory – which overlooks or downplays the actual social and political pressures that courts must confront – and, on the other, a growing political science literature which, in the name of ‘realism’, views judges solely as strategic actors, leaving no role for principled reasoning. What has stepped into the gap in normative theory is a vague notion of ‘judicial statesmanship’, which praises or criticises judges post hoc, on an intuitive basis, without any tangible prescriptive bite. Developing evaluative and prescriptive guidelines for institutionally-hard cases, a non-ideal theory of constitutional adjudication should construct principles that both reinforce the commitment to ideal constitutional principle, and properly situate constitutional courts within the real – contingent and often very non-ideal – social and political contexts in which they operate.

What, if anything, can constitutions do to resist democratic backsliding? The collapse of the Weimar Republic has led scholars of comparative politics to conclude that constitutional forms and institutions can do little to resist the breakdown of democracy and the rise of autocracy. This paper offers a constitutionalist response. The outlines of that answer can be found in decades-old policy documents produced by a set of German émigré scholars during and in the immediate aftermath of the Second World War: Franz Neumann, Herbert Marcuse, and Otto Kirchheimer. The secret reports root constitutional stability in the creation of a framework for bounded partisan pluralist contestation among political parties that track the principal social and economic cleavages, and that is rooted within, and does not seek to overthrow, the underlying political economy. Second, the secret reports highlight the importance of constitutional design in creating a constitutional infrastructure for bounded pluralistic political contestation, especially with respect to the role of political parties. Third, the secret reports suggest a counter-narrative of the German Basic Law as creating a framework for political contestation that reinforces constitutional stability instead of undermining it.

This article aims to provide an alternative account of political constitutionalism by situating it in a broader process of constitutional politics than the traditional court vs parliament debate has suggested. Drawing upon Robert Cover’s distinction between the jurispathic and the jurisgenerative constitution, I argue that parliamentary decision-making is not necessarily more congenial to a jurisgenerative constitutional order than judicial review as political constitutionalists contend. I trace the jurispathic character of current scholarship on political constitutionalism to the presupposition of institutional sovereignty in a narrow understanding of constitutional politics, which its defenders share in common with the supporters of judicial supremacy. To move towards a robust version of non-court-centred jurisgenerative constitutionalism, which I call constitutional jurisgenesis, we need to rethink the place of politics in a constitutional order. From Cover’s idea of constitutional nomos I take two further lessons for this new understanding of constitutional politics. First, constitutional theory should reconsider the role of institutional sovereignty in the relationship between law and politics in constitutional orders. Second, to engage the people in constitutional politics, we need to shift attention from the popular sovereignty-centred debate to constitutional narratives, which are oriented towards nomos-building.

With the progressive digitisation and use, in particular, of the internet of things and artificial intelligence by industries, commerce, financial services, science and education, the public administration, health services as well as individuals, our society and daily life gets more and more dependent on the security of the net: cybersecurity. The new risks are self-made, a threat to almost everybody and new in kind. And they have a global dimension. For the difficulty of attribution of cyber attacks traditional concepts of deterrence and defence are not a solution. Given the new conditions of the ‘digital constellation’ this article aims at exploring instruments and methods of cybersecurity governance in a broad sense, learning from internet governance and taking a constitutional perspective. It is based upon shared responsibility, resilience and citizens’ participation in the making and future application of an inclusive global rule-making system. Multi-stakeholder mechanisms are combined with deliberative processes, standardisation and legislative action. In accordance with the principles of global constitutionalism this new framework of global rule generation would emerge as a common democratic instrument of people to meet common challenges in addition and complementary to action for cybersecurity at the local, regional, national and supranational levels.