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Book Chapter

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In the late 1940s a consensus emerged: a post-World War II, post-colonial, post-authoritarian, grand consensus in Europe and beyond. Dignity, liberty, and equality should not merely be promises on paper or an elitist privilege for the few, and representative democracy should be the way to run societies. This consensus certainly gave birth to a variety of legal regimes, but it also defined a baseline for the political systems we call constitutional democracies: first, power should be distributed to parliament and representative government via fair elections that ensure equal voting rights and a realistic option of a peaceful change of government and, second, power should be limited by fundamental human rights and by legally enforceable commitments to checks and balances, ie, with separated powers or in a version of federalism. As such, legality is not just a form or a fetish but a substantive notion, and democracy is based on the substantive rule of law. In a constitutional democracy, the law is then conditio sine qua non to live together, a safeguard of deliberation, and a foundation of trust. We call this constitutionalism.