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There is no widely adopted definition of ‘constitutional theory’. Nevertheless, at its most basic, descriptive, level, constitutional theory can be regarded as theoretical argument or reflection about the role, nature or practice of public constitutional arrangements, both legal and political, in one or more countries. Such argument or reflection can be carried out in three distinguishable ways, which we call normative, conceptual and positive constitutional theory. Normative constitutional theory consists chiefly of normative arguments in favour of particular constitutional arrangements or practices. It is a branch of applied political theory. It is constitutional theory because the arguments usually offer a closer attention to constitutional institutional detail than is commonly observed in political theory.1 It is constitutional theory because the normative arguments frequently seek to transcend particular political orders (i.e., the arguments aspire to agentneutrality). In that sense, normative constitutional theory is distinct from familiar arguments in constitutional law and politics, which contend for specific outcomes – such as how a particular case should be decided – in particular constitutional orders that are densely structured by settled norms, principles and usage. Conceptual constitutional theory presents arguments about the deep nature of constitutional features, institutions and ideas, typically put across as conceptual or explanatory truths rather than normative arguments. What is the nature of sovereignty, and how does it relate to the nature of law? What is a state? In what sense is constitutional law ‘higher law’? What are the essential characteristics of legislatures, governments and the judiciary? What is constituent power and what is its connection to what is sometimes called ordinary and higher-law making? Martin Loughlin exemplifies this understanding of constitutional theory when he writes that ‘[i]f constitutional theory is to form a distinct inquiry, it must aim to identify the character of actually existing constitutional arrangements’ (Loughlin 2005, p. 186). Loughlin does not mean, however, the character of arrangements in a particular country He means to refer to constitutional arrangements across at least a broad set of countries whose political arrangements differ fundamentally (Loughlin 2005, p. 186).2 His endeavour is comparable to that of H. L. A. Hart’s Concept of Law (1961), which the author famously described as an exercise in ‘descriptive sociology’ (Hart 1994 [1961], p. v). Loughlin considers the role of constitutional theory as being to ‘identify a system of postulates’ or ‘a set of concepts’ such as powers, rights, sovereignty, state, liberties and so on. It is ‘the job of the theorist to … offer an explanation of the character of the practice’ (Loughlin 2005, p. 186). Though this approach purports to be explanatory, we refer to it as conceptual. The ‘explanations’ are neither sociological nor empirical in any rigorous sense. Yet there is a long history of often excellent work in this vein. To take two old foes, Hans Kelsen’s (1967 [1960], pp. 286–320) definition of the state as entirely subsumed within and at one with the legal order is a fine example of conceptual constitutional theory. Likewise, so is Carl Schmitt’s (2008 [1928], pp. 75–82) rival attempt to describe the relationship between sovereignty and constituted law-making power. In this volume, the chapters on constituent power, the material constitution and federalism can be regarded as fine examples of what we consider to be conceptual constitutional theory. Such accounts are conceptual because the authors contend the concepts embody certain inherent meanings, such that usage of these terms in ways that are inconsistent with their alleged postulates are not simply unsound normatively but represent a misunderstanding that could be equated logically with a basic category mistake.