In this chapter, I focus directly on the central issue of the relationship between rights constitutionalism and private power.

In chapter six, I argued that constitutionalism is best understood as an artefact in the struggle between hegemonic and counterhegemonic forces. This emphasises both the fluidity and contingency of constitutional argument, and that the prize sought is to present the provisional outcome of these struggles as commonsensical, and so privilege some arguments in constitutional terms over others.

The structure of this chapter is as follows: I first set the discussion in context by showing how constitutional globalization was seen by powerful actors in the global economy as important in providing the conditions for neoliberalism to flourish. This provides the backdrop for considering the argument that a reformulated rights constitutionalism, which strengthens its negative and posi­tive controls, can act as a counterhegemonic constraint on private power. A legal pluralist focus on the politics of definition shows that running through these doctrinal debates are competing views over whether the state promotes or negates individual freedom—in other words, they are situated within the frame­work of the state-civil society divide. This reveals the limits of trying to remake rights constitutionalism from within: even if doctrine were to be reformulated to reach private actors, it is unlikely that rights constitutionalism could, to any significant extent, be used as a sword for counterhegemonic values. Moreover, it leaves in place a framework which enables, for example, corporations to employ constitutionalism, both as a sword against state attempts to regulate their interests, and as a counterhegemonic shield, reinforcing the idea that the state is the only major centre of political power in society that can oppress individual liberty.