An important gap existed in the public. The public was divided between those who critically used reason, and those who could vote or sit in Parliament. Habermas sees the English reform bills of the nineteenth century as attempting to remedy this gap, but also as evidence of the public asserting itself. Similar processes operate in France and Germany to institutionalize the public, but their development is initially slower. According to Habermas, the French Revolution takes the rapid approach to institutionalizing the public, whereas English social structures developed more gradually. The French revolution secured the place of public opinion within the French state, but it also relied upon appeals to an idea of the public to push through reforms. In all respects, however, England led the way.
Habermas now moves to a more generalized treatment of the operation and function of the political public sphere. He repeats and extends his arguments about the social and economic preconditions for its existence. This time, however, he establishes a link between civil society and the public sphere. A chain is established. The public sphere depends on civil society, because it articulates its interests, and civil society depends on a liberalized, free market. Civil society in this period is free from government intervention, but is regulated by its own laws.
There is a strong association between freedom of trade or the free market and political freedom. The private individual's freedom is linked to property, and trade in the market requires that market to be free. Like private property, the eighteenth and nineteenth century market has to be protected from state intervention. This is not a simple process, and requires a complex legal system, administered by the state itself.
The bourgeois constitutional state is the next key historical development. In many ways, it represents the state's response to the development of the public sphere. Its response is to institutionalize the public sphere as part of the state apparatus. In a previous section, Habermas argues that the public aimed to be the source of the authority of general laws. The bourgeois constitutional state achieved this aim by linking the public sphere to the idea of law.
By linking public opinion to law, legislators made a clever move. Habermas's analysis points out that law involves both reason (which formulates and justifies the law) and will (which enforces it). This definition of law establishes a value judgment. Will is a form of power that leads to domination, and is therefore undesirable. Public opinion, on the other hand, is associated with rational-critical debate. By linking it to the most powerful aspect of the state, one could legitimate the claim that the state was not a dominating force.
The constitutional state therefore used the public sphere as a way of legitimating its own power. In return, the functions of the public sphere were protected by legislation that established "basic rights". Habermas see the rights that form the basis of most constitutional states as protecting different aspects of the public sphere. He will go on to show how the public sphere does and can act as a real check on domination.
Habermas then returns to the idea of universal access. How can the public sphere be truly public if not all people are included? This is a central problem that continually resurfaces. The nineteenth-century answer to the problem was that restricted access to the public sphere could be justified if it resulted from conditions in civil society. If the economic conditions of civil society in theory allowed everyone the chance to own property and so participate in the public sphere, then no problem was apparent. As civil society was rigorously separated from the state, the state itself could not alter these conditions. This argument, which can be reduced to the idea that those too poor to vote are not disenfranchised but unfortunate, is not acceptable in a modern democracy. However, Habermas's argument rests on the fact that the bourgeois constitutional state was very far from the modern state. Habermas ends this section on the verge of another transition. The contradictions within the bourgeois constitutional state foreshadow its demise.