Constitutional Democracy

University of Minnesota Law School Scholarship Repository Constitutional Commentary 2007 The eT nsions of Constitutional Democracy. Book Review Of: Constitutional Democracy: Creating and Maintaining a Just Political Order. by Walter F. Murphy George Thomas Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Thomas, George, "The eT nsions of Constitutional Democracy. Book Review Of: Constitutional Democracy: Creating and Maintaining a Just Political Order. by Walter F. Murphy" (2007). Constitutional Commentary. 372. https://scholarship.law.umn.edu/concomm/372 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. THE TENSIONS OF CONSTITUTIONAL DEMOCRACY CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER. By Walter F. Murphy. 1 The Johns Hopkins University Press. 2007. Pp. xviii-547. $55.00. George Thoma/ In The Federalist. No. 1, Alexander Hamilton, noting that the people were "called upon to deliberate on a new Constitu tion for the United States of America," insisted that the "subject speaks of its own importance."' Hamilton would quickly cast this in sweeping terms suggesting-in a phrase I am hesitant to quote as it is called forth so frequently I fear making it trite-that in deliberating on the Constitution the people were deciding whether government could be constructed by "reflection and choice" and not simply by way of "accident and force." 4 Yet in the closing paper of The Federalist, No. 85, Hamilton would make some concession to accident, openly acknowledging that the Constitution came from imperfect hands under imperfect circumstances: "I am persuaded that it is the best which our po litical situation, habits, and opinions will admit, and superior to any the revolution has produced."' Here Hamilton captured the peculiar nature of modern constitution making at its birth. Mod ern constitutionalism is a self-consciously reasoned attempt to bring a polity into being. And yet, in doing so, a constitution must accommodate the particular people it is created for, bend ing here and there to their habits, opinions, and circumstances: that is to say, to accident if not force. In just this manner, a con stitution may embrace universal principles, but it does so for a I. McCormick Professor of Jurisprudence Emeritus. Princeton Universitv. 2. Assistant Professor of Political Science at Williams College. Profess~r Thomas is author of The Madisonian Constitlllion (forthcoming. Johns Hopkins University Press). 3. THE FEDERALIST. NO. I. at I (Hamilton) (Clinton Rossiter ed .. 199'1). 4. /d. 5. THE FEDERALIST. NO. 85. at 491 (Hamilton) (Clinton Rossiter ed .. 1999). 793 794 CONSTITUTIONAL COMMENTARY [Vol. 24:793 particular people, marking its boundaries by way of the people, even while attempting to cultivate and sustain that people's at tachment to the constitution.6 Needless to say, this is a difficult and complex enterprise. If we take The Federalist seriously, looking "forward with trem bling anxiety" to the completion of the American Constitution, whether our great experiment has been entirely successful is an open question. 7 It is one thing to create a constitutional democ racy, no easy task, it is quite another to sustain it, as Abraham Lincoln noted on the eve of the Civil War.x And it is, in a sense, a perpetual endeavor. It is this fraught enterprise that Walter Murphy's Constitutional Democracy: Creating and Maintaining a Just Political Order sets out to capture. McCormick Professor of Jurisprudence Emeritus at Princeton University, Murphy is one of the most influential constitutional scholars of the twentieth century-Justice Samuel Alito is a former student- and a deco rated Marine.~ As if that were not enough, in the midst of his academic career, Murphy also penned several very successful novels, most notably The Vicar of Christ, which, as it happens, did not center on the small world of academic infighting and ro mance.10 With Constitutional Democracy Murphy returns to more standard scholarly fare- even as he draws on his skills as a novelist in the opening half of the book-giving us a fitting cap stone to such an illustrious career. Constitutional Democracy is an extraordinarily ambitious book, taking as its model nothing less than Aristotle's Politics (if operating in more circumscribed terrain). In this, it brings to gether a blend of the theoretical and empirical that captures the sort of political science practiced by Montesquieu and Toc queville and traced to Aristotle in its understanding of a re- 6. See GARY JEFFREY JACOBSOHN, APPLE OF GOLD: CONSTITUTIONALISM IN ISRAEL AND THE UNITED STATES (1993). 7. THE FEDERALIST. No. 85. at 495.(Hamilton) (Clinton Rossiter ed .. 1999). 8. Abraham Lincoln. First Inaugural. in ABRAHAM LINCOLN: HIS SPEECHES AND WRITINGS (Roy P. Basler ed .• 2001) (hereinafter BASLER). 9. Most prominently. Murphy has given birth to the '"Princeton'" school in consti tutional thought. leading essays of which are gathered together in CONSTITUTIONAL POLITICS (Robert P. George & Sotirios A. Barber eds .• 2001) and the casebook AMERICA!'\ CONSTITUTIONAL INTERPRETATION (Walter Murphy, et al. eds., 2003). He is also the intellectual godfather to studies of "strategic'" judicial decision-making. pio neered by his WALTER MURPHY, ELEMENTS OF JUDICIAL STRATEGY (1964), and was a pioneer as well in the comparative study of law and courts, see WALTER MURPHY & JOSEPH T ANENHAUS. COMPARATIVE CONSTITUTIONAL LAW (1977). 10. WALTER MURPHY. THE VICAR OF CHRIST (1979). 2007] BOOK REVIEWS 795 gime. 11 Murphy's general analysis seeks to illuminate how consti tutional democracy is created, maintained, and changed. Yet these analytical distinctions are brought to life by an empirical and comparative analysis that is remarkable in its breadth and erudition. Murphy moves seamlessly between political philoso phy and the concrete circumstances of particular regimes. We thus come to understand constitutional democracy as it is mani fest in particular regimes and our understanding is deepened by comparing and contrasting these regimes. Inevitably, the over arching nature of Murphy's project marks a general path and de fense of constitutional democracy, offering puzzles for us to ponder and weigh, without giving us easy answers. * * * Murphy begins with the fictional nation of Nusquam, a na tion just delivered from tyrannical government, as it undertakes the process of creating a new regime. In the first three-fifths of the book we follow the imaginary founders of this polity as they attempt to construct an order that is both just and possible given the not particularly fortuitous circumstances of Nusquam. The delegates debate the merits of alternative political systems, weighing issues of justice and morality against practical political concerns: what can politics realistically achieve, how should moral disagreements be dealt with, what will this particular peo ple at this particular time be willing to accept? Murphy frames this opening section as a Socratic dialogue of sorts to let the is sues speak for themselves. Yet the dialogue, in the form of the convention debate, does not exert a force of its own, ineluctably drawing us to certain questions, and entertaining us with the charm and wit of the exchange. It does not come to life in the manner of a Platonic dialogue. Indeed, the dialogue is inter spersed with lectures from professors who speak to alternative political systems and, as we descend to particulars, the various elements at play within constitutional democracy. In these debates, we hear the voices of modern thinkers Robert Dahl, Richard Posner, John Rawls, and Robert George are a few obvious examples-brought to life by various dele- 11. ARISTOTLE. THE POLITICS (Stephen Everson ed .. 19RR): MONTESQUIEU. THE SPIRIT OF THE LAWS (Anne Cohler. Basia Miller & Harold Stone eds .. 19R9): ALEXIS DE TOCQUEVILLE. DEMOCRACY IN AMERICA (Harvey C. Mansfield & Delba Winthrop. trans .. 2000). For an insightful discussion of this sort of political science. see JAMES W. CEASER. LIBERAL DEMOCRACY AND POLITICAL SCIENCE ( 1990). 796 CONSTITUTIONAL COMMENTARY [Vol. 24:793 gates. 12 Murphy makes one professor all too real in delivering a flat lecture that requires, quite literally in the book, espressos all the way around to hold the delegates' attention. One can feel the collective discomfort of the room and is not altogether pleased to be subject to it. This is so even when those professors whose lectures are seasoned with wit and eloquence interrupt the dia logue and step to the lectern. It also captures a truth about mod ern constitution making: academics, most notably law professors, have been, for good or ill, a highly visible presence at recent con stitutional conventions, seeking to educate would-be constitution makers by instructing them on the virtues and vices of different electoral systems, bills of rights, and judicial review, to name a few of the issues Murphy highlights. 13 This does, I suppose, cast the convention in a more realistic light. If ideal founders would be "both philosophers and statesman," this is a combination rarely seen at actual constitutional conventions. As Murphy him self says. "it is unlikely that either learned scholars or experi enced statesman would look on this group as exemplary models for constitutional engineers'' (p. 325). Thus, despite the opening dialogue form, reading Constitu tional Democracy is more like reading Aristotle than Plato. This is fitting in that Murphy's understanding of the constitutional en terprise draws deeply on Aristotle, going so far as to define a constitution as "a way of life" (p. 13). And even while Murphy thinks of constitutionalism in modern terms as a "normative po litical creed" that places limits on governmental power, he insists that this inevitably shapes the nature and character of a given regime-that is, its way of life.

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