I have just spent the last day and a half at a remarkable conference here at Princeton University on “The Limits of Constitutional Democracy.” The conference was organized to honor my very close friend and former colleague Walter F. Murphy, the McCormick Professor of Jurisprudence emeritus, whose magnum opus Constitutional Democracy: Creating and Maintaining a Just Political Order was published a little over a year ago. The purpose of the conference was, however, not just to honor an important scholar and a wonderful person. It was to confront Murphy’s warning that, to paraphrase a famous statement, we will continue to live in a constitutional democracy only “if we can keep it.” The question in the minds of most of the 50 or so scholars who attended the conference was to what extent the United States is in, or is approaching, a constitutional crisis?
The immediate context for that question is of course the feeling of many that the Bush administration’s post-9/11 restrictions on individual liberties in the name of national security have tilted the balance of constitutional power too far in the direction of the executive branch. The broader context is the question whether European and North American democracies have not for many years been imperiling the vitality of their constitutional democracies by widespread legislative and executive restrictions on individual freedom, again, in the name of national and international security. One of the great innovations in recent American constitutional law scholarship, one we owe in large part to the path-breaking scholarship of Walter Murphy, is its comparative turn. There were several European scholars in attendance, and many of us who are Americans have been studying comparative constitutional law. The result was that the problematique of the conference, while arising principally from a concern with constitutional developments in the United States, was couched in comparative international terms.
There was a good deal of difference of opinion among the conferees, although I think most of us shared a strong feeling that something is dangerously wrong in the present state of constitutional democracy. But we were usefully reminded just before lunch today (this did not help my digestion) that experts in national security consider that the 9/11 attack should be thought of not as a unique event, but as only the first occurrence of predictably serious terrorist violence. If so, the question is whether our traditional constitutional institutions and procedures can cope with the emerging situation, or whether in fact what many of us criticize as incursions on liberty are better understood as necessary and justifiable comings to terms with international political reality. I am not prepared to go that far, but I did agree with one of our colleagues who reminded us at the end of the morning that these are not merely questions for scholars, but that the test of our deliberations would be our success in communicating them to larger publics.
I hope this is a start.
