Constitutional Democracy: Creating and Maintaining a Just Political Order.

• Author: Thomas, George
• Position: Book review

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.

In The Federalist, No. 1, Alexander Hamilton, noting that the people were "called upon to deliberate on a new Constitution for the United States of America," insisted that the "subject speaks of its own importance." (3) 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 political situation, habits, and opinions will admit, and superior to any the revolution has produced." (5) Here Hamilton captured the peculiar nature of modern constitution making at its birth. Modern 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, bending here and there to their habits, opinions, and circumstances; that is to say, to accident if not force. In just this manner, a constitution may embrace universal principles, but it does so for a particular people, marking its boundaries by way of the people, even while attempting to cultivate and sustain that people's attachment to the constitution. (6)

Needless to say, this is a difficult and complex enterprise. If we take The Federalist seriously, looking "forward with trembling 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 democracy, no easy task, it is quite another to sustain it, as Abraham Lincoln noted on the eve of the Civil War. (8) 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 decorated Marine. (9) 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 romance. (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 capstone 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 together a blend of the theoretical and empirical that captures the sort of political science practiced by Montesquieu and Tocqueville and traced to Aristotle in its understanding of a regime. (11) Murphy's general analysis seeks to illuminate how constitutional 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 philosophy and the concrete circumstances of particular regimes. We thus come to understand constitutional democracy as it is manifest in particular regimes and our understanding is deepened by comparing and contrasting these regimes. Inevitably, the overarching nature of Murphy's project marks a general path and defense 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 nation 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 people at this particular time be willing to accept? Murphy frames this opening section as a Socratic dialogue of sorts to let the issues 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 interspersed 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 delegates. (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 dialogue and step to the lectern. It also captures a truth about modern constitution making: academics, most notably law professors, have been, for good or ill, a highly visible presence at recent constitutional 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 himself says, "it is unlikely that either learned scholars or experienced statesman would look on this group as exemplary models for constitutional engineers" (p. 325).

Thus, despite the opening dialogue form, reading Constitutional Democracy is more like reading Aristotle than Plato. This is fitting in that Murphy's understanding of the constitutional enterprise 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 political 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. Murphy thus does not defend constitutionalism--as liberalism is at times defended--as "value neutral." (14) On the contrary, it rests...