by Walter F. Murphy. Baltimore: The Johns Hopkins University Press, 2007. 568pp. Cloth. $55.00. ISBN: 9780801884702.
Reviewed by Jack Wade Nowlin, Jessie D. Puckett, Jr., Lecturer in Law and Associate Professor, The University of Mississippi School of Law. Email: jnowlin [at] olemiss.edu.
Walter F. Murphy, a man who likely needs no introduction to the readers of this publication, is the McCormick Professor of Jurisprudence Emeritus at Princeton University and the author of numerous well-known works, including scholarly articles, books, textbooks, and even best-selling novels such as VICAR OF CHRIST. Murphy’s new book, CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER, is a crowning achievement to a lifetime’s serious reflection and writing on constitutions, constitutionalism, and democracy. The phrase “instant classic” may be an oxymoron, but if it can be fairly applied to any recent work in the field of constitutional theory, this is the one.
Murphy’s book is divided into two main sections. The first section is entitled “Creating a Constitutional Democracy.” It includes chapters on a broad range of topics such as the goals, interests, and values which constitutions are designed to serve; the alternative political systems a polity might select for itself aside from or in addition to constitutional democracy – such as representative democracy, consociational democracy, guided or coercive capitalism, and perfectionism; the question of whether to draft a constitutional text or rely on existing and evolving constitutional traditions; designing the basic “shape” or architecture of a constitution, including such questions as the fundamental structure of governmental institutions and whether to adopt some form of constitutional preamble; designing the judicial institutions of government; drafting a bill or declaration of rights; and, finally, issues related to the drafting of constitutional provisions to deal with such “special cases” as the emergency powers of government. The second section is “Maintaining a Constitutional Democracy,” and it includes chapters on citizens and citizenship, military and security forces, bureaucracies, deposed despots, constitutional interpretation as a form of constitutional maintenance, and the limits of legitimate constitutional change.
CONSTITUTIONAL DEMOCRACY has three particular strengths. The first is the sophistication of the book’s analysis of the philosophical foundations of constitutional democracy and of political viewpoints such as perfectionism. The second is the book’s tremendous depth and richness of comparative and historical constitutional analysis, which draws on a broad range of examples from North American, European, Asian, Latin American, and African constitutional history and contemporary practice. The third is the vibrancy of the book’s first section, which takes the form of the debates of a fictional constitutional “caucus” which meets to [*469] discuss the design and adoption of a “new political system” (p.31) for the fictional nation of “Nusquam,” a country just “emerging from a long period of authoritarian rule by a dictatorial junta of military officers and wealthy civilians” (p.23).
In the introduction and first section of CONSTITUTIONAL DEMOCRACY, Murphy explores the normative bases of constitutional creation and builds on his earlier analysis of democracy and constitutionalism, the conceptual framework familiar to the readers of his casebook, AMERICAN CONSTITUTIONAL INTERPRETATION, and his well-known essay “Constitutions, Constitutionalism, and Democracy” in CONSTITUTIONALISM & DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD. However, his treatment of the normative foundations of constitutional creation is fuller and more layered in CONSTITUTIONAL DEMOCRACY – both with greater attention paid to the competing arguments in favor of representative democracy and constitutionalism as rival theories of government and with a very illuminating examination of additional political perspectives, including consociationism, guided capitalism, and perfectionism. These approaches to the form, purpose, and role of government are given a robust analysis and a careful defense. For instance, a fictional professor – whose arguments, Murphy notes, “parallel” in many respects those of Robert P. George (p.102, note 112) – addresses the caucus and in seven pages of text defends the “perfectionist” view that “[j]ustice does not require law to be neutral between claims of what contributes to or detracts from a morally worthy life” (p.102). Consociationism and guided capitalism receive similar extended analyses. Murphy’s discussion of these topics – as with the other topics in CONSTITUTIONAL DEMOCRACY – is informed by a breathtaking array of comparative and historical illustrative examples. CONSTITUTIONAL DEMOCRACY includes discussions of various aspects of constitutional government and constitutional change in the United Kingdom, Japan, Chile, Canada, Germany, South Africa, France, India, Italy, Singapore, Ireland, Turkey – and many others nations.
Much of the foregoing discussion occurs in the context of the debates of Nusquam’s fictional constitutional caucus, which is composed of a diverse group of characters representing a wide range of philosophical perspectives and cultural backgrounds. Murphy’s use of fictional narrative here greatly enriches the academic discussion of constitutional creation and allows him to present debate in a lively fashion from a variety of viewpoints. Among the dramatis personae of the caucus are Ibrahim Ajami, a “Sunni Muslim who is professor of Islamic Studies at the [Nusquam] National University” who “must struggle constantly to differentiate the Muslims with whom he works from the Wahhabites, who regard him as an atheist” (pp.32-33); Jessica Jacobsohn, a “former professor of comparative constitutional law on the faculty of Nusquam’s National University” who “had been fired because of telling her classes that Nusquam urgently needs [*470] sweeping constitutional reform” (pp.33-34); Federika Strega, a civil servant who studied law and economics at the University of Chicago and whose intellectual debt to Richard Posner is obvious and acknowledged (pp.34-35); and a Walter Murphy-esque character, Professor Retlaw Deukalion, who appears as a lecturer to address the caucus and is described as “a retired member of the faculty of Princeton” who “ha[s] written extensively about problems of establishing a new constitutional order” (p.61).
After intense discussion, informed by presentations by various fictional academics representing various political perspectives, the caucus of Nusquam votes on a series of proposals. The members of the caucus ultimately choose constitutional democracy as their basic form of government. They decide to write a constitutional text, and they opt in favor of “a bicameral parliamentary government,” rejecting both “federalism and presidentialism” as basic constitutional structures (p.239). They also choose the “German Model” of a single constitutional court with the power of judicial review. As for a declaration of rights, they adopt both non-justiciable “Irish-style directives for general policy goals,” and “a bill of rights with full judicial protection” (p.306). Parliament, however, is “authorized to override, by a three-fifths majority, judicial interpretations” of the bill of rights except for “those pertaining to freedom of religion, political participation” and other specified fundamental rights (p.306). On the question of abortion, Professor Retlaw Deukalion expresses his personal view that the proposed Constitution recognize the fetus as “human with a right to life,” but he also suggests as a matter of political prudence that the caucus adopt a general clause “expressing commitment to the sanctity of life” and “leave the specific policies” on questions such as abortion “to Parliament and the Constitutional Court” (p.320). This suggestion is also adopted by the caucus.
In the second section, Murphy returns to conventional exposition and presents, among many other things, enlightening discussions of constitutional interpretation and the distribution of interpretive authority among the institutions of government. On the question of constitutional interpretation, Murphy argues that the familiar form of originalism which seeks to recover and “think the thoughts the founders were thinking” faces “insuperable difficulties” arising from the fact that such thoughts may never have existed in any form useful for constitutional interpretation (p.476). Thus the “principal danger” of this form of originalism lies in interpreters’ mistakenly “imputing their own creative choices to the dead” (p.480). Murphy recognizes, however, that alternative approaches emphasizing the purposes and underlying political theories of a constitution could easily confer on interpreters such wide discretion in interpretation as to “convert the constitutional text into a hortatory document” (p.481). Thus the “principal danger” of such purposive approaches “lies in the interpreters’ justifying their choices according to their own judgments about current needs restrained only by the general purposes of the constitutional text and the indistinct [*471] borders of the constitutional order” (p.480). Still, Murphy concludes that “purposivism at least honestly acknowledges that interpreters are choosing, revising, and perhaps even creating” (p.481).
Murphy also recognizes that “[m]itigating the dangers” of purposivism as an interpretive method “requires sharing interpretive authority so that no one person or institution can monopolize the processes of constitutional reformation” (p.481). Not surprisingly, then, Murphy endorses departmentalism over judicial supremacy in constitutional interpretation, stating that “[i]f a single institution” such as the U.S. Supreme Court “could not only determine the scope of its own authority, that of the other branches of government, and the legitimacy of all public policies but also definitively define the very essence of constitutional democracy, the polity would be in danger” (p.470). Murphy thus predictably condemns the U.S. Supreme Court’s recent judicial supremacist decision in CITY OF BOERNE – a decision invalidating the Religious Freedom Restoration Act on judicial power and federalism grounds.
Indeed, Murphy describes the decision in CITY OF BOERNE as the result of a judicial “fit of pique” in response to the implicit challenge to the Court’s supremacy in constitutional interpretation presented by Congress’ use of the legislative enforcement power expressly granted to it in Section Five of the Fourteenth Amendment, an enforcement power Congress legitimately used to restore a form of heightened constitutional protection for the free exercise of religion after the Court had abandoned such protection (p.491, note 94). Notably, Murphy also asserts, as an empirical matter, that in practice “the actual operation” of the various institutional arrangements in constitutional democracies “produces some form of departmentalism” and thus that “in no constitutional democracy does any single institution have either a monopoly on constitutional interpretation or a guarantee of interpretive supremacy” (p.469). Murphy, then, clearly sides with the departmentalists, both prescriptively and descriptively, on the question of interpretive authority over the U.S. Constitution, and, moreover, he views departmentalism as a necessary constitutionalist check on the authority of institutions – such as the Supreme Court – that, in Murphy’s view, must unavoidably deploy a potentially dangerous purposivist interpretive method in constitutional interpretation.
Of course, some readers will find flaws in Murphy’s book. A few may be put off by the unusual novelistic device used in the first half or may find that the non-academic characters talk just a bit too much like academics to be quite convincing. Others may be annoyed by Murphy’s generous sprinkling of jabs at predictable targets – such as George W. Bush, John Ashcroft, Pope John Paul II, Antonin Scalia, Robert Bork, and so on. But, in the end, such complaints are quibbles. CONSTITUTIONAL DEMOCRACY is simply a masterpiece, displaying an encyclopedic command of the stuff of constitutional theory and a symphonic grace in its arrangement. [*472] Murphy’s magnum opus is truly just that – a great work – and no doubt one that will endure as a classic for decades to come.
Murphy, Walter F. 1979. THE VICAR OF CHRIST. New York: MacMillan.
Murphy, Walter F., James E. Fleming, and Sotirios Barber (eds). 1995. AMERICAN CONSTITUTIONAL INTERPRETATION, Second Edition. Westbury, New York: Foundation Press.
Greenberg, Douglas, Stanley N. Katz, Melanie Beth Oliviero, and Steven C. Wheatley (eds). 1993. CONSTITUTIONALISM & DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD. New York, Oxford: Oxford University Press.
CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997).
© Copyright 2007 by the author, Jack Wade Nowlin.