Constitutions, Democracy, and the Rule of Law

As part of Columbia University's 250th birthday celebrations, a two-day symposium, "Constitutions, Democracy, and the Rule of Law," was held on October 16 and 17, 2003. The symposium gathered 16 distinguished panelists from around the world to discuss the balance between security and civil liberties.

Jon Elster, who is the Robert K. Merton Professor of Social Sciences, moderated the first session, "Do Constitutions Constrain?" The next day's session, "Terror and Civil Liberties," was moderated by Akeel Bilgrami, the Johnsonian Professor of Philosophy.

Michel Rocard, a member of the European Parliament and former prime minister of France, began the first day's session with a discussion on the balance between hard and soft constraints. He invoked Napoleon's maxim, "A Constitution must be short and obscure" to prove his point that "it is the flexibility, the adaptability, and the soft character of the constraint which characterizes it, which permits a constitution to last a long time."

The second speaker was the former mayor of Bogotá, Antanas Mockus Sivickas, whose presentation was entitled "Legal, Moral, and Cultural Self-Bindings to Prevent Shortcuts." He spoke about how constitutions can help prevent what he called shortcut culture. "Constitutions bind, but they also guide and support very strongly governance, even if affecting cultural regulations or moral corporations that have constitutional protection," he said.

The morning's session was closed out by New York University professor Adam Przeworski. He cautioned that "actions based on unfounded beliefs may have disastrous consequences. Particularly now, when the U.S. government is engaged in wholesale institutional engineering in faraway lands, skepticism and prudence are in order." Prezeworski concluded on a related note, saying, "Projects of institutional reform must take as their point of departure the actual conditions, not blueprints, based on institutions that have been successful elsewhere. As a former Brazilian minister of state reform Luis Carlos Bresser Pereira remarked, "institutions can at most be imported, but never exported."

The panel response to and discussion of the morning's speeches included remarks by Stanford University professor John Ferejohn, New York University professor Bernard Manin, and Columbia University professor Jeremy Waldron. After their remarks, the morning's speakers had an opportunity to respond to the comments. A member of the audience, the former president of Ecuador Sixto Durán-Ballén took to the stage and reinforced one aspect of the discussion, the gap between developed and underdeveloped countries, by saying, "Democracy is not likely to survive in the poorer countries."

Akeel Bilgrami began the second session, "Terror and Civil Liberties," by quoting an opinion from Judge Damon J. Keith, "Democracies die behind closed doors."

The first panelist, Columbia law professor George Fletcher, discussed how we are living in a "uniquely dangerous time" in his speech, which is entitled "Liberty and Security Under Stress." He concluded his speech with a quote from Benjamin Franklin, who said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

Stanford University professor James Fearon continued the discussion with his speech, "Catastrophic Terrorism and Civil Liberties in the Short and Long Run." He said that catastrophic terrorism "is going to remain and probably grow more dangerous long after al Qaeda is just a memory." The good news is that this will only occur in the long run. Fearon then concluded with a mixed forecast and said that when the fear of terrorism subsides, only then do "the courts actually start doing their job of protecting the constitution."

Diego Gambetta, a professor of sociology at Oxford University, talked about exaggerations of the truth and the rationale for preemptive attacks in his speech, titled, "Of Truth and Terror: Through the Prism of 9/11."

"It seems to me," Gambetta said, "[that] the war on Iraq seems to have been driven by backward-looking reasoning, rather than forward-looking calculations."

The last speaker in the morning of October 17 was G. A. Cohen, who is the Chichele Professor of Social and Political Theory at All Souls College, Oxford University. Cohen took exception to the indignation shown by the Israeli ambassador to the United Kingdom concerning the deliberate targeting of civilians by Palestinians, in his discussion entitled "Casting the First Stone: Who Can, and Who Can't, Blame the Terrorists?"

"If the sad moral truth is that although all the alternatives to terrorism are unacceptable," Cohen argued, "then how can the person who deprived me of acceptable alternatives, and so drove me to admittedly unjustifiable terrorism, condemn that resort without justifying the action that disabled me? That person must respond to my grievance that she left me with no acceptable alternative to a morally heinous and forbidden action."

Using a colloquial reference, Cohen said, "If you've got someone up against the wall, don't complain if he kicks you in the balls, unless you can justify your action of putting him up against the wall."

In addition to the morning's speakers, the second day's panel response and discussion included Stanford University professor Debra Satz, Columbia University professor and Nobel laureate Joseph Stiglitz, New York University Professor Stephen Holmes, and Columbia University professor Jon Elster.

Satz argued that the panel represented two viewpoints on constitutions, "One, which says that constitutional values should never be weakened, even in emergencies. Another, that says we should be trading off against our different interests."

The former viewpoint was taken up by Joseph Stiglitz, who said, "I would argue that it's exactly at times like this, where there are excessive passions in the public, that we need to check the authoritarian tendencies that are present in any government, and therefore that we should not suspend the systems of checks and balances, and perhaps even strengthen them."

He backed up this viewpoint by stating, "I can say that I was on the National Security Council when I was chairman of the Council of Economic Advisors, and so I had the advantage of having seen what it means when you see highly secret information. I wouldn't rely on it."

Stephen Holmes's discussion concluded with an extension on Cohen's discussion, stating that Osama bin Laden has justified his terrorism war on the United States by saying, "You say you can't kill civilians en masse? Really? What about Hiroshima?"

Although he acknowledged that this would not silence the critics of terrorism, he said that the statement was relevant to Americans because, "We don't know what we have done in the rest of the world."

Toward the end of the discussion, Elster talked about how the U.S. Constitution has not had a history of dealing effectively with crises. "It's not at all clear," he said, "that those who operate it, the agents of the checks and balances, might not be swept up by the same passions, irrationalities, as those whom they are supposed to check."

The panel discussion concluded with questions posed by Bilgrami, who asked what response law students and professors should have regarding restrictions on civil liberties in the wake of terrorist threats. Fletcher responded to this question, saying, "I think it was a major embarrassment for me and my profession that the major spokesperson against the military tribunals was not a law professor, but William Safire of the New York Times. He was the first person who came public and said, This is an outrage."

In the end, the panel appeared to find common ground on one of Fletcher's last points, when he stated, "the Constitution is a living document; it's interpreted over time."