Annual Princeton ConLaw Schmooze

Democracy and Accountability

Date: 
Fri, 12/07/2012 to Sat, 12/08/2012
Location: 
by invitation only


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This workshop is the Princeton version of the Constitutional Law "Schmooze." The "Schmooze" has brought together major scholars in both law schools and political science departments for decades now. The Fifth Annual Princeton Schmooze carries on the tradition of bringing legal and political experts together to discuss a topic of general and pervasive importance in the field.

The workshop will be held on Friday-Saturday 7-8 December 2012, starting at noon on Friday and continuing through dinner on Saturday.

Our theme this year is "Democracy and Accountability."   At the Princeton Schmooze, we will focus on the problems that democracies generate for constitutionalism and the difficulties of ensuring accountability and responsiveness of democratic institutions within a constitutional order in an economically and politically challenging time.  

As always, the Princeton Schmooze tries to frame a broad question within American constitutionalism that also resonates in other constitutional systems.    Contributions that address matters related to the theme either in the US or elsewhere are welcome. 

In the US, 2012 is an election year in which an endless campaign culminates in a fraught vote in which people are never sure that their ballots have been properly counted.  American politics is polarized in a way not seen in generations, which raises serious questions about what an evenly divided population actually wants from its elected officials and what a representative government should decide to do about any contentious issue.   How are constitutional institutions supposed to work when the public is split 50-50 around the most fundamental issues of our times?   If the constitution assumes that power will check power because some constitutionally defined institutions will act to constrain others, what happens to the constitutional order when some institutions fail to decide at all because there is no workable majority for any policy?    Is "no action" a reasonable democratic alternative?   What if that produces a catastrophe? 

In the European Union, democratic politics are strained in ways never before seen, as a growing number of member states can no longer be responsive to their citizenries because they are under austerity programs that determine virtually all aspects of state policy for the foreseeable future.   Can these new democratic deficits at the member state level within the EU – democratic deficits brought about by mandatory austerity programs and transnational supervision of state budgets – be compensated for by increasing democratic mechanisms at the European level?  Within or without the European Union, can any government hammered by markets or hemmed in by supranational fiscal supervision in the global economic crisis still be meaningfully democratic if it has so little room for maneuver?   What happens to democracy – or for that matter, constitutionalism – in a time of austerity? 

In addition to these concerns, our theme also encompasses how courts justify their interventions in assessing laws that are the result of highly fragile and deeply imperfect legislative compromises that may represent no one's idea of an ideal policy.    If a hard-won political compromise barely squeaked through a parliament, should courts give those policies a constitutional free pass because the practical political alternative is doing nothing at all in a polarized politics?    If a government cannot act to respond to what its public wants because it has made promises to transnational financial institutions, should courts act to declare such agreements unconstitutional in the name of constitutional budget authority – or principles of domestic democracy?  

Around the world, we see fragile democracies battered by economics accompanied by creeping authoritarianisms on the rise.   Can constitutionalism save democracy in times of trouble?   Can constitutionalism halt the creation of one-party states, military dictatorships, permanent presidents and the like?   Can constitutions help to maintain the democratic accountability of those who seek to entrench themselves in power for long periods of time?

Our theme also calls to mind the variety of mechanisms for ensuring that politicians remain democratically accountable to their constituencies, as well as accountable to constitutional principles.    We might, as a result, consider debates over term limits for politicians and fixed terms for judges, as well as ways of limiting democratic accountability to insulate some officials from immediate public disapproval – particularly judges and central bankers whose "independence" needs to be preserved.  (From what and from whom? you might ask.)      What are the most defensible mechanisms through which the accountability of political officials is ensured:  elections, procedural guarantees accompanying administrative decisions, transparency institutions, oversight mechanisms or constitutional review?  All of the above?   All of the time?   What are the roles of domestic constitutions and domestic courts in a setting where domestic politics are increasingly gridlocked and where market pressures set limits without consulting voters?  

Those of us who work on constitutions often focus on the "constitutional" part of the phrase "constitutional democracy."  This year, the Schmooze emphasizes the "democracy" part by focusing on what happens when the ability of elected officials to respond to public demands breaks down.   Should the inability of parliaments to reach decisions or the inability of governments to respond to crises license more activity on the part of institutions like courts, central banks, and other politically independent authorities?   Can constitutions save democracy from its own limitations?  Should they try?