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Easing the Stress on Constitutional Democracy

On October 6, 2019, I had the pleasure of speaking at a conference entitled “Constitutional Democracy Under Stress.” The conference was hosted by Section 1 and its founder, Peter Biro, who incidentally was one of my early mentors when I was a summer student. Mr. Biro, whose article for ARL on the Section 1 project can be read here, gathered an eclectic mix of speaker to discuss various topics of public interest, but with a focus on resisting what might be called the populist current. The topics were as varied as the speakers and I was fortunate to be asked to speak about the importance of the rule of law.

The title of my remarks were “Between Activism and Abdication: The Judicial Function and the Rule of Law.” However, I ended speaking more about the rule of law generally. The conference was well-attended, but very few of the attendees came from a legal background. And so, while I did discuss the importance of the judiciary to a functioning legal order – and particularly how the courts ought to strike the “Goldilocks” balance that checks the other branches of the state while not undermining their own legitimacy – I also spoke at some length about the importance of democratic institutions and processes generally.

My remarks can be viewed here.

I had the pleasure of following Justice Alison Harvison Young, who gave an important address about judicial independence. Her remarks can be viewed here. After I spoke, Justice Harvison Young and I took some truly excellent (and, in some cases, highly spirited) questions from the audience. I am hopeful that Q&A session will be uploaded to YouTube soon.

I want to thank Peter Biro for inviting me to speak at this conference, but even more so for organizing and promoting it. Our Constitution and institutions are only as good as those who are charged with upholding them and, ultimately, with the people who must hold leaders to account. No democracy can survive without an engaged citizenry, and so it was utterly heartening for me to see dozens of thoughtful individuals in the audience who are clearly deeply committed to the well-being of our country and to discussing and debating how we can sustain all we achieved for generations to come.