Is Law? Constitutional Crisis and Existential Anxiety

Article excerpt

To ask, "Is God?" appears to presuppose a being who perhaps isn't ... and thus is open to the same objection as the question, "Does God exist?" ... but until the difficulty is pointed out it does not have the same propensity to confuse language with meaning and to conjure up a God who may have any number of predicates including omniscience, perfection and four-wheel-drive but not, as it happens, existence.

--Tom Stoppard, Jumpers (1)

[W]hereas the allotment of proper names rests only on an ad hoc convention, the extension of the general terms of any serious discipline is never without its principle or rationale.... When [it is asked], "We know that it is called law, but is it really law?", what is demanded--no doubt obscurely--is that the principle be made explicit and its credentials inspected.

--H. L. A. Hart, The Concept of Law (2)


Scholars have raised (at least) two distinct specters of crisis in American constitutional law. The first is a potential crisis of doctrine: specifically, the worry is that constitutional doctrine has ceased to look like law. The doctrine is in disarray; one case contradicts another and some cases even contradict themselves. Of course, doctrinal muddles are nothing new, but now the mess is so bad that one of the country's leading constitutional scholars does not think it is possible to clean it up?

A second concept of crisis focuses not on doctrine per se, but on the actions of institutions and officials within American government. Here, constitutional scholars have been interested in moments at which the Constitution fails to do what it is ostensibly designed to do: resolve disagreements, including disagreements between government institutions about their respective powers, without violence in order to ensure the possibility of "ordinary" politics. (4) On this account of crisis, the focus is less on judicial decisions than on the constitutional system itself. The worry is that the constitutional order is in crisis; it has reached a precarious spot from which it may change radically or topple altogether. (5)

These are two different accounts of crisis, each explored in more detail below, but the two accounts are related in that each implies profound constitutional disagreement. (6) Doctrinal crisis results when the official interpreters of the Constitution cannot agree on what it means, and when the interpreters' disagreement is so great that their interpreters--including scholars, lawyers, and lower court judges--cannot make sense of the doctrine. Institutional or systemic crisis results when the actors within the constitutional system disagree about their roles and authority and are willing to go to the mat to defend their competing interpretations.

If the talk of crisis stems from the presence of profound disagreement, we should ask whether there is something distinctive about contemporary constitutional disagreement. Stark disputes over both doctrine and the scope of institutional power under the Constitution have occurred at many points in American history. If American constitutional law is in crisis now, it has been for a long time--perhaps since its inception. And if the notion of permanent crisis seems oxymoronic, it may be that "crisis" is not a very useful concept in the field of constitutional law.

Whether the concept of crisis is useful to American constitutional law or not, the rhetoric of crisis has surfaced often in recent years. The second part of this essay explores possible reasons for this rhetoric. It could just be that crisis talk sells papers (or places articles), and it should be noted that several academic commentators have raised the specter of crisis only to dismiss it. Still, even if these commentators agree that the talk of crisis is a false alarm, what led anyone to raise this alarm now?

In the fact that the alarm has been raised, and even in the manner of its dismissal, we may find key insights into to contemporary American political and legal thought. …