Is American Constitutional Law in Crisis? Ass'n of American Law Schools Section on Constitutional Law (January 2009)

By Kozinski, Alex | Constitutional Commentary, Summer 2009 | Go to article overview

Is American Constitutional Law in Crisis? Ass'n of American Law Schools Section on Constitutional Law (January 2009)


Kozinski, Alex, Constitutional Commentary


First of all, welcome to the Ninth Circuit. It's really no accident. We're not only the biggest Circuit out there, but we go all the way from the Arctic Circle in the north to Samoa in the south, making us the northernmost and southernmost circuit. You probably knew that. But you probably didn't know that we're also the westernmost circuit, reaching all the way out to the International Date Line, and the easternmost circuit, because we have Guam and Saipan, and the now famous Marianas Trench. We basically have you surrounded, so you really had no choice but to be here anyway. Still, it's good to have you.

I'm not quite sure what I'm doing on this panel, and I wasn't quite sure even as we were going up; then Jack Balkin turned to me and said, "Be witty." So think of me as the comic relief. I actually did have a few things to say but then Suzanna Sherry said them first, so I'm really going to have to vamp here for a little bit.

I was sitting at my computer in the middle of the night a couple of years ago when I got Larry Tribe's email with his manifesto. I like Tribe quite a bit, and I respect him a great deal. So it's something that I took seriously; if he said we have a constitutional crisis, that was something I needed to think seriously about. I think we all need to think seriously about it, and I've been thinking a little bit about the subject on and off since I got that email in the middle of the night with his manifesto attached.

I've asked myself, "What would a constitutional crisis look like? What does a constitutional crisis look like?" And I guess my view of what a constitutional crisis is, is really quite narrow. It is not what Jack Balkin talked about; I view those as political crises--situations where people chose to disregard the Constitution.

They say, that's what the Constitution means, but I'm going to disregard it. By acknowledging the Constitution and departing from constitutional norms, these people create a crisis that needs to be dealt with politically; it's really not a constitutional crisis at all. Even something like the Civil War, in my view, was not a constitutional crisis. Remember, the South seceded, in part, because it took a different view about the rights of states to secede, which was a different view of the Constitution. They went to war over it, and we've had other occasions when we've called out the troops and had to do things in the political arena to vindicate constitutional rights. But those were, to my way of thinking, political issues and not constitutional ones.

So what does a constitutional crisis look like? I just got done reading a book called Hitler's Justice: The Courts of the Third Reich. It was written by Ingo Muller about 10 years ago, and I've had it on my shelf all this time. (I'm a slow reader.) I recommend it highly. It's worth reading because it gives an example of a constitutional crisis. Germany is not the United States, but there's enough analogy that we can draw some lessons. The book details a situation where the judicial process was perverted for another purpose. Where the people who were part of the judicial process--the judges and prosecutors--seemed to be hijacking the legal processes and perverting them to some other purpose. In that case it was for political ends.

To me, that's a constitutional crisis. It's a situation where judges were doing what you all have been telling law students for 30 or 40 years judges do--they don't do law, they do politics by another name, which is something Suzanna talked about. If the public becomes convinced that's in fact what is going on, then I think we have a constitutional crisis: People are pretending to do constitutional law, they try to portray the idea to the public that they are doing constitutional law, but in fact people come around to the idea that what's going on is the raw exercise of power, not constitutional law at all. That, to my mind, is a constitutional crisis, and I don't think we've had one of those in our history, and certainly not in the recent past. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Is American Constitutional Law in Crisis? Ass'n of American Law Schools Section on Constitutional Law (January 2009)
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.