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. …