Wednesday, August 26, 2015

Introducing Constitutional Law in the Midst of the Plight

8/26/2015—Martin Heidegger says that we are living in the midst of an emergency. That emergency manifests in many ways, one of which is that we do not understand that we are living in an emergency. We think things are OK. Normal. Like they have always been. Our problems are just human nature.

Last year, I talked about the broken Republic. (On this blog, one year ago) This year, I tried to introduce my students in constitutional law this year to thinking in the emergency. Here is what I told them.


Why does almost every American law school require constitutional law? Unlike the 1st year courses in private civil law and procedure, such as the property, torts and contract, constitutional law does not really form the basis of all legal concepts in all other areas of law. Nor will most of you handle constitutional cases, though some of you will. Of course constitutional law is on the bar exam, and in fact constitutes a substantial portion of the bar exam, but family law is on the bar exam as well and most law schools did not require it.

The answer has something to do with Marbury v Madison and the doctrine of judicial review. Judicial review, which Marbury is credited with establishing, although the idea was not particularly controversial and had been previously accepted, is the power of the court, in the course of ordinary litigation, to hold the actions of other branches of government, such as statutes and Executive Orders, unconstitutional and thereby void. Judicial review is the opposite of parliamentary supremacy, which is the doctrine that laws enacted by the legislature are beyond challenge by other branches of government.

Aside from the context of Marbury – – how it arose, how it was a part of a political/legal struggle between 2 political parties, the Federalist party and the new Democratic Republican party of the recently elected president Thomas Jefferson, and how the particular holding of unconstitutionality could not readily be overturned by the president or by Congress –- aside from all that, the establishment of judicial review meant that some questions that could perhaps have been treated in purely political terms with the common issues of law to be debated in a courtroom. And so, with many twists and turns, and with much controversy, some of which we will examine in this course, Marbury leads to the resolution of the gay marriage issue in the Supreme Court in Obergefell v. Hodges. And that means that lawyers – – judges, litigators and even legal theorists – – will be at the heart of American public life. Judicial review mean that the legal profession that you are seeking to join has a special responsibility for the healthy functioning of the constitutional system. And I believe that this is the reason that almost every law school requires constitutional law. You will each be responsible for the health of American public life.

So the question I want to put you is, how are we, and the Constitution that has been put into our hands through the doctrine of judicial review, how are we doing?

I think we are doing very badly indeed. I know members of our faculty in the law school disagree with me about this, Maybe we are doing just fine. But In fact I believe that the experiment of the Republic is in danger of failing. There was always a question of how this would go. Apocryphally, Benjamin Franklin was asked if he left a constitutional convention, Mr. Franklin, what form of government have we? The answer, the Republic, Madam, if you can keep it. We are in danger of not keeping it.

The story of failing American public life obviously can be told from 2 different points of view. From one point of view, the Republican Party has become a rogue political party, denying facts and science, in thrall to the economic 1%, and so is poisonously partisan that it would rather see America go down the drain then see Pres. Obama succeed. From the other point of view, we don’t have a president as much as we have a dictator, who believes his own policy, rather than, as the Constitution would have it, the policies of Congress, should be the law, in many fields from immigration to environment to the Iranian deal. Under this regime of Presidential will, no individual rights are safe, from search and seizure to religious liberty.

The very fact that there are 2 such narratives absolutely believed by millions of Americans demonstrates that political solidarity and community is failing in America today. Perhaps you believe that everything is fine and that political life has always been like this more or less because of human nature. But I think there is something wrong.

The question then becomes, what went wrong? When did it go wrong? How did it go wrong? And, most importantly, can it be made right, or at least more right than at present? And I hope that this course will give you the tools, and perhaps if I am successful, some hints, that might help you answer this most important task of healing America.

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