Just as a checkbook can’t balance itself, our Constitutional system of checks and balances only works when most Americans share a disciplined and courageous commitment to making it work. And it’s this shared commitment to checks and balances that we seem to have somehow lost during these past five years – or perhaps we lost it much earlier, and just did not notice until now. The Bush Administration itself clearly has zero commitment to the limits the Constitution places on executive power – but who can blame them trying to circumvent a system that is apparently cherished by neither Congress nor the public?
[.... ]One major moral of this particular story—the story of the Bush Administration's successful power grab – is that law does not exist, and cannot be understood, within its own hermetically sealed universe. Law does nothing and means nothing outside of its cultural context.
As a result, those of us unhappy with the way our constitutional system is working today will not be able to fix the problem through strictly legal means—we already have, on paper, a perfectly workable constitutional system. If we want to roll back unconstrained executive power, we need to look beyond the law to the broader political culture, and work on changing that.
This has powerful implications for how law is studied, discussed and taught within the legal academy. Legal scholarship has become increasingly technical, increasingly theoretical, and increasingly specialized. As Harvard Law Professor Bill Stuntz lamented recently in The New Republic, “Too many scholars write for an audience of dozens (if that – a good friend of mine says he writes for six people), and far too few write for thousands, fewer still for millions.” This, unfortunately, is as true of constitutional law scholarship as it is of legal scholarship more generally.
The result? When an issue comes along that arouses the deepest passions in those of us who study and write about the law, and we finally bestir ourselves to communicate some of our outrage to those outside the legal academy, we find, alas, that most of them aren’t listening to us at all, and fewer still are moved by our concerns.
If the legal academy were to take seriously the notion that law is but a small part of culture writ large, we would do two things. First, we would alter our scholarly agendas and our curricula to reflect a commitment to studying law as a form of culture, striving not simply to develop neater and more original legal theories, but to understand the complex interrelationship between law and other political and social forces. And second, we would recall that in classical Greece and Rome, law was conceived as a close relation of rhetoric. Legal argument was seen not merely as a technical skill, but as a form of rhetorical art, one designed both to engage the mind and stir the passions and, ideally at least, to inspire civic virtue.
In a world of academic specialization and turgid, jargon-laden law review prose, this may seem an odd way to think about law. But if we lawyers and legal scholars value the rule of law, we should strive to reclaim the ancient notion of legal argument as a public-regarding form of rhetoric. Because if we can’t convince our fellow citizens to know or care about our fragile constitutional system, which now lies in tatters, then little of what we do has any point at all.