Though it has been obvious to discerning observers for a considerable period that the United States is moving at an accelerating pace from constitutionalism toward arbitrary power, the vast majority of Americans have been slow to recognize that a crisis of governance exists. Much of the reason, I think, is that entire structures of understanding are crumbling. We suffer, not from a frontal attack by clear enemies to constitutional government, but from an internal decay of understanding.
Sadly, in many ways lawyers, whose job it should be to defend the legal and governmental structures of our society, are the least likely to recognize such a crisis. Lawyers have an unfortunate tendency to see such issues in narrow terms, or more likely to miss them altogether. Why? Because they see law as by nature concerned solely with technical issues of legal definition and application. Issues of justice and morality may be important, on this view, but they are not specifically legal and so not the particular concern of law and/or lawyers. 1
I want to argue that law, as law, is in fact important to our understanding of the contemporary crisis of governance. I would not claim that the crisis is solely or even primarily a crisis of law. At its root it is a crisis of reason and morals. We have chosen to forget the order of being and our obligation to maintain its coherence. But I do think we can better understand the nature and extent of our predicament by examining its impact on the rule of law.
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