Putting the Law Back in Constitutional Law

Abstract

Taking a cue from Professor Laurence Tribe's decision to abandon the third edition of his constitutional law treatise, the organizers of this symposium have asked us to address whether constitutional law is in crisis. I am agnostic on that question, although I think that there has been a turn in the wrong direction. But if there is a crisis, I know who to blame. If constitutional law is in crisis, it is our fault. The legal academy has erased the distinction between law and politics, used its expertise for political advantage rather than for elucidation, and mis-educated a generation of lawyers. We thus should not be surprised if judges have, as Professor Ristroph suggests, lost their faith in the Constitution. We have led them into the wilderness.