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The Call to Law Is a Call to a Faith in Higher Politics

November 24, 2000|PAUL W. KAHN | Paul W. Kahn is a professor at Yale Law School and author of "The Reign of Law," (Yale University Press, 1997)

The grand civics lesson of the past two weeks has introduced the whole nation to the deepest secret of our constitutional life: There is no line between law and politics.

Each campaign--for Al Gore and George W. Bush are still campaigning--ritualistically claims that it wants nothing more than "the rule of law," and each side accuses the other of subverting law for the sake of politics. One says the Florida secretary of state is acting to carry out her legal duties; the other, that she is acting as the co-chair of the Florida Bush campaign, brazenly trying to steal the election for her candidate. One says the Florida Supreme Court is the final authority on the rule of law; the other, that it is another political institution whose members were appointed by Democratic governors. Everyone involved in the process--the election boards, the vote counters, the lawyers, the candidates--appeals to law and is accused of politics.

Ever since the legal realists of the 1930s argued that the U.S. Supreme Court's rejection of the New Deal in the name of law was only politics by another name, constitutional law professors have been teaching their introductory classes that the line between law and politics is illusory. Now, that knowledge has escaped the academy and threatens to subvert our faith in the rule of law.

The rule of law is our national myth. We must believe the myth if we are to overcome our political disagreements. We need a point of reconciliation beyond our political disputes. That point is our faith in law, and the institutional locus of that faith is the U.S. Supreme Court. To be sure, we can always find the politician behind the robes of the justice, just as we can always find the man behind the robes of the priest. But faith prevents us from lifting the robe. It limits our vision to a set of symbols.

It is the U.S. Supreme Court's role to preserve this national myth. When the court speaks, it speaks in the name of the sovereign people. When it presents to us the Constitution, it purports only to hold up a mirror to the people. Its legitimacy comes not from its knowledge of legal science nor from the justices' political appointments, but from the capacity to persuade us that the rule of law is the rule of the people. At that moment, we overcome the divide between law and politics.

This is not fact, but faith--our civic religion. Neither law nor politics defines us as a nation; rather this faith in a popular sovereign who appears only in and through the rule of law. We know that political beliefs are inseparable from legal views. Just think of our largest constitutional battles. Does the Constitution mandate a color-blind legal system? A woman's right to choose? A limited role for the federal government? These are issues of race, sex and community. No one really believes that law can end our disagreements over these issues. Nevertheless, our faith in the rule of law unites us in a common enterprise through all these disputes.

This faith sets the structure of our grand national debates: Each side must claim the support of law, because in and through law it claims the right to speak for the people. Each side must accuse the other of subverting the law and thus subverting the people. Politics in its local and ordinary form is set off from law; ordinary politics can have an air of illegitimacy about it, even in our democracy. Thus, the bizarre accusation that each side is "politicizing" an election. This claim makes sense only when we see that the call to law is a call to a faith in a higher politics.

Like every faith, our national myth of law's rule can stand only so much public scrutiny. It is vulnerable just because it is a faith. There are no facts by which we can prove it. The popular sovereign is not a subject we can locate, but only a mythical figure through which we understand our history and our identity. Vulnerable as it is, however, we need it; we have no other faith standing in the wings.

So our national civics lesson may be teaching us too much about ourselves. The relentless attack of politics on law may leave us without an institution that can settle our disputes by calling us back to our civic faith. Just as the federal district court and the appellate court could find no federal issue of law on which to rule, the U.S. Supreme Court is unlikely to intervene. Are any other institutions up to the role of speaking in the voice of the sovereign people? Or will they always be seen as just alternative spokespersons for the Gore or Bush campaigns?

This is the greatest danger of the present moment: The rule of law will lose its foundation as a national faith of the people. Law's rule will be seen as nothing more than another face of ordinary politics.

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