Law, Constitution, and Culture
Lawless America: What Happened to the Rule of Law Bruce P. Frohnen Ohio Northern University Pettit College of Law
Though it has been obvious to discerning observers for a considerable period that the United States is moving at an acceler- Structures of ating pace from constitutionalism toward arbitrary power, the understanding are crumbling. 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 Bruce P. F rohen is Associate Professor of Law at the Ohio Northern University Pettit College of Law. This article is based on a paper given at the Academy of Philosophy and Letters on June 11, 2010. 1 See, for example, H. L. A. Hart’s review of Lon Fuller, The Morality of Law, 78 Harvard Law Review 1281-96 (1965), especially 1285-86.
Lawless America: What Happened to the Rule of Law
Humanitas • 5