Is Law? Constitutional Crisis and Existential Anxiety

Abstract

In the recurring discussions of constitutional crises, one may find three forms of existential anxiety. The first, and most fleeting, is an anxiety about the continued existence of the nation. A second form of anxiety-to my mind, the most interesting form-is an anxiety about the possibility of the rule of law itself. Third, and most solipsistically, references to crisis in constitutional law scholarship could be the product of a kind of professional anxiety in the legal academy. We may be asking ourselves, “Constitutional theory: what is it good for?” and worrying that the answer is, “Absolutely nothing.” And yet, I argue, existential anxiety is not always to be regretted, cured, or mocked. Indeed, it may serve as a valuable reminder of the difficulty-and necessity-of giving law to oneself.

Keywords: Constitutional law, Constitutional crisis, National security, Self-defense, Rule of law, Legal theory, Constitutional theory

JEL Classification: K10, K30, K39, K19