The Embattled Constitution by Norman Dorsen

Author:Norman Dorsen
Language: eng
Format: epub
Publisher: New York University Press
Published: 2013-08-15T00:00:00+00:00

This lecture was delivered on October 17, 2006, and appeared in 82 N.Y.U. L. Rev. 975 (2007).

7

Toward One America

A Vision in Law

J. HARVIE WILKINSON III

Introduction

The present age will go down in American history as a partisan and polarizing one. Indeed, that may be its defining characteristic. America has had deeply divisive eras before—the Federalist-Republican period and the Civil War spring to mind—but those eras divided over deeply consequential principles. The partisan differences of the present era are hardly insignificant, but these differences do not justify what can be described without exaggeration as the sheer magnitude of mutual hate. Thus again we have an America defined by colors—red and blue states—less portentous than the Civil War’s blue and gray, but in their own way sapping the nation’s common bonds and sense of strength.

It would be surprising if the acrimony of the political system had left the courts unscathed. Still no one anticipated Bush v. Gore.1 “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election,” reads the impassioned coda of Justice Stevens’s dissent, “the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”2 The expression capped a judicial era of deep factional divisions, contrary to the founding years of our Republic, when the partisan strife in the political arena was met by an extraordinary degree of unanimity in the Third Branch.3

If law is part of the problem of polarization, it should likewise be part of the solution. In other words, law should consciously aspire to promote a stronger sense of national cohesion. We have not traditionally thought of law in these terms. The great purposes of law have historically been the preservation of order in which freedom may flourish and the protection of liberty itself from overreaching by the State.

To these must now be added a third great purpose—that of maintaining a concept of American nationhood in a divisive and rapidly evolving age. It is hard to overstate the need for a national purpose in law. The gravity of our divisions demands it. The structural manifestations of our divisions—the gerrymandering of congressional districts to reflect each party’s political base; the constant electioneering that leaves less time and opportunity for governance; the twenty-four-hour news cycle replete with cable, blogs, talk radio, and online news sites; the bitter judicial confirmation battles; the willingness of partisans to impeach or destroy character or to criminalize political differences—all these have led to the disintegration of civility and the ascendancy of partisanship.

The divisions in the body politic tell but part of the story. The changing demographics of this country augur a future of rich and challenging diversity, in which no ethnic group is a majority and the boundaries of race and ethnicity may become increasingly less distinct. In an age of varied national origins and ethnic heritages, it becomes important for law to celebrate commonality as well as to appreciate difference.

And in a nation

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