I emphasize this point because



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The legal education they create is utterly ineffectual and reinvests fidelity in the Law – only a prior rejection of that faith can resolve their impacts


Jack Balkin 98, Lafeyette S. Foster Professor @ Yale Law “Agreements with Hell and Other Objects of Our Faith – Part II,” http://www.yale.edu/lawweb/jbalkin/articles/agrhell2.htm/

I emphasize this point because we might think that one answer to the problem of constitutional evil is to take constitutional idealism seriously: By discussing and arguing about the Constitution among ourselves, legal academics can contribute to the constitutional tradition and change its trajectory. We can be the masters of our own constitutional destiny.(51) This solution to the problem of constitutional evil is appealing because it envisions legal academics as having a significant effect on the Constitution. By writing about the importance of justice in constitutional interpretation, by engaging in an ongoing conversation with others about the meaning of the Constitution, they can actually make the Constitution more just. Yet this is a fool's errand for most of the law professors who write and think daily about the Constitution. It is a confusion of their role with the role of the Supreme Court Justice.(52) Even if participating in arguments about the Constitution is a possible solution to the problem of constitutional faith for Justice Story, it is not a possible solution for the vast majority of American law professors, or, indeed, the vast majority of American citizens. The articulation of constitutional ideals by different parties may look grammatically identical but its social meaning and social effect is quite different.(53) The construction of constitutional systems by the average law professor at the average American law school has only a minuscule effect on the direction of the Constitution's meaning. For them, as for most Americans, constructing a Shadow Constitution is shadow boxing. It does not avoid the real problems of constitutional faith. Justice Story's faith in the Constitution is importantly different precisely because he is able to turn the Constitution to the path of what he regards as just. Of course, the very fact that Story was presented with a case like Prigg shows that even Supreme Court Justices have limited control over events that affect the Constitution's meaning. And in any case, he does not act alone - he must convince four of his other colleagues. But these limitations on Justice Story simply support the larger point I wish to make: To have faith in the Constitution is to have faith in an ongoing set of institutions whose meaning the individual will not be able to control. Most of us participate only in the great mass of public opinion that eventually affects the meaning and direction of the Constitution; our views are like a drop of water in a great ocean. We cannot mold the object of our faith to our will; its eventual trajectory is largely out of our hands. And what, then, if our constitutional faith is shaken? What if we come to believe that fidelity to the Constitution will not eventually achieve social justice, but that it will, on the contrary, preserve and even expand pervasive social injustices? It would be like discovering that the God we worshiped was not in fact good but was indifferent or even evil; that He did not care about us or about our well being and might be actively hostile to us. Should we have faith in such a God at that point? Should we even come to doubt His existence? It is no accident that one of the most difficult arguments put forward by atheists against the existence of God is the Argument from Evil. Explaining the existence of evil, and constructing theodicies, has been a constant task for generations of theologians.(54) Of course, there is no question of not believing in the existence of the Constitution. But we might well doubt whether our Constitution deserves our fidelity, just as we might come to wonder whether the god we thought we were worshipping was actually a demon.

Reliance on the law exonerates the individual of responsibility and evacuates value to life by making all guilty


Diego Rozo 4 (, MA in philosophy and Cultural Analysis, “Forgiving the Unforgivable: On Violence, Power, and the Possibility of Justice” p 19-21

Within the legal order the relations between individuals will resemble this logic where suffering is exchanged for more, but ‘legal’ suffering, because these relations are no longer regulated by the “culture of the heart” [Kultur des Herzens]. (CV 245) As Benjamin describes it, the “legal system tries to erect, in all areas where individual ends could be usefully pursued by violence, legal ends that can be realized only by legal power.” (CV 238) The individual is not to take law in his own hands; no conflict should be susceptible of being solved without the direct intervention of law, lest its authority will be undermined. Law has to present itself as indispensable for any kind of conflict to be solved. The consequence of this infiltration of law throughout the whole of human life is paradoxical: the more inescapable the rule of law is, the less responsible the individual becomes. Legal and judicial institutions act as avengers in the name of the individual. Even the possibility of forgiveness is monopolized by the state under the ‘right of mercy’. Hence the responsibility of the person toward the others is now delegated on the authority and justness of the law. The legal institutions, the very agents of (legal) vengeance exonerate me from my essential responsibility towards the others, breaking the moral proximity that makes every ethics possible.20 Thus I am no longer obliged to an other that by his/her very presence would demand me to be worthy of the occasion (of every occasion), because law, by seeking to regulate affairs between individuals, makes this other anonymous, virtual: his otherness is equaled to that of every possible other. The Other becomes faceless, making it all too easy for me to ignore his demands of justice, and even to exert on him violence just for the sake of legality. The logic of evil, then, becomes not a means but an end in itself:21 state violence for the sake of the state’s survival. Hence, the ever-present possibility of the worst takes the form of my unconditional responsibility towards the other being delegated on the ideological and totalitarian institutions of a law gone astray in the (its) logic of self- preserving vengeance. The undecidability of the origin of law, and its consequent meddling all across human affairs makes it possible that the worst could be exerted in the name of law. Even the very notion of crimes against humanity, which seeks to protect the life of the population, can be overlooked by the state if it feels threatened by other states or by its own population.22 From now on, my responsibility towards the Other is taken from me, at the price of my own existence being constantly threatened by the imminent and fatal possibility of being signaled as guilty of an (for me) indeterminate offence. In this picture, the modern state protects my existence while bringing on the terror of state violence – the law infiltrates into and seeks to rule our most private conflicts



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