Law classes for non-lawyers sometimes begin by addressing this question: What is the law? It’s not a philosophical question: We really do need to know where we would look if we wanted to know what are the legal demands our government makes on us.
If someone has put a lot of thought into the question, they will sometimes point to statutes—the formal rules adopted by legislative bodies as the source of the law. Another might point to the Constitution, the basic charter for determining how laws will be made.
It gets more complicated from there. We know that the other branches of government have something to do with it but precisely what is not always clear. So we take a few minutes to talk about things like administrative regulations, the voluminous body of rules made by administrative branch agencies that purport to apply the statutes to specific circumstances. These rules have mushroomed, at times because Congress specifically punts to the agencies difficult decisions of enforcement and application. We don’t usually talk about how advisory opinions or “dear colleague” letters from these agencies also take on the force of law.
Then there’s the Supreme Court. We know they go around striking down laws here and there but how exactly is that “the law?” The answer is that when the Court hears a dispute, they have to decide how to apply the other sources of law to a specific situation. They don’t just vote up or down, though, they issue “opinions” about how a law should be interpreted and those opinions become binding rules in future cases involving the same issue.
So, if you want to find out what the law is, you have a lot of places to look.
This is important because it’s really crucial that we can know what the laws are. (Of course, it will increasingly take specialized legal help to sort through all these sources.) It’s at the foundation of our concept of the rule of law. Laws need to be reasonably consistent; their application has to be predictable; they have to have be made in a way that ensures some accountability. Without these kinds of attributes, law becomes tyranny — made at the whim of a ruler or group of rulers, subject to change at any time, applied randomly. Under these conditions, one cannot be sure he or she is not doing something that may run afoul of the law.
When John Adams created a constitution for Massachusetts in 1780, he included a strong protection of the principle of separation of powers — each branch of government must fulfill its role and not those of other branches — and tied it explicitly to the rule of law: “to the end it may be a government of laws and not of men.” That’s an admirable summary of the concept. Under the rule of law, legal principles apply to everyone consistently.
Which brings us back to the Supreme Court.
What happens to the rule of law when the Court interprets a statute to mean something significantly different than the language of the statute says? What happens when the Court’s opinions are marked by vague, philosophical pronouncements, the meaning of which is almost impossible to tie down?
Thus, just a few weeks ago, the Court said that a provision of the Constitution ratified in 1868 to end disparate treatment based on race required each state to redefine marriage. That opinion began with this statement: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Later, the Court said: “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”
It’s impossible to imagine exactly how this analysis could apply in any other context. What is the limiting principle for a right to “define” your identity or to “express” it? Could the Framers of the Constitution really have meant to write a blank check to future generations to “learn” the meaning of its provisions and change it at will? Why would they have bothered to write anything down if so?
People ask whether this decision will lead to legal recognition of group marriages or similar innovations. It’s a reasonable question since surely there’s no limit to what a person can claim as self-definition. But the process of deciding this case makes the outcome really impossible to predict. The Court’s language could mean anything, the only thing it preserves is the discretion of Court majorities to do what they would like in future cases.
However you feel about the result, surely this is not a good precedent.
For Sutherland Institute, I’m Dave Buer. Thanks for listening.
This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found below.
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