Why We Write Our Laws Down
S E E D E D C O N T E N T
There are issues that we should think about at least a little bit that are prior to questions of constitutional theory and interpretation, beginning with the most basic question of law: Why do we write our laws down?
I don’t ask that question facetiously. We seem to have forgotten the answer — or, at least, some of us are acting like they have forgotten it or never knew it in the first place.
The purpose of writing down a law is to fix its meaning. If you are going to live under a government of laws rather than a government of arbitrary power, then you have to know what benefits and privileges the law confers upon you and what duties and prohibitions it imposes on you. If the meaning of the law is not fixed — if, for example, you insist that your government is organized according to the principles of a “living constitution” — then you cannot know what the law is, because the law is only what some judge or functionary says it is at any particular moment. A man inclined to abide by the law can never be entirely sure that he is doing so, and he can never be entirely sure that he is breaking the law. Such an unknowable law is, properly speaking, no law at all — it does not meet the minimum requirement for functioning as law.
Another way of saying this is that law that is not fixed and knowable is only arbitrary power with a literary companion and a little democratic pretense. That is not to say that there will never be genuine, good-faith disagreements about what a law means, or that incompetent legislators will not make laws that are vague or imprecise, or that the regulations touching very complex activities will not be at times bewildering. It is only to say that judges and courts are to behave as an instrument of the law rather than using the law as an instrument of their own power for their ends, however just and enlightened they are convinced those ends are.
Professor Kramer speaks darkly of “judicial supremacy,” but of course the Supreme Court is supreme in its legitimate sphere of activity — hence the adjective supreme. We don’t require an infinitely plastic doctrine of “popular constitutionalism” to secure the sovereignty of the people — that is what democratic institutions and processes are for. There was no right to abortion lurking in the Constitution in 1973 — it was fabricated by judges acting illegitimately in the role of pseudo-legislators. There could have been such a right, and there still could be: There is a process for amending the Constitution, but that process requires more than simply getting five out of nine votes on the Supreme Court — it requires an act of Congress, ratification by the states, etc. It is a difficult process, but it has been successfully employed, for good and for ill, dozens of times.
What Klein et al. describe as “conservative” jurisprudence or “right-wing” jurisprudence — the radical view that we write down our laws for a reason, that everyone in government is obliged to follow those laws, and that making changes in the law is the business of lawmakers — is necessary not only to preserving the rule or law but also to preserving democracy.
The deal that Americans signed up for was a government of laws, not a government of arbitrary power. The making of those laws is the business of legislators, who are accountable to the people through the democratic process. If the democratic process can be arbitrarily supplanted by the preferences of five powerful judges — whether they discover their empowering principles lurking in the unwritten “penumbras” of the written Constitution or emanating mystically from the shapeless and formless “popular constitution” — then we do not have the kind of government under which the American people have consented to live. Such actions are illegitimate, and at some point the order founded on them must be understood to be illegitimate as a consequence, if things are allowed to proceed too far in that direction.
Roe v. Wade supplanted both law and democracy; Dobbs does nothing more — and nothing less — than restore law and democracy, at least so far as the issue of abortion is concerned.
Either you believe that the law is written down in order to fix its meaning and that judges are bound by this fixed meaning (in which case you, my friend, are one of those “right-wing” legal thinkers), or you believe that the courts are political actors whose job is to pursue justice as the judges in their enlightenment understand it (in which case, you can hardly complain about Dobbs). If you are an abortion proponent who concedes the legitimacy of judicial activism and you believe Dobbs to be judicial activism, then all you have to complain about is being beaten at your own game.
What our current agonies over the Supreme Court make plain above all else is the crying need for precisely the judicial attitude and practice associated with figures such as Antonin Scalia, Clarence Thomas, and Robert Bork — a jurisprudence in which the legitimacy of the courts and their judges is derived from their dedication to acting as disinterested servants of the law rather than as power-seeking political actors. That means taking phrases such as “Congress shall make no law” and “the right of the people” seriously rather than regarding them as obstacles to the incremental pursuit of some private utopia.
Of course there is a place for legal theory, for competing schools of thought, and for disagreements among scholars. But there are necessities that are prior to these: honesty, humility, duty. And the judicial activists who dominated our courts for far too long lack those things. So do most of those who decry Dobbs as some kind of unprecedented abomination rather than the long-overdue righting of a wrong, reversing an abuse of law and democracy both....
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A great synopsis of the situation:
Great article!
mass hilarity ensued.
Thanks JR. While many will deservingly point to Monty Python as great example of Absurdist Comedy, you employ the American Marx Brothers approach to the same.
Mass hilarity indeed.
Articles like this, which are definitive and dogmatic in their assessments, have a fatal flaw they cant fix. Every single Supreme Court decision that has ever existed is an interpretation of the relevant section of the Constitution. Every one. The dispute is about whether those interpretations should be guided by views of the 20th or 21st century , or views from 230 years ago.
What if America was 2500 years old instead of 250, and the constitution was written in 450 B.C. ? Would we still be hearing demands for "originalism" if the constitution referenced sacrifices of animal entrails in order to divine the will of the gods? Would we still be hearing cries for adherence to original text if the original text was written by men who crucified petty criminals and obtained water for their cities by using the force of gravity to deliver it from higher elevations to lower?
250 years is not 2500 of course but the principle is the same, things change. The world is vastly different today than it was in 1790, and the country is vastly larger. There were no minority groups of note in 1790. There was no women's movement, there was no mass transportation, there was no electricity.
Originalism is not a convincing method for determining what is best for the country , it is an argument for endless and unchanging conservatism.
Murder has been illegal for that long. Is that a bad law because its old?
The dispute is about whether those interpretations should be guided by views of t
The dispute is whether Judges are guided by what a law says, or what a Judge wishes it said.
ld we still be hearing demands for "originalism" if the constitution referenced sacrifices of animal entrails in order to divine the will of the gods?
I would imagine those provisions would be amended, or another constitutional convention would have been called. "Originalism" just means the words used in a law mean what they say. It doesn't prevent them from being changed either legislatively, if its a law, or through Amendment if its a Constitutional matter, as has happened dozens of times throughout our history when provisions become outdated or impediments
The beauty of the Constitution is it provides a democratic means for it to be changed.
, it is an argument for endless and unchanging conservatism.
How does limiting judicial overreach and allowing lawmakers elected by the people to set policy create "endless conservatism" Are you claiming Americans will be conservative forever? Or democracy is nesccarily conservative?
“Murder” itself is a legal term. It means “an unlawful killing.” In other words, there are lawful reasons why you might kill someone. Self defense, for example.
I mention this because what constitutes a legal killing can vary between cultures, jurisdictions, and even centuries. So laws against murder might not be as old as you think.
These recent decisions are what's best for the country....as a whole. Some may disagree
This is a naive fantasy. No - “naive” is too kind. I believe that both the writer and his audience must know better. This is not innocence. It’s belligerence. It’s a childish tantrum that ignores reality. By contrast, the naive person is simply unaware of reality.
The law is not like a recipe or science experiment where any random person can mix the same precisely measured ingredients and produce the exact same result. The law is chock full of vague terms like “reasonable, knowingly, intentional, imminent” and so on. Every court case requires someone to interpret the law as best they can. And every appeal is based on a disagreement about that interpretation. If it were simple, published opinions wouldn’t run dozens - sometimes hundreds - of pages.
This, at least, is true. But if you’re willing to concede this much, then you shouldn’t promote this absurd dogma about the written law having fixed meaning. In actual practice, the law means whatever juries, judges, and justices say it means. The people on the bench have myriad tools addressing that problem.
Herein lies a fundamental misunderstanding of the dynamic between government power and individual liberty. It has always been our system - written down in the Constitution and spoken of by the Framers - that people have rights that come from the Creator, not from the government. The government of the United States can infringe on those rights only where such authority is enumerated in the Constitution.
To guard against the infringement of several particularly important rights, the Bill of Rights was added to the Constitution to highlight them. However, the Framers made clear in the 9th Amendment that they did not intend those amendments to be an exhaustive list of human rights. So the absence of Abortion in the Constitution is not - or should not be - important.
The proper question with Abortion is not to look for the right to it in the Constitution. Rather, we must look for the place in the Constitution where the government has authority to infringe on that right. The notion that we should have to look in the Constitution for a woman to have a right to do what she will with her own body is insane. And so, while I agree that the right to privacy may be discerned in the way the Court outlined in Griswold, I do not actually believe it was necessary. Of course I have a right to privacy. I’m a human being and a child of God.
As we know, though, the government does have some things to say about what people do with their bodies. When such laws are challenged in the court, the government has to show that there is a government interest driving the law. If you’re conservative and you don’t think conservatives ever abuse this system, let me refer you to Gonzalez v Raich, wherein the Court held that even though states might legalize marijuana, the federal government could still criminalize it under the Commerce Clause. Anyone who tries to convince you that marijuana within a state is illegal because we need to regulate interstate commerce, probably also has a bridge to sell you.
The right of a woman to control what is happening in her body exists and should be obvious to all. A proper debate over abortion centers around the arguably competing right of a fetus to life. But just declaring “there is no right to abortion in the Constitution” is obtuse on its face.
Although I like your comment, in the practical sense people have no rights that are not recognized by law (the government).
One might claim they have a right to punch a stranger in the head, but by our way of life they dont. Some might say they have a god given right to stake out a parcel of land as their own, but until the state sanctions the claim it is worthless. Rights are really what public policy affirms, or doesnt prohibit.
I do agree with you though about people controlling their own bodies. That seems elementary.
“I do agree with you though about people controlling their own bodies. That seems elementary. “
So you were opposed to the vaccine mandate?
There’s a good example of competing interests. The stranger has a right to not be punched. The government has an interest in public safety.
But there are still conditions under which I might have a right to punch a stranger. e.g., defense of self, defense of someone else.
I honestly have no idea how you think this rebuts the author's premise. I think you thoroughly misunderstand the point if you believe is Williamson is claiming interpretation is not, in fact called allowed or that everyone will agree all the time. He literally says as much in his essay.
r law is chock full of vague terms like “reasonable, knowingly, intentional, imminent” an
So what? Take the word "intentional." It has a definition. The Judge's role is to apply that definition in good faith. Not substitute a negligence standard because he' thinks it fairer. In some cases, might some Judges or disagree over whether facts rise to the level of intentional behavior? OF COURSE! Might they write about it for pages and pages? OF COURSE
You've set up a strawman that bears no relationship to Williamson's point. The problem Williamson has is not arguing in good faith over how the word intentional applies, rather a judge looking at the statute calling for an intentional act and deciding well, a negligence standard is better.
he law means whatever juries, judges, and justices say it means.
Again, no kidding. The Supreme Court can interpret the First Amendment and rule Catholicism is the State Religion. The issue is not what Judges can do, but what should they do. Fixing a meaning to the First Amendment prevents that. Believing the Amendment doesn't have a fixed meaning makes that a possibility.
the Framers made clear in the 9th Amendment that they did not intend those amendments to be an exhaustive list of human rights. .
Not a single justice has ever found the right to an abortion hiding in the ninth Amendment. You are making Williamson's point for him by demonstrating the arbitrary nature of the supposed right to an abortion. Nothing can be so important as a supposed constitutional right that will remove a contentious issue from the democratic process and yet its proponents can't even articulate a consistent rationale for its existence.
So the absence of Abortion in the Constitution is not - or should not be - important.
Of course it is. If what the Constitution says isn't important, why have one?
The notion that we should have to look in the Constitution for a woman to have a right to do what she will with her own body is insane.
As you know the Court has never held that anyone has the unlimited right to do what they will with their own body. It seems insane to think otherwise.
ne who tries to convince you that marijuana within a state is illegal because we need to regulate interstate commerce, probably also has a bridge to sell you
No doubt. But the commerce clause simply gives the government the power to democratically enact a law or not. It doesn't demand an outcome either way. .
“there is no right to abortion in the Constitution” is obtuse on its face.
Lol. When you can't get over a hurdle, just summarily dismiss it as unnecessary. Arguing by conclusion is easy.
I wouldn’t say that so unequivocally. The right to abortion derived from the right to privacy, established in Griswold v Connecticut. Though the majority declined to use it, in his concurrence, Justice Arthur Goldberg (along with Justice William Brennan and Chief Justice Earl Warren) identified the privacy right in the Ninth Amendment. Later in Roe, the district court, and also the SCOTUS majority, embraced this idea and applied it to abortion.
And to restate, the whole point of the Ninth Amendment is that rights aren’t “hiding” anywhere. They exist and are reserved to the people, even if the Constitution does not mention them. As Justice Goldberg wrote, your approach that we must find the right to abortion explicitly in the Constitution would actually violate the Ninth Amendment.