pixabay.comThe Pervasive and Elusive, Momentous and Mysterious Law (Part 1 of 3) Bruce K. Adler Politics & Economics, Society & Culture At every step the history of civilization teaches us how slight and superficial a structure civilization is, and how precariously it is poised upon the apex of a never-extinct volcano of poor and oppressed barbarism, superstition and ignorance. Modernity is a cap superimposed upon the Middle Ages, which always remain. — Will Durant, The Story of Civilization, vol. 1, Our Oriental Heritage Durant’s sobering observation hangs over us today even if we consider only the very short history of our new century and millennium. Civil wars, sustained terrorism, growing inequality, and changing climates are conspiring to unsettle the social, political, and economic orders in much of the world. An air of fragility presses down on us. In these circumstances the notion of modern civilization’s being a “cap” on our baser human nature is reassuring – given the heights of modern culture – but all the same worrying – given the downfall of more than a few great societies and cultures in history. We should care to know, then, just what this “cap” is in essence. In particular, how it works to batten down or hold off an ever-awaiting chaos. Durant offered a related observation about that, too. “Law and myth have gone hand in hand throughout the centuries, cooperating or taking turns in the management of mankind; until our own day no state dared separate them, and perhaps tomorrow they will be united again.” (Durant, Our Oriental Heritage.) Also sobering, the implication is that (for now) law is the primary “overseer” of modern civilization. The comparative mythologist and writer Joseph Campbell agreed and underscored the same about American society in noting that it has no overarching mythology as such, nor even a shared ethos: “[I]n America we have people from all kinds of backgrounds, all in a cluster, together, and consequently law has become very important in this country. Lawyers and law are what hold us together.” (Joseph Campbell, with Bill Moyers, The Power of Myth.) That law is ubiquitous in our time and has been present throughout much of the history of civilization should be proof enough of its importance and even necessity. Also telling is that as the so-called Dark Ages waned, the study of law (in particular Roman civil law) quickly became a principal curriculum in many of the rising universities in a reformed and recovering Europe. Certainly law’s influence is momentous today. And being so integral to social, political, and economic order, it is simply indispensable for the maintenance of modern civilization. It is the major constituent of Durant’s “cap”. But how should we comprehend this “thing” that so many of us blithely call “the law”? For a fair amount of the nature and the substance of law turns out to be elusive and rather mysterious. And that is the case not only for the lay person, but also for the scholar and, yes, even the judge and the lawyer. Indeed, the descriptive terms “dark matter” and “dark energy” used in theories of physics would not be so out of place if also applied to the study or practice of law. That may strike you the reader, especially if you are a lay person, as hyperbole, but if so perhaps because you see the law as a voluminous and thus tedious collection of constitutions, statutes, ordinances, regulations, and legal rulings. In effect, “a body of knowledge” that serves to define and distinguish between obedience and disobedience within common society. And also, as a practical matter, a very long list of “rules” that, whether you like it or not, you must take account of and conform to, time and time again. Alternatively, you may be just cynical about the legal system. You tend to believe that it mostly boils down to political skirmishes over ideologies, special interests, wealth, or just plain egos, with lawyers being no better than “hired guns” and judges putting on shows of pretension. Moreover, you may think that the adversarial character of law with its lawsuits has run amok, to the point that the entire system must be “rehabilitated” into a less confrontational and more cooperative enterprise that strives for mutual understanding and “sensible” agreement. But in truth “the law” is neither as dully static nor as absurdly partisan as all that. What it is is far more dynamic and challenging while aiming to be well-settled. Here, then, is an inkling of the essential nature of “the cap”, which we want to understand. It is not rigidly stable at any given moment, but is capable of stability over time in being constantly refreshed or reformed. To appreciate that further, we must take a closer look at law’s dynamics and so shall zero in on one of the greatest legal systems in history (and what has been my bailiwick) – that of the United States of America. The most powerful and overarching form of law in America, as well as in many other democratic nations, is of course constitutional law. I do not intend, however, to go into an extended review of the many provisions of the U.S. Constitution. Instead, I want to touch on just one case decided by the U.S. Supreme Court that is instructive. In 1965, the Court handed down a landmark ruling in Griswold v. Connecticut. At issue was a long-standing Connecticut law that prohibited the use of – and even medical advice about – contraceptives. The legal question brought to the Court was whether this law violated the Fourteenth Amendment of the U.S. Constitution, and specifically the Due Process Clause of that Amendment, which states: “No State shall … deprive any person of life, liberty, or property, without due process of law”. By a 7-2 vote, the Court ruled that the state law was unconstitutional. (Making up the majority were Chief Justice Warren and Justices Douglas, Clark, Goldberg, Brennan, Harlan, and White; Justices Stewart and Black were the dissenters.) All seven justices in the majority held that the law unjustifiably infringed upon the liberty of married couples, and six of them further held that the law violated the “right of (marital) privacy.” Such a right, however, was not to be found among those expressly stated in the Constitution (like “freedom of speech”); instead, this right to privacy was an implied right derived from the Constitution’s written text. This circumstance alone was not what made the Griswold case famous. The Court in prior cases had recognized other sorts of implied rights. But it was in Griswold that the majority of justices stressed the need to protect such implied rights as vigorously as those rights expressly stated in the Constitution. That forthright stance begged the critical question of how such implied rights can be credibly “discovered” in the Constitution’s text. And the opinions in Griswold further highlighted the concern since the seven justices did not fully agree on exactly what text gives rise to the right of privacy. Their differing views give us a revealing snapshot of fundamental law in flux. Five of the seven (Douglas, Clark, Warren, Goldberg, and Brennan), who formed the main majority opinion, derived the right of privacy from the explicit guarantees of the Bill of Rights (being the first ten amendments to the Constitution). They reasoned that, among other examples, the First Amendment’s freedom of speech (which in a past case was held to imply a right of association), the Fourth Amendment’s injunction against unreasonable searches and seizures, and the Fifth Amendment’s right against self-incrimination created “zones of privacy”. And such privacy, they argued, is essential for all these guarantees to work in practice. As they explained it: “[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” (Emphases added.) The right of privacy was therefore one more such right that existed in the “penumbra” of the Bill of Rights. But three of these same justices (Goldberg, Warren, and Brennan) also wrote a separate, concurring opinion in which they emphasized the Ninth Amendment of the Bill of Rights, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” These three justices were concerned that “[t]o hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever.” In other words, these three justices did not believe that implied rights could be derived only from the expressly stated rights in the Constitution; the Ninth Amendment alone implied that others existed. The sixth justice (Harlan) wrote his own concurring opinion, objecting that the other five justices apparently believed that “the Due Process Clause of the Fourteenth Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights,” including the Ninth Amendment. In sum, he did not believe that implied rights could be found only within or on the basis of the Bill of Rights. He went on to argue that the concept of due process in the Fourteenth Amendment effectively stood “on its own bottom,” and that it included any and all rights, like privacy, that are “implicit in the concept of ordered liberty.” What he took that phrase to mean can be found in a prior, related case where he gave an extended and what is still regarded today as a classic overview of due process – Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that, through the course of this Court’s decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.… It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of constitutional provisions, since that character must be discerned from a particular provision’s larger context. And inasmuch as this context is one not of words, but of history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, … and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. The seventh justice (White) also wrote a separate, concurring opinion. He relied on prior cases that defined the term “liberty” in the Due Process Clause to include the right to marry and to have children and that generally recognized a “realm of family life which the state cannot enter” except where there is a “substantial justification” to do so. He then focused – to a greater extent than the other justices – on whether Connecticut had a good reason for enacting such a broadly worded statute, and concluded that it did not, which decided the matter in his view. He thus avoided taking any specific legal position on the newly asserted right of privacy. As for the two dissenters, both strongly felt that the Connecticut law was “silly” and even “asinine”, but both also believed that there was no constitutional basis for a right of privacy. As Justice Stewart concluded: “With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.” Now from the foregoing you may think that here we have a revealing example of how judges essentially concoct the law as they go along. For how is it that nine people can agree that a given law is ridiculous on its face yet disagree whether to strike it down, and how can seven people agree to overturn that law on the basis of a general principle yet fail to agree on the precise formulation and application of that principle, unless, of course, there is no objective truth of the matter – no well-settled or wholly convincing legal basis – to be had here, which therefore requires resort to subjective rationalization? Well, you can draw that conclusion if you wish, but if your impression is along the lines that when it comes to legal decision-making “anything goes,” you are quite mistaken. The reality is that the legal reasoning in Griswold was the product of decades of legal reasoning in many other cases decided by past justices of the Supreme Court as well as judges of the lower courts. In general, law is the cumulative product of past to present social and political thought. (The idea of due process is a grand example, for its history goes all the way back to the Magna Carta in 13th century England, with its legal effect in that time being very weak indeed.) In this way the bulk of law is intellectually weighted and anchored in both experience and reason as much as any concept or principle can be. Such intellectual heft is a quality about “the law” that must never be underestimated for it is always at work, reexamining and refining itself. And in case you are wondering – and I hope you are – the three constitutional theories on the “right of privacy” in Griswold have since been reduced to one: Justice Harlan’s approach, more generally known both before and after his contributions as “substantive due process.” All the same, you may be thinking that all this explication that lawyers and judges engage in is much more form than substance, because in any given case courts are going to do what they want to do – case closed! But all this reasoning in law is neither a façade for, nor the result of carefree rationalization. In fact meticulous and often driven, it is due to the demanding nature of law. Consider constitutional law again. There is just no denying and moreover no avoiding that the bare terms “freedom of speech”, “unreasonable searches and seizures”, “cruel and unusual punishments”, “due process”, and so many others truly want for more than a little reflection and explication. As Chief Justice John Marshall famously wrote in one of the Court’s early cases: “[W]e must never forget that it is a Constitution we are expounding.” (Emphasis in original and emphasis added.) But the fact is that just about every law has to be expounded to some degree if it is to work, since in the face of real life not every implication and related meaning of a given law’s formal text readily leap off the page. And so that text must be as intelligently and coherently interpreted as possible if it is to have any chance of managing real life whose vagaries “strive” to prevent that. Thus, perforce, there is within even the most carefully drafted law – whether constitution, statute, ordinance, regulation, or legal ruling – yet “hidden”, or dark, text. And, in turn, the work of the courts in deciding whether and what “dark text” exists and how to apply it gives rise to a “dark synergy”. For the impact that such well-considered resolutions of each and every case will have on the understandings of the circumstances and legal issues of future cases and how then their resolutions will impact the application of law in still other cases, and so on, can be neither well-aimed nor wholly predicted. All that sounds so impressive and at the same time daunting, right? But that it only “sounds” so is still a problem in helping you to understand the true nature of law and by extension Durant’s “cap”. In the second part of this essay, I will try to remedy this shortcoming. Allow me to offer my “Congratulations!” ahead of time. You are going to become a trial court judge. And you will have to make an important legal ruling. A case pending before you has a pressing issue that must be decided before you even consider having a trial. I think you will find the matter absorbing. No need to worry, though – as your trusty “law clerk”, I will summarize the basic law you need to know, and I can tell you now that the legal principles will be commonsensical and that the facts of the case are surprisingly uncontested and straightforward. Best of all, though, you will also have the benefit of some incisive thinking on the part of the two (opposing) lawyers who will be arguing the case to you. In the meantime, take heart from the experience and wisdom of Oliver Wendell Holmes, Sr. (the father of Supreme Court Justice Oliver Wendell Holmes, Jr.): “Many ideas grow better when transplanted into another mind than in the one where they sprang up.” (Holmes, The Poet at the Breakfast-Table.) Featured image courtesy of Pixabay.