Why We Write Our Laws Down

B ecause of the Dobbs decision, there is at the moment a great deal of talk about different theories of constitutional interpretation and the legitimate role of the Supreme Court. For an especially unedifying example that I’ll return to below, try getting through this borderline-nonsensical discussion between Ezra Klein and Professor Larry Kramer, whose “popular constitutionalism” is only our ancient enemy, the “General Will,” in a very poor disguise — Rousseau goes to Stanford law.

But 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.

And to that extent I am perfectly willing for the Senate to demand (baleful cliché) that nominees to the Supreme Court and other federal benches pass a “litmus test”: If a nominee cannot explain why we write down our laws in the first place and what that means about the power of judges and their range of legitimate action, then that nominee should not be a judge on any court. We write down our laws to fix their meaning as an alternative to the rule of arbitrary power — that is a “conservative” judicial philosophy, I suppose.

But it should be everybody’s philosophy.