In the wake of the mid-December revelations of the NSA’s domestic surveillance program (and here’s the latest, reporting that Deputy Attorney General James Comey refused to approve certain aspects of the program), I have found Marty Lederman’s and Jack Balkin’s many posts at Balkinization to be especially illuminating and provocative.
In a more reflective post yesterday, discussing the relationship between lawyers’ willingness to argue various sides of contested social practices, Prof. Balkin arrives at the question, “what restrains lawyers from being the most shameless tools of interest, or power, or both?” He points to two restraining forces: the broader moral framework within which the legal arguments succeed or fail, and the distinctly lawyerly devotion to formalities and procedures (insistence upon which “sometimes gets in the way of the most outrageous things that powerful people want to do”).
When describing the deeper, broader moral matrix that surrounds (and ultimately ratifies, or not) legal argument, Prof. Balkin makes two statements that capture a vital truth about law’s subservience to morals: (1) “If the moral opinions of a time are deeply corrupt, the law is unlikely to be far better.” (2) “[T]he law always needs help from other sources in political culture if it is to do its job appropriately. The rule of law, I would insist, is not a purely legal or professional ideal — it is a political ideal that demands that power be checked, circumscribed and made accountable in fair and publicly knowable ways.”
It is bracing to reconnect to this vital truth at the start of a new year. Thank you, Balkinization!
UPDATE 1: Prof. Orin Kerr explores today’s story about Deputy Attorney General Comey’s disapproval of part of the NSA surveillance program.