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.
I must be missing something. I commented at the original post that this was far too vague to do the job of reassuring me personally.
MT,
I agree that the Balkin formulation doesn’t describe a mechanism for how moral constraints on legal argument are realized. I suppose what I found helpful in it is the reminder that the ultimate success or failure of legal argument is, in an important sense, not about the internal coherence (or the craft value) of the legal reasoning at all, but rather about the soundness of the fundamental moral commitments in the service of which the legal reasoning is used. The benefit of historical hindsight (with the passage of time that implies) is no doubt a big aid in seeing the force of the moral constraints on law. For example, history rightly judges Plessy v. Ferguson (“separate but equal”) as a legal failure, however professionally executed a bit of judicial writing craft it may have been according to then-prevailing professional standards.
And, I suppose, the other thing the Balkin formulation makes clear … if it weren’t clear already … is that those making legal arguments about one of today’s hot-button issues (such as domestic spying by the NSA) should be cognizant of the moral framework(s) people will use to assess those arguments. Indeed, perhaps the advocates should talk explicitly about those frameworks, too, since listeners will doubtless be thinking about them.
I haven’t read Plessy and can barely recall what I’ve read about it, but just considering the abstract policy at issue, I know I’ve heard people argue that integration has disserved black education in some ways, and it’s far from obviously immoral to me to argue that constitutional equal protection couldn’t be satisfied under any kind of segregation. What concerns me more is that lawyers work in good faith and don’t mislead–vague words, but ones I feel we ought to be able to understand and agree on. Outside the courtroom and and in public discourse, I want lawyers wearing a well-marked advocate hat when either the EPA or the corporate polluter is their client, and otherwise I’d like them to opine as a judge is supposed to, which I suppose entails characterizing the legal situation disinterestedly, warts and all and as they truly see it.
Make that “could be satisfied” (I tripped on my double negatives)
Comments are closed.