Higher Law

On a libertarian list, a fellow listmember disagreed with me about whether one should, if on the Supreme Court, refuse to enforce an unjust law. I had written,

BTW, I also have no problem with the Courts “striking down” any other actions of the other branches of the federal government–even “constitutional” ones. If I were on the Court I would probably refuse to enforce tax convictions, for example. But I would do so on moral, not constitutional, grounds.

His reply: “This is the problem. You would do the same goofy crap that that liberals do when they get on the bench — “Certainty and stability of law be-damned! I’m going to finagle this until I get he results I want in every case!”

But I’m a libertarian. I would refuse to take part in murder. I reject the idea that “The legal system is in shambles because liberal assholes have been doing this crap for generations.”

I reject this relativist thinking (equating libertarians and liberals). The problem is not “activist judges.” The problem is socialist people.

So, I gave him this simple question: you are on the Supreme Court, and a case comes before you of someone challenging their incarceration (say, for life) for income tax evasion. Now you and I know that this could be legal, and it would also be constitutional.

Would you uphold his conviction, and help sentence this innocent victim to a life in prison? Or, would you refuse to do something immoral and criminal like this?

I think I would just refuse to vote to put someone in jail: and my reasoning might be something like,

“My fellow Justices–my countrymen: The income tax statute may be constitutional; but just as legislation can override the common law; just as the Constitution is a ‘higher law’ than mere legislation; so there is a higher law than the Constitution. We judges are human beings, not mere robots, nor mere functionaries blindly applying whatever positive law may be, no matter how egregious or unjust. A Justice of the Supreme Court is not merely a judge, but a Constitutional Officer on the same level as the Executive and Legislative branches; he is one of the last resorts of the citizen pleading for relief from potentially unjust laws of the state. Jurors can judge the law as well as the facts and refuse as fellow citizens to convict someone they believe is not a wrongdoer. Can a Justice do less? Can he uphold manifest injustice? Can he partake in murder and kidnapping? No. He cannot. I certainly cannot. Yes–I took an oath to the Constitution but I took this oath because of a deeper allegiance to justice itself. So if there is a conflict between justice and the Constitution–the Constitution be damned. I will not participate in murder, or crime against the innocent. I dissent. “

What would you do?– “While I myself as legislator or voter would not favor this legislation, and while I regret the 16th Amendment was ratified, I have no choice but to vote to put Mr. Smith in jail. Ruining his life is a price worth paying so that I can stay on the bench and continue to do …. well, not justice, but continue to help enforce whatever positive law happens to be in place. For without positive law enforced by the state, where would we be?”

Update: see also

• Another Problem with Legislation: James Carter v. the Field Codes (Oct. 14, 2009)

One could argue that you should abide by “the law” and convict, using reasoning similar to this:

Bolt, in a familiar passage, has More say when assailed by his son-in-law with the charge that he would give the devil the benefit of law:

MORE: Yes. What would you do? Cut a great road through the law to get after the devil?

ROPER: I’d cut down every law in England to do that!

MORE: Oh? . . . And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? . . . This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down . . . d’you really think you could stand upright in the winds that would blow then? . . . Yes, I’d give the Devil benefit of law, for my own safety’s sake.

But that concerns law—real law, natural law, just law, law aimed at doing justice. Not fake law, artificial law, decreed “law,” statutory “law,” democratic law. The positive law is supposed to be at least based on the attempt to discover and apply principles of justice. If it is just made up rules decreed by a government committee (such as statutory law enacted by a legislature) then it has nothing to do with justice or genuine law. It deserves no respect. Contra some libertarians, ¹ statutory, positive law deserves no respect, is not real law (likewise: federal judges are not real judges; they are not doing justice or interpreting or developing private, common law: they are merely interpreting statutes), and there is no moral obligation to obey such “law”; it has no presumption of legitimacy.

1. See, e.g. Randy Barnett, The Structure of Liberty: “legal rights generated by a sound legal process may even be entitled to presumptive legitimacy”; critiqued in my review essay here, n. 28 and accompanying text. See also Barnett, “Getting Normative: The Role of Natural Rights in Constitutional Adjudication,” Constitutional Commentary 12 (1995): 93–122; M.B.E. Smith, “Is There a Prima Facie Obligation to Obey the Law?,” Yale L. J. 82, no. 5 (Apr., 1973): 950-976; Christopher Heath Wellman & A. John Simmons, Is There a Duty to Obey the Law? (Cambridge, 2005). [↩]