Upholding the Law: Is it the Attorney General’s Job to Help Argue for Laws that are Not Inherently Moral, and How Is The Line Drawn?

On April 20, 2013 we attended a panel discussion about the impact of Edward Levi on the office of United States Attorney General. (Edward Levi was the 71st Attorney General, serving from 1975 to 1977. He was recruited from the University of Chicago by President Gerald Ford to bring transparency, independence and integrity back to the Justice Department after the debacle of Watergate.) The evening began with formal remarks by the current (and 82nd) U.S. Attorney General Eric Holder. These were followed by a discussion moderated by Geoffrey Stone and featuring the former (79th) Attorney General John Ashcroft, as well as Jack Fuller, the Pulitzer Prize winning journalist who served as a Special Assistant to Levi and is now the editor of a new collection of his speeches (Restoring Justice: The Speeches of Attorney General Edward Levi, University of Chicago Press, 2013).

The event quickly became politicized however, beginning with the somewhat-of-a-stump speech by AG Holder, who did, however, manage to deliver a wonderful paean to Levi. Perhaps Holder’s most controversial remark came when listing the Obama Administration Justice Department achievements, among which he included the decision not to support the Defense of Marriage Act before the Supreme Court. (The Defense of Marriage Act, known as DOMA, which passed by overwhelming margins in both houses of Congress in 1996 and was signed by President Bill Clinton, bars federal agencies from recognizing the validity of same-sex marriages in the states where they are legal.)

Eric Holder at University of Chicago, April 20, 2013

After the panel session ended, some audience members stayed behind to continue the discussion. A number expressed outrage that Holder would not uphold the laws he was sworn to uphold (such as DOMA) in his capacity as the nation’s top lawyer. The dialogue then segued into a debate over the importance of the Rule of Law vis-à-vis laws that appear, at least to some people, to be patently unjust. Historically, these tend to have been laws that have facilitated, enabled, or encouraged discrimination against discrete minorities, such as Jim Crow laws, and even the Dred Scott decision by the Supreme Court. The “Rule-of-Law Camp” opined that, if we all were free to act upon our own preferences or even consciences, there would be no “law” nor even any point for a body of law.

However, strong counterarguments were profferred as well. First of all there is the notion that one can in fact reference an inherent concept of morality or justice that is the basis for all systems of duty and obligation. As John Rawls famously wrote in A Theory of Justice:

Each person possesses an inviolability founded on justice that event the welfare of society as a whole cannot override. Therefore in a just society the rights secured by justice are not subject to political bargaining or to the calculus of social interests.”

And yes, Lincoln famously maintained that he would defend the Fugitive Slave Acts because they were the law of the land, but he made every effort, both above and below the table, as it were, to make sure those acts were struck down or nullified in practice. Similarly, he averred that he could not free the slaves because the Constitution seemed to recognize slaveholders’ property rights in their slaves, and the 5th amendment guaranteed those rights could not be abridged without due process of law. But he used his knowledge of the intricacies of the law, his courage, his faith in morality, and his audacity to find a way around that barrier as well.

Other controversies enlivened the proceedings. It was clear during the Q&A session that the presence of AG Ashcroft was seen as an opportunity to assail the policies of the Bush Administration – particularly regarding Guantanamo. Ashcroft, clearly affected, took up the challenge in the little time he could. In addition to the specific defenses he made, he emphasized several times that if the public has a problem with the President and/or the Administration, they have a remedy every four years.

As for the Rule of Law argument, our own view is that we should endeavor to remember that as much merit as there is in adhering to “the Rule of Law,” one mustn’t reify that concept to the extent that it escapes all context. Specific interests from political, economic, religious, and/or class perspectives and values go into the formulation of laws, and these interests can bias social, political, and/or economic outcomes, no matter how “facially neutral” the law may appear or how “non-intentional” any invidiously harmful consequences. In the case of DOMA, the discriminatory effect of the law is not even obscured. Moreover, as Eric Posner observes in “How the Law Should Deal with Dzhokhar Tsarnaev” (posted on Slate.com April 22, 2013), “…criminal procedural rights [and other laws and precedents] [are] cobbled together over decades by fallible judges, who [are] responding to the needs of the time.”

Should constitutional or congressional evil be upheld? As Sanford Levinson wrote, “…one person’s notion of justice is often perceived as manifest injustice by someone else…” (Constitutional Faith, Princeton University Press, 1989). But that doesn’t mean that on occasion there really is a clear demarcation between the just and the unjust. A mechanistic view of the legal system only enables responsibility for results to be externalized, and for responsibility for the ensuing harm to be evaded. As the constitutional scholar Charles Black proposed, “Let us use the right not to be discriminated against as a fundamental yardstick. Let us reach beyond institutionalized phrases and blind obeisance to “rules” when those rules may require us to hurt others. Let us once again take up the mantle of the Declaration of Independence, and make a commitment to help everyone in society pursue their own vision of happiness, as long as it doesn’t harm anyone else.

But you can draw your own conclusions. The University of Chicago has provided a video recording of the entire event, which is well worth your time, and may inspire you to “join the conversation” (paraphrasing Reverend Al Sharpton every night on MSNBC).

Note: On June 26, 2013, the Supreme Court declared that the Defense of Marriage Act was unconstitutional in United States v. Windsor