Justice and the Rule of Law

Radley Balko asks a difficult question: What should we do when our conception of justice differs with the rule of law? Specifically, the Mayor San Francisco recently violated state law by broadening the institution of marriage to include homosexuals.

As I've argued elsewhere, in a perfect libertarian world, marriage would be privatized and we wouldn't have to decide whether it should extend to both heterosexuals and homosexuals. But we don't live in such a world. Similarly, in a perfect libertarian world, politics would be privatized and we wouldn't have to decide whether voting should be extended to men and women, blacks and whites. But we don't live in such a world.

As long as we live in a second-best world, with a government which maintains a legal monopoly on the use of force, this government should treat people equally under the law, without regard for gender, race, ethnicity, country of origin, religion, sexual orientation, or any other factors that are not immediately relevant to the task at hand. Of course, there are exceptions to equal treatment under the law in a second-best world, and for good reason. For example, if the government must choose a private contractor to build a road, it is reasonable to allow the government to discriminate based on price - the contractor who offers to build the road for the lowest price can legitimately be favored over those contractors who are more expensive. But it is not reasonable for the government to discriminate among contractors based on race, as it did in Adarand Constructors, Inc. v. Pena, 515 US 200, 227 (1995).

So, if you believe, as I do, that government discrimination based on race is just as wrong as government discrimination based on sexual orientation, then Radley's analogy holds: a mayor who violates state law by decreeing that public facilities shall be integrated is no different than a mayor who violates state law by decreeing that the institution of marriage shall be extended to homosexuals.

But what about the rule of law? [At this point, I can hear the Walter Sobchaks of the world screaming, "Has the whole world gone crazy? Am I the only one who gives a shit about rules?"]

There are good reasons to respect and adhere to the rule of law. It allows people to coordinate their efforts and predict the outcomes of their actions. It provides a stable basis for society and, at least theoretically, a restriction on government power. Even if we think a law is wrong, it can be changed through the political process. The rule of law is our friend.

But what happens when the rule of law contradicts our conception of justice and actively promotes injustice? At the risk of violating Godwin's Law, what if you were living in Nazi Germany and the law stated that every citizen has an obligation to tell the police if they know of any Jews in hiding. Would you still respect the rule of the law? I don't think most of would, knowing what we know now. So clearly, there is some point at which we are willing to let our conception of justice trump the rule of law. But what is that point? Where do we draw the line and say enough is enough?

Our legal system doesn't do a good job of addressing this issue, as the founding fathers didn't specify exactly who should deal with unconstitutional acts. It was not until 1803, in the case of Marbury v. Madison, that the Supreme Court established its own power to invalidate laws enacted by any branch of government which it deemed unconstitutional. Marbury was decided during the first term of President Thomas Jefferson, but Jefferson

strongly opposed Judicial Review because he thought it violated the principle of separation of powers. He proposed that each branch of government decide constitutional questions for itself, only being responsible for their decisions to the voters.

Here are a few legal quotations which touch upon the question:

"All laws which are repugnant to the Constitution are null and void."
- Marbury vs. Madison, 5 US (2 Cranch) 137, 174, 176, (1803)

"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."
- Miranda vs. Arizona, 384 US 436 p. 491.

"An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation. As inoperative as though it had never been passed."
- Norton vs. Shelby County 118 US 425 p. 442

"The general rule is that an unconstitutional statue, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it...No one is bound to obey an unconstitutional law and no courts are bound to enforce it."
- 16 Am Jur 2d, Sec 177 late 2d, Sec 256

One argument in favor of Marbury is that the question of whether a certain law is constitutional or not must be made by someone, and leaving this decision up for individual citizens to decide is a recipe for chaos.

(Let's ignore for a moment the troubling fact that we were never given the ability to consent to this deal. Randy Barnett claims to have answered this objection, originally credited to Lysander Spooner, in his new book, Restoring the Lost Constitution. I have not yet read this book, as it is in the mail, but I am skeptical that Barnett will be able to overcome Spooner's argument.)

So, bottom line, what should we as individual citizens do?

I think the answer must be based on pragmatism. There can be nothing morally wrong with breaking an unjust rule, especially when the following the rule would be immoral. We must decide what the best course of action is, depending on our own circumstances, our willingness to take risks and the likelihood of achieving success. I may not be willing to fight a one-man revolution against my oppressors, because that would be foolish and accomplish nothing. But I am more than willing to skirt the law when the benefits outweigh the costs. Speeding, gambling, jaywalking, using illegal drugs, prostitution - all of these are illegal, but morally justified. It is silly to jaywalk when a policeman is standing right across the street, but it may be worth the risk in other circumstances. Zombyboy takes a similar approach.

But there is an additional problem with the two examples Radley cites. These are not just cases of private citizens engaging in civil disobedience; rather, these are public officials who have sworn to uphold the law. On the one hand, they knew what they were getting into, and if they didn't agree with the laws they would be required to uphold, they should not have taken the job. On the other hand, perhaps they reasoned that the best course of action they could take as individuals to rectify injustice is not to work within the rules of the political process, but to actively work against them.

Update: Eugene Volokh takes a difference approach, arguing that the San Francisco mayor's actions do not violate the rule of law:

A government official is entitled to -- and sometimes possibly even obligated to -- refuse to comply with laws that he thinks are unconstitutional, when there's a serious argument that they're unconstitutional, when there's no clear precedent that says they're constitutional, and when there's no court order ordering him to comply with the laws. That's Mayor Newsom's situation, at least right now. Such challenges to existing laws are part of our rule-of-law tradition. But when a government official (especially a judge) refuses to follow pretty clearly binding precedent, and also flouts a court order, then I do think the rule of law is jeopardized.

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Here's the problem with all

Here's the problem with all of this -- civil marriage is not a right. Civil association is, and gay people have been able to exercise their right to associate freely for decades. No one is busting in doors anywhere (setting aside the Houston sodomy case) because gay people are living together.

Marriage as a source of community property and commingling of rights and privileges (civil marriage) is a legal construct, just like corporations. As such, it is up to the People to decide how these are going to be regulated. The People have decided this in California, and the mayor of SF is directly defying The People.

This isn't a question about the US Constitution. There is no right to gay marriage in the US Constitution; even the rights guaranteed by the Ninth Amendment are those that people already enjoy, and gay marriage has never been accepted in America. It is a question about the California Constitution, and the CA constitition is explicit and specific on the point. As this is the case, then the Tenth Amendment of the US Consitution comes into play -- and ratifies the CA Constititional position.

Phelps, Take a look at the


Take a look at the 14th Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Even if you take the position that marriage is not a right, but instead a privilege, denying marriage to homosexuals would still violate the 14th Amendment, in my opinion. Further, it would deny homosexuals equal protection of the laws.

Also, the Ninth Amendment does not only guarantee rights that people already enjoy. Read the actual text:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Just a few decades ago, people of different races did not enjoy the right to marry outside their race. Yet this was clearly unconstitutional, just as depriving homosexuals of the right to marry is unconstitutional.

You say, "these are public

You say, "these are public officials who have sworn to uphold the law." But earlier you quote, "An unconstitutional act is not law." This is the crux of the matter: If a purported law is unconstitutional, it is not law; to enforce it would be an abuse of any government officer's power.

That the officer in question has taken an oath to uphold the law if anything redoubles his obligation to uphold what is _in fact_ law, which an unconstitutional statute manifestly isn't.

Hi, I've been doing


I've been doing research on the constitution, particularly when the courts blatently violate it. I came across your site and would like to ask you a question.

According to the 14th Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
You said no matter what they considered marriage to be(a right or a privaledge)it would still violate the 14th ammendment.

Why is "marriage" considered either? Isn't marriage and how you chose to celebrate it, a religious choice? The laws tell us, in order for the United States to acknowledge "our marriage" we must follow their laws to be legally married. Which includes a stupid piece of paper, that doesn't mean a damn thing to our marriage anyway, as far as my husband and I our feelings for each other are concerned! It matters as far as health insurance, taxes and other LEGALLY bound entities are concerned. That's it! If it weren't for the mere fact, insurance companies are way out of control, I wouldn't have done the traditional wedding, cause I wouldn't need that paper to tell me; How much to love him, How much to care about him, How much time to spend with him......you get the idea.

My point is, marriage is a feeling in the heart, not a signature on a piece of paper! Why does the gay community even care if the laws of every state won't acknowledge their love? I could care less what any one thinks when it comes to my relationship with my husband. Does my point make sense to any one else out there?

It really doesn't need to be this hard.

Thanks, Robin Bower

Robin, Marriage is both a


Marriage is both a legal and social relationship. My argument here, and the larger controversy in general, concerns only the legal aspects of marriage. Homosexuals are currently deprived of the same legal rights that heterosexuals enjoy. The gay community cares that they are being denied these legal rights, and as I've argued, this can be interpreted as a violation of 14th Amendment protections. As for the social aspects of marriage, i.e. whether gay marriages will be accepted by society as a whole, that is not my present concern, nor is it the concern of the people arguing in favor of extending equal rights to gays. If you and your church don't wish to recognize their relationships, that is your choice, but you do not have the moral right to deprive them of equal legal treatment.