Denver Bar Association
October 2003
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A Good Chance for Discussion: Law as social function

by Joe Dischinger

We have all been reading with interest about Chief Justice Moore of the Alabama Supreme Court, who attempted to defy federal court orders to remove a sculpture of the Ten Commandments from the public area of the state supreme court building. A non-lawyer friend asked how someone who is not a member of Congress could possibly violate the First Amendment, since that Amendment begins with the words, "Congress shall make no law . . . ." Because English was his native language, my friend said, it seemed clear that the First Amendment applies to only 535 people in the world. Only lawyers could take such straightforward language and say it means something other than what it says.

The Court of Appeals for the Eleventh Circuit addressed this argument directly in Glassroth v. Moore, Docket Nos. 02-16708 & 02-16949 (July 1, 2003), slip op. at 25-28, which of course I had not read when I responded to my friend. I told him, with some assurance, that the Supreme Court had interpreted the language of the First Amendment to apply to certain actions by any government official, not just members of Congress (and that this restriction on governmental power had been extended to the states through the Due Process Clause of the Fourteenth Amendment). While it turned out that both aspects of my response were true, it did not answer the question of how a court could reach that conclusion in the face of seemingly unambiguous language, which is limited to the making of laws by Congress and the states.

This afforded an opportunity to discuss what it is that courts and lawyers do. In a situation like this, the objective is primarily to determine what the drafters and adopters of the language intended. In the case of the Establishment Clause, there is good reason to believe the framers intended to create, in Jefferson’s words, a "wall of separation between church and state." An overly narrow reading of the words might defeat that intent.

But determining the intent of framers and adopters is not the only objective of those called upon to decide what the law does and does not allow. Sometimes the drafters intend something in one provision that is unintentionally inconsistent with another provision of the same document, or with a law drafted by a previous generation, and these inconsistencies must be resolved. Members of the governed public must be able to understand what the rules are, and must believe there is reason behind the rules. Where a court has already interpreted the language of a contract, statute or constitutional provision, it should be interpreted the same way in similar circumstances in the future, absent a very compelling reason to reach a different conclusion. If a court fails in any of these objectives, our system of checks and balances allows the makers of laws to overrule the court by passing a new law, or even amending the state or federal constitution.

At a less abstract level, I was able to discuss with my friend the logic of prohibiting Congress from infringing on certain liberties and rights, but allowing other government officials to do so. We discussed the analytical process that courts and lawyers use to interpret language—the hermeneutic rules of construction that have developed over centuries and the sources of extrinsic evidence about what authors intended. It was a wonderful opportunity to talk about the role of courts to protect minorities in a democratic society, and the fact that majority rule is not always a good thing, especially if there is a chance you might not be in the majority one day. We talked about the law as performing a social function, perhaps the social function, and how fundamental principles remain the same, but nuances of the law must evolve as society changes.

In 1816, Thomas Jefferson wrote to a friend: "Some men look at constitutions with sanctimonious reverence and deem them like the Ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present; and forty years of experience in government is worth a century of book reading; and this they would themselves say, were they to rise from the dead. . . . Laws and institutions must go hand in hand with the progress of the human mind." A Treasury of the World’s Great Letters 170-71 (M. Lincoln Schuster, ed., 1940).


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