It’s often said that “Everyone has the right to an opinion,” and that includes the right to criticize and protest laws we consider unjust. But that is not a right to ignore such laws. How can we best explain the difference? (More)

My Constitution, Part III: Keep It Positive! (Non-Cynical Saturday)

This week Morning Feature considers the Constitution … as right wingnuts imagine it. Thursday we began with ‘constitutional conservatives’ who believe their opinions are enshrined in the Constitution, regardless of case law. Yesterday we looked at the ‘sovereign citizen’ movement and their truly bizarre views. Today we conclude with how to discuss the Constitution with archetypal Fred.

“Everyone has the right to an opinion!”

Few ideas are as precious as freedom of speech. The First Amendment protects that right three times, with the Free Speech, Assembly, and Petition Clauses. Together, they safeguard our right to criticize laws we consider unjust, to gather peacefully and protest those laws, and to advocate for government to change those laws.

So it’s true that “Everyone has the right to an opinion,” not only to hold an opinion – however well- or poorly-considered – but also to express it and urge others to accept it. That includes opinions on elected leaders, judges, the issues they should address, and the laws they enact, fail to enact, uphold, or overturn. The right to declare “That’s wrong!” – in response to a statute, regulation, executive order, or court decision – is the most fundamental freedom we have.

And some laws are wrong. For example, the Hyde Amendment (which bans federal funding for abortion) turns a woman’s right to control her own reproduction into a privilege of wealth. I think that’s unjust, especially since the Pentagon spends over $84 million a year to provide erectile dysfunction pills, and state Medicaid plans must cover erectile dysfunction pills if they covers any prescription medications. So the government will pay to help a man have sex – even though no Supreme Court decision recognizes a right to an erection – but the government won’t pay for a woman to end a pregnancy … as the Supreme Court has long recognized her right to do.

The Hyde Amendment is sexist and unjust, in my opinion. You may disagree, and the Supreme Court did in Harris v. McRae (1980). The Court held that while a woman has a right to terminate her pregnancy, that does not create a right to a federal subsidy if she cannot afford it on her own:

The Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.

So abortion is a constitutionally-protected right … but only for women of means? That’s wrong!

“The existence of law is one thing; its merit and demerit another.”

How can I say that … after having spent two days debunking ‘constitutional conservatives’ and others for cherry-picking the Constitution, ignoring precedents they don’t like, and declaring their opinions to be as valid as – indeed more valid than! – the Supreme Court’s decisions?

That’s a question you’re likely to hear if you discuss such issues with people like our archetypal median voter, Fred. The answer to that riddle lies in the concept of legal positivism:

Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p. 157) The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction.

The Is/Ought Distinction

Simply, positivism separates the law as it is from the law as it ought to be, what legal philosophers call the Is/Ought Distinction. I think the Hyde Amendment is an unjust law … but I accept that it is federal law, until and unless it is amended, repealed, or overturned.

If someone were to ask me whether military clinics or Medicaid can provide or pay for an abortion, I would have to answer “No. The Hyde Amendment prohibits that.” That’s not an opinion. That’s a factual description of current federal law. And if I said “Oh sure, they can!” that would be a misstatement of current federal law. It would not be an opinion. It would be a lie.

But if someone were to ask me whether military clinics and Medicaid should provide or pay for abortions … that is a matter of opinion, and I would lay out the same argument I made above: “Yes, they should, and here’s why….”

“It’s ‘The Letter from a Birmingham Jail’”

Almost inevitably, such a conversation will turn to civil disobedience. “What about Rosa Parks and Martin Luther King?” Indeed conservatives routinely liken their preferred lawbreakers to those civil rights icons.

As did the lawyer for a group of anti-abortion protesters who were on trial for trespassing. This was almost 30 years ago, when I was a student journalist. I was assigned to cover the trial, which had so many defendants that the courtroom was moved to a concert stage in the city’s performing arts center.

All morning, hour after hour, defendant after defendant tried to come to the stand with a poster of a fetus, or holding a baby doll. But the judge had rightly declared that the sole issue in the trial would be whether they committed trespassing. Their views on abortion were irrelevant. So hour after hour, the prosecution objected as defendant after defendant walked to the stage. And each time the judge ordered the jury into an anteroom while he told the defendant to leave the poster or doll at his/her seat in the auditorium.

Meanwhile, all morning, hour after hour, as defendant after defendant testified, the defense attorney asked each to comment on some passage “from Dr. Martin Luther King Jr.’s ‘Letter from Birmingham.’” The prosecution objected, but the defense insisted this was “central to the defendant’s state of mind,” and the judge allowed it.

As it happened, I had written and produced a play about Dr. King’s life, while I was a Marine. So I knew that letter very well. And during the lunch recess, I caught up to the prosecutor in the corridor.

“The defense attorney keeps lying by omission,” I said, after introducing myself. “That writing by Dr. King is not the ‘Letter from Birmingham.’ It’s the ‘Letter from a Birmingham Jail.’ Dr. King was a hero because he was willing to go to jail – and ultimately was killed – in the cause of justice.”

The prosecutor smiled. “Huh. I didn’t know the title of the letter. Thanks.”

And after lunch, after the judge had ordered yet another defendant to leave yet another poster or doll at her seat, the defense attorney yet again asked her to comment on a passage “from Dr. Martin Luther King Jr.’s ‘Letter from Birmingham.’”

“Objection,” the prosecutor said.

“You’ve made the objection before, counselor,” the judge said. “I’ll allow it.”

“With the court’s permission,” the prosecutor pressed on, “this is a different objection. Defense counsel is misstating the title of that letter. I have a copy here, your Honor. It’s the ‘Letter from a Birmingham Jail,’ and I believe defense counsel should cite its title accurately.”

The judge agreed … and the defense attorney never quoted from the letter again.

I support civil disobedience, but only when protesters are willing to be arrested and go to jail for breaking a law they claim is unjust. But I have no patience for ‘civil disobedience’ when protesters insist they should face no consequences.

Conservatives love to howl about “the rule of law.” But the rule of law is about the law as it is, not the law as they imagine it … or the law as they believe it ought to be.

So when you discuss ‘constitutional conservatives’ with Fred, remember the concept of positivism … and keep it positive!


Photo Credit: Liberty Magazine


Happy Saturday!