Lawful and Unconstitutional: Rule of Law in America Today

Lawful and Unconstitutional: Rule of Law in America Today

Is America built on a foundation of broken promises? Many constitutional fundamentalists in the legal academy today believe this is without question the case. Joining this conviction is the fear that the promises broken to date will pale in comparison to those broken in the future; that to deviate from the text of our foundational document opens the door to any behavior whatsoever. Outside of the academy, with the typical American, the legitimating qualities of the Constitution take on a deeper moral tone. For the scholar, “unconstitutional” becomes synonymous with “lawless.” Among Americans, it is closer to “wicked.” An anxiety that our government as it stands simply is unconstitutional, that this will someday be revealed and the whole thing will come tumbling down, hangs over the American imagination like the Sword of Damocles.

The law is indeed a body of promises, in the form of constitutional and statutory text, executive orders, contracts, and organizational rules, and also both explicit and tacit norms. Some of these promises are substantive commitments, such as the government’s promise to punish murderers or a supplier’s promise to fulfill a customer’s order by some agreed upon date. Other promises are procedural in nature, such as the promise that a simple majority of presiding Supreme Court justices are required to render a binding verdict, or that a majority of the House of Representatives and the Senate are required to send a bill to the president to sign, and that the bill will not gain the force of law until it obtains that signature.

The lawfulness of a given system rests on the extent to which promises are kept—whether by government actors swearing to uphold and implement the law or by private citizens swearing to follow it. Americans have a poor habit of viewing lawfulness in simple binary terms, and of making faithfulness to the word and letter of the Constitution the sole lens through which we view this question.

In truth, the lawlessness in the American system has very little to do with its constitutionality. We have legislatures which produce reams of statutory law that are too broad, vague, or incoherent to put effective guard rails around the behavior of executives. We have a party system that is undermining some of the basic institutions of democracy and actively fomenting unlawful behavior on the part of the public. And while our court system overall behaves relatively lawfully, it must cope with the capricious behavior of any five Supreme Court justices who decide to impose their will upon it.

It is nearly impossible to render a truly overall judgment of America’s lawfulness; the governance structures and the society are too vast, fragmented, and complex, the question itself is too multidimensional. There are certainly aspects, even very large aspects, which appear world class in their lawfulness. On the other hand, a nontrivial amount of American governance and social life seem world class in their lawlessness.

Though we will touch on aspects of America’s lawfulness in what follows, I will not pretend to have firm or final answers. What I can say for certain is that lawfulness in America, or anywhere, cannot and should not be judged by simply reading legal documents and peering about to see if the institutional landscape resembles what we have read. Lawfulness is a matter of what the agents of the law do, not a matter of how well they fit a formally prescribed formula laid out in advance. We need to attend more to how the system actually works, how it can actually be changed and improved, what the sources of its strengths are and how to guard its vulnerabilities, its tendency to break into lawlessness.

Lawfulness in ignorance of the law

In Robert Ellickson’s study of social order among Shasta County, California ranchers, he found a remarkable ignorance of the laws of trespass:

I found no one in Shasta County—whether an ordinary person or a legal specialist such as an attorney, judge, or insurance adjuster—with a complete working knowledge of the formal trespass rules[1]

The situation there was a bit special, with two different types of trespass rules in operation depending on where in the county you were. The landowners were the most familiar with which type of trespass law their lands fell under the jurisdiction of, but had very poor understanding of the legal implications of either type. Yet the “legal specialists” that Ellickson interviewed fared even worse. And the insurance adjusters Ellickson spoke to, whose livelihood depended upon being precise about financial risk, did worst of all, lacking working knowledge of the different trespass type jurisdictions and failing to understand the basic distinctions between them.

Can a promise be honored if no one—not the people charged with honoring it, nor the people to whom the promise is made—knows what it is? To the legal scholar, it may seem of paramount importance to recover the true meaning of the statutory promises and to begin to implement them faithfully.

The institutional arrangement which produces such a checkerboard of statutes and ordinances on the books in Shasta County certainly leaves something to be desired. To produce numerous complex promises that are difficult for even legal specialists to understand or remember is not especially lawful behavior.

Yet in Shasta County at the time that Ellickson studied it, most of the neighbors kept their promises about how to deal with the unavoidable damages that arise among one another due to the nature of their trade. The legal system kept its promise to settle conflicts peacefully where it was its authority was invoked. Social life was as orderly as can be hoped for from real human beings looking after their own interests and facing such problems as arise in the real world. Even though the relationship of the written law to this outcome is minimal at best, counterproductive at worst, Shasta County provides an excellent example of lawfulness.

Lawful societies do not originate in legal texts. Instead, they originate in history and sociology. They originate in the wrestling of specific actors with specific social problems and the institutionalization of specific approaches for managing those problems. Legal texts can be useful instruments for achieving institutionalization or influencing existing institutions. They can serve as the means for actors to coordinate in the reshaping of existing practices or the creation of new ones. They are not, however, the foundation of practice. If such a foundation exists at all, it can be found in the structure of the society itself, in the particular coordination challenges which spring from that structure, and from the society’s ongoing traditions.

Tradition over text

Some promises in the Constitution are quite plainly stated and clearly understood by all; the minimum age required to run for president or the fact that each state will have exactly two Senators is not subject to any great controversy. They are “particular and concrete.”

On the other hand, phrases such as “due process,” “cruel and unusual punishment,” and “equal protection” have a semantic openness that no amount of linguistic or historical analysis can do away with. The lack of concreteness can, in some cases, even threaten the apparent concreteness of other requirements. After all, if an amendment updates the Constitution’s meaning, and an ambiguous clause can be interpreted as being at odds with an unambiguous one from the original articles—if, say, the equal protection clause can be understood to be at odds with setting a high age requirement for running for president—then even semantic concreteness appears to be little barrier to judicial discretion.

For originalists, a phrase such as “cruel and unusual punishment” must only be taken to refer to what would have been commonly considered “cruel and unusual” at the time of ratification. But they were no less human then, and were just as prone to disagreement as we are now. And one thing that none of them believed was that the notion of cruelty at one moment in time needed to be frozen in place for legal purposes. For them, as for most people, the call not to be cruel is akin in substance as a call to act reasonably or decently. There’s no formula dictating what counts as cruel, reasonable, or decent. Everyone knows this, everyone knew this in the 1780s, and it is an exercise in intellectual desperation for legal scholars to ask us to pretend otherwise.

Outside of the hopes and dreams of scholars, open-ended promises in legal text and contracts are largely a signal of the shared spirit of the endeavor. The concrete and specific provisions, such as the procedure by which a bill becomes law or by which a case reaches the Supreme Court, end up providing the framework within which what is open-ended at the outset can be made specific and actionable.

Judges and other institutional actors are further constrained by, on the one hand, a set of institutionalized practices, and on the other, a tradition of contested but specific interpretations of the text.

It is the latter which historian James Oakes invokes in his blistering critique of Noah Feldman’s recent book The Broken Constitution. To Feldman, there is a straightforward interpretation of the Constitution that was understood by the mainstream players from the founding to the Civil War. Oakes, however, correctly points out that the American political and legal system contained conflicting interpretations within it from the beginning.

During the debates over its ratification, the Constitution’s proslavery opponents often denounced it as an existential threat to slavery, and its antislavery supporters sometimes hailed it as a harbinger of slavery’s abolition. Still others defended or denounced it because it protected slavery. Yet Feldman barely mentions these conflicting interpretations in The Broken Constitution. Antislavery constitutionalism was the majority view among northerners, but Feldman restricts it to a tiny group of misguided radicals and quickly hurries them offstage to make room for those who believed the Constitution was thoroughly compromised by its protections for slavery

Antislavery interpretations of the Constitution vied with proslavery interpretations of it in races for federal and state office, as well as among judges and lawyers. In a free society, the public sphere is also a place for public figures and ordinary citizens alike to try and persuade one another as constituents with the aggregate power of the vote, as well as to engage in direct persuasion of institutional elites. Ultimately, members of Congress decide what they believe to be constitutional based on what they are willing to vote for, the president decides what he believes is constitutional based on what he is willing to sign, the executive orders he issues, and makes use of the many other institutional tools at his disposal. And of course, judges make rulings based on their own best understanding.

That is one way of looking at how actors in a society work to advance defensible understandings of legal texts in order to open a lawful path to goals they wish to pursue. But even this is incomplete. Institutional practice is not just a matter of what each actor personally feels is the correct reading of a text. The canons of construction, for example, appear nowhere in our Constitution or in our statutory law, but the tradition of their use predates either. They are not a method for arriving at precise interpretation, for no such method exists, but they do help to structure the questions being asked, to bound the possibilities somewhat. The norm of respecting precedent in common law systems is another sort of scaffolding, which aims to make the court system more lawful by encouraging judges to treat similar cases the same way.

Such scaffolding makes the system more predictable, and therefore more reliable—and therefore more lawful. Sometimes this means that its relationship to texts is better aligned than it otherwise might have been. But mostly what we care about is that, as in Shasta County, it plays its role as mediator of social conflicts well, and if we do not like the manner in which it currently does so, there are democratic mechanisms in place in order to change it. Here, then, is why lawfulness cannot be boiled down to the mere correspondence of legal practice to legal text. A system in which judges sometimes make promises at odds with constitutional text, but in which those promises are then honored for decades, is more lawful than a system which faithfully adheres to a Constitution which promises the supremacy of presidential rule by decree.

Lawfulness is an important value, but it does not stand alone. And we should not confuse lawfulness with the desirability of specific laws. a regime that keeps its promises can and will make bad promises. An excessively restrictive occupational licensing regime may exclude many perfectly competent professionals from their trade and drive up the costs for customers, but it is still better to live under a regime that actually honors the license once you have it than one which may arbitrarily treat some licensed professionals like criminals anyway. In some cases, though by no means all, keeping bad promises is better than keeping no promises. And in every case, to be able to implement reforms which replace bad laws with good ones, a regime must be able and willing to actually fulfill promises once they have been made.

We can afford ourselves a dose of realism without cynicism when it comes to the law, and take some peace of mind in this. America’s small-c constitution, the character of our institutions as they actually operate, has soldiered on for quite some time under this arrangement, and it is not going to come tumbling down because someone points out some clause of the written Constitution which has been left out of constitutional practice. It is the overall ability of the system to keep the promises it makes which determines its ultimate lawfulness, rather than constitutionality specifically.

The judiciary

When it comes to honoring professional and business licenses, building permits, intellectual property, the sale of products subject to government pre-approval processes, and enforcing contracts, our system is very lawful. It may be among the most lawful in the world. One can quibble with the desirability of legal instruments such as licenses or product pre-approval, but these are areas in which lawfulness is definitely to be desired over lawlessness. In many countries these exist in what cannot even be called a black market, because their legal status is extremely uncertain even if the individuals involved have gone through expensive regulatory processes to try to operate within the law. Hernando de Soto, an expert on such markets, described the case of the Tunisian street vendor Mohammed Bouazizi as follows:

For years, Bouazizi had endured harassment at the hands of deeply corrupt petty officials — most notably, the municipal police officers and inspectors who lived off street vendors and other small-scale extralegal business-people. The police officers helped themselves to the vendors’ fruit whenever they felt like it or arbitrarily fined them for running their carts without a permit.

(. . .)Bouazizi might have tried legalizing his business by establishing a small sole proprietorship. But that’s easier said than done. We calculated that doing that would have required 55 administrative steps totaling 142 days and fees amounting to some $3,233 (about 12 times Bouazizi’s monthly net income, not including maintenance and exit costs).

Even had he cleared these impossibly high regulatory hurdles, it’s not clear that the police and inspectors would have left him alone. De Soto calls Bouazizi’s business “extralegal,” but The New York Times comments that it “may or may not have been legal; no one seems to know.” A government that cannot even make, never mind keep, promises of this kind, cannot be called lawful by any stretch of the imagination.

The court system in America has never really threatened bog-standard commercial relations of this kind, and even when cases of this sort make it to the Supreme Court, they tend to produce 9-0 or 8-1 majorities.

But the Supreme Court’s governance over the court system is frequently a source of lawlessness. Every so often, the Supreme Court rolls out of bed like some spoiled young king and decides to effect some big change. Perhaps for good, jurisprudential reasons, or perhaps because, as Lucas Powe said of the Warren Court, “these were men with power happily exercising it.” Regardless, the Supreme Court is capable of injecting a sudden and unexpected change into the system, to which the great body of the American court system must adjust.

But the Supreme Court is only asked to hear around 7,000 cases per year, and only actually hears around 80. Meanwhile, there are 400,000 cases filed in federal courts each year, and 100 million cases filed in state courts. The system is much larger than even the most capricious of Supreme Courts, and even among relatively activist Courts most of the 80 cases do not result in a particularly notable change.

And the system does display lawfulness in implementing the zigs and zags of the highest court. When, after Allen v State Board of Elections in 1969, the Supreme Court elevated the importance of preclearance for the execution of the Voting Rights Act, the states subject to the terms of that law began submitting their changes to the Department of Justice. When, after Shelby v Holder in 2013, the Court struck down the coverage formula in section 4 of that same statute—leaving no states subject to preclearance any longer—the DOJ shut down its preclearance division. The Court has no enforcement arm, it simply has a formal and, more crucially, an institutional authority:

Congress could not federalize all of the police in the nation—this is an uncontroversial fact. But it’s not because our Constitution says they couldn’t. It is because our Supreme Court would say so, and Congress and whoever was president would both accept the authority of that verdict. The Court would justify it in terms of their interpretation of the text of the Constitution, though relevant precedent might also be cited. But the fundamental reason that Congress couldn’t federalize the police is that the state officials would challenge it, the Court would side with them, and Congress would accept the verdict. And the reason that state officials would take matters into court rather than resisting by force, and that the Court would side with them, and that Congress would then accept the verdict, has very little to do with words on paper, and everything to do with the expectations on the part of everyone involved of what everyone else involved expects and believes is supposed to happen.

Many actors in the system have promised the governed that they will follow the verdicts rendered by the Court rather than their own judgment. Perhaps even more importantly for the lawfulness of the system overall, these actors in the federal and state government have essentially promised one another that they will do so. This allows them not only to cooperate and coordinate, but to resist and oppose one another as well, because it provides a framework in which to do so which is less likely to break out into open warfare or (what they fear perhaps even more) to lead to the disintegration of the mechanisms of institutional power on which they all rely.

So long as the rest of the system continues to accept the Court’s authority, five individuals have an enormous amount of potential power, even if they do not frequently make use of it. They could order that any federal or state program be dismantled, any executive department or agency liquidated. They could, like its Bolivian equivalent, declare term limits unconstitutional on equal protection grounds, or do the same for the Electoral College or for the apportionment of the Senate. The Warren Court essentially did this last one for state senates!

At some point, political, socioeconomic, and institutional reality would almost certainly assert itself against the whims of a handful of judges. The potential power that they wield depends, as all such power does, on using it sparingly, on avoiding overreach. It’s not entirely clear what would happen if, for example, the Court attempted to assert the non-delegation doctrine and thereby demand an end to the basis of nearly all federal regulatory power. Would this prompt Congress to act, and to drastically restructure the Court? Would federal executives simply ignore the verdict, carry on as before, and ignore lower and upper court verdicts that followed the Supreme Court? Would the court system divide itself between those that followed the Court in this and those that did not?

There is an instructive incident, if a depressing one given its substance, from the 1950s. In 1955 and 1956, the Court’s rulings in over a dozen cases to curb the excesses of anti-communism in general and the House Unamerican Activities Committee (HUAC) in particular. This so enraged members of the Eighty-Fifth Congress that, as Powe describes:

The House passed measures which created a presumption against finding that a federal statute preempted state counterparts, rewrote the Smith Act provisions on “organizing,” and authorized summary discharges of nonsensitive government personnel for security reasons. Senate action focused on William Jenner’s proposal to strip the Court of jurisdiction in all the areas where it had interfered with the anticommunist programs. [2]

These bills came the closest to passing of any such bills aimed at the Court since Jefferson’s day. It was only through the political acumen of then–Senate majority leader Lyndon Johnson and labor union leaders that they were defeated.

A clear message had been sent, and the Court, or at least a five-man bloc of the Court, got it. Black, Douglas, and two Eisenhower appointees, Chief Justice Earl Warren and William J. Brennan, held firm, but now in dissent.

A year later, in Barenblatt v. United States, the Court offered HUAC carte blanche[.][3]

Our system does make it possible for the other branches to answer the Court. But the nature of this example leaves room for pessimism about the politics that are likely to bring it about.

And so long as there is structurally a single top Court with final authority on matters of constitutionality, and so long as there is effectively no way to update the Constitutional text in response to Court interpretations, the Court is always going to be a lightning rod, a source of instability in our legal system. It would clearly be less so if there were many more justices than there are now. After all, part of the problem, part of what raises the stakes of every nomination, is that a single justice retiring or dying can have dramatic long-term consequences. If the Court is supposed to be a source of stability and lawfulness as a partner to legislatures that are constantly updating statutory law, the fact that a single justice can have so much impact is counterproductive. If a justice, or even multiple justices, could retire without discernible impact on the Court’s rulings, that would be a very good thing.

By comparison, consider France’s Constitutional Council, which until 2008 could not rule on the constitutionality of laws after they were enacted at all. Instead, there are some categories of proposed laws that they review all of, and others which they must be asked to review by some specific officials within the French government. If they find the laws unconstitutional, they are never enacted in the first place. This creates a clear division of labor between elected officials who draft new laws, and appointed officials who judge the constitutionality of the drafts, without giving the latter any power to create instability or overturn large facets of the legal system (until the 2008 change which now allows them to do so). Clearly a superior approach to ensuring lawfulness of both legislation and the judicial authority to check it.

A French-style Constitutional Council is clearly not in the cards for us. More realistic would be moving to a nomination approach that aligns with presidential election results. Each presidential term could come with multiple appointments to the Supreme Court, regardless of whether or not anyone leaves it. As the size of the Court expanded, it could operate like the federal circuit courts, in which a subset of judges decide on any given case, which can then be reopened in an en banc hearing if enough of those who were left out feel strongly about the matter. The larger size would also reduce the stakes of any one nomination or of any one judge leaving the Court.

This or any other potential reform are, so far, off the table politically. Institutional trust is at rock bottom levels at precisely the moment that the polarization of our politics is reaching historic heights. Right now there is one side of the party structure that stands to gain from leaving the Court composition untouched, and one that stands to gain from changing it. Republicans will therefore never propose or support any change, and Democrats cannot trust that any change they make will last beyond the next Republican unified government. Fearing they may trigger a series of escalations, the ultimate result of which is uncertain, Democrats do nothing at all.

In truth, even with the overly expansive powers of its top governing body, the judicial branch is the least of America’s problems when it comes to lawlessness today. Our dysfunctional party system, on the one hand, and executive branch at every level of government, on the other, produce and exhibit a great deal of lawlessness compared to many of our peer nations. In as much as the judicial branch is a problem it is largely a symptom of the problems in our party system; a healthy party system would be capable of reforming the nomination process or the structure of the courts generally when they began to get out of hand.

The party system

In the German system, when the Constitutional Court interprets the Basic Law in an unpopular way, its legislature has often passed amendments. Whereas we have ratified amendments to our Constitution 33 times since the first Congress over two centuries ago, Germany has—thanks to their much simpler but still very supermajoritarian amendment process—done it 62 times since 1949. But in America, even when the Court interprets statutory law in a way that many in Congress didn’t intend and do not want, the two chambers of Congress and the president are rarely able to come together to update the statute. This is in part because of the toxic combination of a strict two-party system, extreme voter polarization, and party organizations made toothless by the primary system.

Some of this is endogenous to the structure of our government; both its presidentialism and the symmetrical bicameralism. We have had weak parties from the beginning; even in the era of the infamous party machines, party strength was always local, never national. But polarization at the national level was a late development, not really culminating until the Republican midterm victories of 1994. Congressional budgetary politics exhibit the worst symptoms of this disorder. Whereas no government shutdown had lasted longer than three days prior to 1995, the 104th Congress resulted in a shutdown of over 20 days and ushered in an era of recurring crises of this sort. If the elected officials overseeing our legislative process cannot even reliably perform the basics of setting budgets and appropriating funds, how can we expect them to be nimble in response to a Court which only requires agreement among five individuals to act?

In most party systems, party leadership is able to decide whom to recruit and whom to nominate for what office, and to impose party discipline on party members that have won elections. In our system, a reality TV star who had no experience in public office whatsoever could hijack the nomination of one of only two major parties for the most powerful office in the country. The Trumpification of the Republican Party has, among other things, turned the forces of polarization towards actively undermining the possibility of free and fair elections. Much like judicial reform, fears that lack of bipartisan buy-in on election reform would poison the institutional well has led some Democrats to hesitate to take action, and the weakness of American parties means that those individuals can halt what actions a majority of both chambers might in principle take.

One of the chief goals of a party system is to provide, as Nancy Rosenblum put it, “regulated rivalry” in order to “mitigate rather than aggravate the evils that lead to violent political strife” by adding “organized opposition within government to political criticism and opposition outside government.[4]

Though our party system is certainly subject to regulations, and indeed some of the most intrusive regulations in the world, it is certainly not “regulated” in the sense of exhibiting moderation or orderliness. In my lifetime, I cannot think of a time when the party system could be said to “mitigate rather than aggravate the evils” that lead to social unrest.

The party system as it currently stands is a source of great lawlessness and disorder in our system. We ought to take more seriously the need to reform it.

The executive branch

The most lawless aspects of the American system is neither judicial nor legislative, but executive. This should come as no surprise, as nearly all of the federal government’s 2.9 million employees and state governments’ 19.8 million employees fall under some executive body or other. As such, there are many executive bodies which are quite lawful, but most lawless bodies in American government are executive ones.

On one end you have the very local policeman or elected prosecutor who may be more lawless than the typical such official in this country but who cannot be reached by any countrywide reform. I have elsewhere discussed this problem and how to instill greater lawfulness at this level. But the typical situation, indeed the overall situation, is not wonderful either. Forget the two million imprisoned after being found guilty of some crime in this country; more than 400,000 individuals who are legally innocent until proven guilty are being held in pretrial detention. A system that can throw someone in prison for 80 days without proving their guilt can hardly be described as lawful. In many cases people are charged, held, and then released some long time later without any restitution or apology.

It is a common observation that, taken literally, statutory law in this country renders virtually everything illegal. But neither the political, nor the administrative, nor the legal systems are reducible to the sum total of statutory law as written. The chief problem in America specifically is less the expansiveness of statutory law per se than the ways in which our (largely elected) prosecutors strategically combine statutory charges to bully defendants into accepting plea bargains. In other countries with independent prosecutors and judges and lawful institutional traditions, this problem of statutory combinatorics does not arise, or at any rate does so less acutely.

On the other end are highly funded and highly staffed federal agencies such as ICE and CBP who operate with broad discretionary mandates, and little oversight. Worse, the primary courts where their cases are heard is a part of the DOJ, not the judicial branch. These agents terrorize broad swaths of the American population and regularly deport citizens in their zeal to take no chances on missing an undocumented non-citizen. Few other parts of the federal executive branch are quite as bad as these. The ATF does have a similar bad reputation but is much smaller.

Then there is lawlessness of a less dramatic sort, though still important. For example: the NSA, which has repeatedly bucked the courts and Congress and done as it pleased to illegally surveil the American populace and many others.

All executive branches struggle with this. A strong court system can encourage an executive to behave more lawfully, and to some extent ours does. But the real power lies in the legislature, which can reallocate budgets, redirect resources, restructure the organization and make stipulations. Unfortunately, Congress is quite hobbled in this capacity. The overall design, with its three veto points, has struggled in the best of times. As already discussed, the current partisan configuration makes it hard for it to pass a budget at all. To hold the administrative state to account, to keep it lawful and responsive to elected officials, a legislature has to be nimble enough, energetic enough. Neither of these adjectives could be justly applied to our Congress, much less the coordination between it and the president.

As a result, American government is always at risk of becoming a closed loop between administrators and judges; hardly an ideal state of affairs. The unilateral powers of the presidency add some element of electoral accountability into this, but relying on a single unilateral actor who is only around for four to eight years is hardly an approach likely to lead to greater lawfulness.

There is unfortunately not much that can be done about the role of the Senate and the president in the legislative process. Doing away with primaries and strengthening parties could help, as could doing away with the filibuster. But the three elected arenas of the federal government will always, by design, face distinct electoral incentives, and as a side effect will weaken the power of parties to coordinate action.

Deflating constitutional anxieties

None of this is intended to imply that we ought merely to ignore the Constitution or other legal documents in our quest for lawful institutional practice. But I do think that Americans can afford to take it down a notch when it comes to our anxieties about constitutionality.

On the one hand, many horrible things are possible within the confines of the Constitution. Slavery famously was, and its abolition was accomplished by a combination of northern ratification of the 13th amendment and southern encouragement to do the same at the barrel of a gun. Treating marital rape as a legal oxymoron was and would still be constitutional, but was done away with through state-level laws. The conditions of immigration detention centers and overcrowded prisons full of American citizens have not been ruled “cruel and unusual punishment” by the nation’s highest Court.

Both inhumane and unlawful behavior is quite possible within the strict confines of what can defensibly be called constitutional.

On the other hand, lawfulness is bigger than the Constitution. Constitutional promises are not the only promises that are made or need to be honored in our system, and they aren’t always the most important ones in order for the system to exhibit lawfulness in its operation.

We need to care about much more than constitutional promises. We need to aim higher, to work towards a system that is more lawful, and more decent and just.

[1] Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge, MA: Harvard Univ. Press, 2005), 49.

[2] Powe L A Scot, The Supreme Court and the American Elite, 1789-2008, Kindle Edition (Cambridge, MA: Harvard University Press, 2011), Kindle Locations 2610-2613.

[3] Ibid, Kindle Locations 2620-2623.

[4] Nancy L. Rosenblum, On the Side of the Angels: An Appreciation of Parties and Partisanship (Princeton, NJ: Princeton University Press, 2010), 121.

Featured Image is The Trial of a Horse Thief, by John Mulvany