The area of religion and law presents a challenge to the notion of
rule of law. The phrase "rule of law", like the term "law" itself,
becomes increasing problematic the more rigorously one tries to
define or otherwise delimit it. This is a problem philosophers
always seem to have with law -- the essentially utilitarian nature of
it and of the terms we use in it do not lend themselves to
philosophical rigor.
Rule of law in the international development community typically is
used in contrast to either an anarchic situation or to a system of
political and personal whim. It is a system that provides some
greater regularity and permits one to plan and to rely on those plans
with respect to the laws being applied. It does not refer to a
system of law that has no ambiguities, no exceptions, no fuzzy areas,
no difficult questions.
It seems to me that the phrase "rule of law" is used in the US as
yet another code word for whenever a judge interprets a law
(including the Constitution) in a way the person does not like.
The problem with the phrase in religious freedom discourse is that
the law itself is so mushy and difficult to understand and apply as
one drifts ever so slightly from the core meaning. All of the
justices are in almost all cases applying the rule of law -- the
meaning of the constitution as they understand it from whatever
stance they may take toward it. In a few cases the court does engage
in policy-making and rule-making -- unavoidably in my experience and
understanding -- it is a Supreme Court we are talking about and a
Constitution we are discussing. It is not a law like "stop at stop
signs."
In Rosenberger two principles of law clashed. The dissent chose one
set of principles (separation) the majority chose another set (fuzzy
neutrality plus speech). Both were applying established rules of
law. Both were in compliance with the dictate to adhere to the rule
of law.
There are only a handful of cases where the court has really stepped
into open space with scant guidance from precendent -- but even there
one finds some fidelity to the rule of law. Brown is premised on the
14th Amendment. Roe on privacy found in substantive due process.
Bush v Gore is perhaps the most lawless decision, but even it is
premised on necessity and dressed in rule-of-law dress.
The 10 Commandment cases illustrate the problem nicely. Are any of
the opinions not based upon a rule of law? Isn't the rule of law
problem in them what happens when a Judge Moore defies the rules set
by the courts?
These cases are decided on various principles -- not on the basis of
clearly set boundaries created by hard-edged rules. Personal
experience and opinion and beliefs enter into them -- unavoidable.
But that does not make them outside the rule of law.
I suppose Roberts to simply mean that he will try to follow precedent
and text where it can be done. But I'm sure we will see from him, as
we see from EVERY justice that deciding cases is a lot harder and
involves a lot more than can be captured in any single catch-phrase.
Especially in the area of freedom of religion.
Steve
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
