The Morality of Law

(This little essay is, in part, about what is happening, and what is not happening, in Washington DC in 2025.)

My title comes from a famous, great book by Lon Fuller, but I want to use the phrase in a different sense.

Four tales, from personal experience, will frame what I have in mind:

1. During the early weeks and months of the Reagan administration, numerous executive orders were floated orally or sent formally to the Office of Legal Counsel (OLC) for approval (“form and legality”). Under the leadership of the late (great) Ted Olson, OLC concluded that some of those orders were, in whole or in part, unlawful - beyond the president’s authority. The White House was not happy, but it complied with the law as OLC understood it.

2. There was, not so long ago, an intense debate between two Departments on how to proceed on an important question. Department A argued that one way of proceeding, favored by Department B, would violate the law. Department B argued that no one would have standing to challenge, in court, that way of proceeding. Department A responded that we all took an oath of office, and violating the law (and thus the Take Care Clause) would violate our oath. Department B answered, with puzzlement and heatedly, that no court had ever struck down a decision on the ground that it violated the oath of office. Department A was itself perplexed. It responded that public officials just don’t violate the law, even if no court will say so. That’s a MORAL obligation.

3. Three months into the Obama administration, a friend of mine, a terrific lawyer, said to me, “I now think that most of the things I hated about the Bush Administration - ARE NOT TRUE.” What he meant was that after seeing government up close, and the legal requirements and constraints, he had much more respect for the Bush Administration than he did before. Sure, he thought that President Bush had made many mistakes. Still, his attitude toward the Bush Administration was a lot warmer, not least because he saw that on many issues (not all!), it had been careful about, or constrained by, the law.

4. When I was a kid lawyer in the Office of Legal Counsel, I noticed that a terrific lawyer there, a Deputy Assistant Attorney General, said the word “lawyer” with a distinctive, unforgettable accent. I can hear it now. I still don’t know what the accent was. But he said the word “lawyer” a little like my mother would say the word “doctor.” It had some reverence in it. The reverence came from the idea that to be a lawyer, you had to have a certain kind of integrity. You had to tell the truth, even to the President of the United States. Sure, you could say that a certain decision “was more likely than not to be struck down, but it should be upheld,” and the boss could gamble if he wanted. But still, you had a duty of fidelity to law, and so did the boss.

Here’s what I mean by the morality of law: A commitment, on the part of those who practice law, to a kind of integrity. You certainly don’t ignore the law. You don’t make slipshod arguments.

You treat the law with respect, not contempt. (That’s the core of it.) You act as if there is something almost (let’s say it) sacred about it.