By Coons, John E.
First Things: A Monthly Journal of Religion and Public Life , No. 188
Government alone is where law can be found. At least, the American people generally think so. That the state holds a monopoly on the making and enforcement of law is a reasonable, if vague, inference from the message of lawyers, scholars, journalists, and activists, all of whom focus on the works of legislators, executives, and courts. That is the only kind of law that appears in the headlines or the fundraising letters of activist groups. Government alone is where law can be found.
Among theorists of law, this view that the state has cornered the market is usually called positivism. At its historical extreme, positivism produces what Henry Maine defined in the nineteenth century as law "stripped of every attribute except coercing force." Few writers take so crabbed a view today, sensitive as they now are to fuzzy realities such as culture, economics, utility--indeed, to many things (so long as no one mentions God or Nature).
Every such concession to other sources of law obviously makes state monopoly less plausible. Nevertheless, let us take the monopolist seriously and ask the straightforward question: Does law in the United States consist of nothing but the doings of the federal and state systems, or are there regimes that create and enforce authentic law beyond their reach? Do some persons or institutions make and enforce commands that no state or federal government can preempt or forbid?
The answer is yes, even if law is understood entirely in the positivist way, as the sheer authority to command with force sufficient to secure habitual obedience. The parents of underage children form a good example, for they are themselves genuine lawmakers. Because too many people believe that only the government makes law, the lawmaking role of parents has been largely invisible, and this invisibility has practical and unfortunate consequences for American culture and jurisprudence.
The original form of the American Constitution may be read as reserving to the individual states the authority to occupy law s entire province, minus the federal fraction. But language expressly limiting the range of governmental law entered the national text in 1791, as nervous founders added the Ninth and Tenth Amendments in the Bill of Rights: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The most obvious aim of these reservations was to create a hedge against tendencies to monopoly not by the states but by the new federal regime. But, in doing so, they also by implication limited the power of the states to occupy all of the remaining range of lawmaking. Given the references to "the people," it is hard to read these texts as an invitation to a local monopoly by, say, Oregon or Wisconsin. The people hold ground of their own in both amendments. The word or in the Tenth Amendment even makes the individual state and its people competitors in the creation of law, suggesting that the two could exercise their powers contrarily within the uncharted zone.
Writers on the Constitution typically reduce this potential conflict to the practical point that the people can never actually exercise any powers except through the ponderous amendment process that is dominated by established institutions, themselves part of the formal government's monopoly of law. That argument descends to the level of pure politics--and it is also wrong. There is a discrete and powerful motor here, if we are willing to recognize it: The Constitution contains a clear textual recognition that ideas--and even rules--about the common good can originate outside the state and be entitled to dignified reception ("not ... disparaged") when presented for recognition as law.
Indeed, on occasion, such notions have already appeared in the court and have been honored. …