I was lucky enough to sing happy birthday to Ruth Bader Ginsberg last night, along with hundreds of other law students, law things, law professors, law groupies, judge, justices, and hangers-on. New England Law Boston* had her as their keynote speaker at their law day celebration.
It was an amazing experience to see her speak. I think there's a proverb, maybe Native American, maybe Indian or Chinese - that you should never yell to be heard; you should talk softly so that people need to be quiet and listen. Something like that. She exemplifies that, whatever it is.
The speech she gave at the dinner was charming, and appropriate for the occasion. It was on the topic of methods for increasing collegiality among the members of the court. Apparently, Scalia has perfect pitch, and Allen Greenspan occasionally lunches with the lot of them.
I regret that I was working during the day, when she spoke to a small group of students at New England. A student asked her what, in her opinion, was the most important Supreme Court decision.
She didn't go for an easy answer.**
Loving v. Virginia, she said.
I get it.***
Loving v. Virginia struck down a statute in Virginia which criminalized interracial marriage. It's one of my favorite cases. The opinion is deliciously short, and is mostly a concise 14th amendment analysis. The Court finds that there is discrimination on the face of the statute, the discrimination is based on race, that there is no need important enough to sustain this law, based as it is on invidious discrimination. It's bite sized, digestible, and the analysis is a great way for law students to remember how race-based discrimination works, come exam time.
The last line of the opinion, though, is what matters, I think, the most."Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State."
These are the lines that make people love the law.
Notice that the word used is "cannot" not "shall not" or "may not." It isn't that Virginia is not permitted to make this law, nor prohibited from enforcing it - it's that the state is not able to do so.
States are created entities. In the law, they're called unnnatural persons, like corporations or partnerships. It means they have a legal existence, but that legal existence has been written or drawn into being, by action of law and consent of natural persons. In essence: they exist because we agree they exist, and we agree and have defined what that existence is.
A state's existence is defined by its constitution. A constitution is less a body of laws, and more a definition. States have legal borders, as certainly as they have geographical borders. New York can no more begin to ooze into Connecticutt, slowly changing the sales tax in Stamford, the color of the state police cars in Milford, until finally, office-by-office taking over Hartford itself - then it can make a law infringing a freedom left to the people by the Constitution of the United States.
A legislature can pass a law, write it in the books, let the executive begin to enforce it. However, if the law was not within its power to pass, it isn't a law. States cannot act outside of their powers, just as they can't ooze over their own borders. A thousand New Yorkers living in Greenwich does not make Greenwich a part of New York; it simply means that New Yorkers are in Connecticutt.
The State of Virginia could not make interracial marriage a crime, because it was not within the power of the State of Virginia to infringe that freedom.
We, as a people, have not ceded to the state the power to determine, legislate, or regulate, who we love, and what our families are. It's ours. We've never given it away, so the state cannot take it.
If the state reaches out its ink-and-parchment hands to grab at it - it's not that the Supreme Court will whap its knuckles with a ruler for reaching, it's that the State can't grasp it. It's like being strangled by a ghost.
I love that.
*New England Law Boston, formerly New England School of Law, formerly Portia Law School - is not the school I attend, which is why I'm comfortable writing about it here. I respect the school a great deal, however - they are very open about their mission, which is and always has been ensuring access to a legal education. A hundred years ago, they opened as the first law school for women; now, their mission is preserved by maintaining affordable tuition, a thriving night school program, and offering rigorous clinical programs in a wide variety of fields of law. Hurrah to them, and fuck anyone who dismisses the school as simily "another fourth tier."
** Marbury v. Madison is the easy answer. It's the wishing-for-more wishes answer to that question. Marbury v. Madison established that the Supreme Court has the authority to strike unconstitutional laws, therefore giving it the power to do everything that it has done since. If you have occasion to ask a law student, law professor, constitutional lawyer or judge that question, and they tell you Marbury v. Madison - they're hiding something. It's like saying your favorite book is the bible, a complete non-answer which only serves to declare your membership in a group.***I'm sure the eminent justice would be pleased that her opinion has been endorsed by a third-year law student, with an undistinguished resume and no prospects for legitimate employment outside of a return to food service. Who's got two thumbs and been rejected from every clerkship in New England? This gal.