The Law is Not What it Says

One of the first practical lessons a new law school student learns is that the law is not what it says. That’s why we need lawyers. If the law were what it says then lawyers would be superfluous. If the law were what it says then we could trust judges to make correct decisions. It’s not like the rules of baseball or golf which are indeed what they say. Lawyers are unnecessary with baseball and golf; just umpires and referees.

But the law of the land is not what it says. The law is what the court says, and the lower the court in the jurisprudential hierarchy, the less likely the law is what it says. Judges actually vote on the question of what the law is. Can you imagine that? The law is subject to a vote. That’s why many people have no respect for the law, and rightfully so.

In the final analysis then the law is what the Supreme Court of the United States says, except for the fact that it can change its interpretation of the law anytime it likes; the vote tally can, and often does, change from case to case.  So the law still is not necessarily what it says.  I’ve said it before and I’ll say it again: The law is a crapshoot. Lawyers can argue and courts can decide that white is black and black is white.

The First Amendment to the U.S. Constitution, the Bill of Rights, for example, provides that government my not abridge freedom of speech. That’s what it says but that’s not necessarily what the law is. First Amendment law is what a court says it is. So what amounts to fully protected speech on Monday might just as well not be protected speech on Tuesday if a court so decides by vote.

That’s right. It’s really a crapshoot here in the United States of America. One never knows for sure what a court will decide about what the law is. You can’t count on a court to uphold what the law says. Not even the Bill or Rights is what it says. It’s maddening.

High school students at Live Oak, part of the Morgan Hill Unified School District in Northern California, for example, in accordance with their First Amendment constitutional rights of freedom of expression, are permitted to wear clothing bearing depictions of the American Flag every day of the school year – every day except for one. A court decided that the same fundamental constitutional rights they enjoyed on Monday could be denied them on Tuesday.

And last week the United States Supreme Court let that decision stand. What is permissible expression on Monday, and fully protected by the First Amendment, is not necessarily permissible on Tuesday if the school district authorities so decide and the courts affirm. The First Amendment is not what it says.

The law is not what it says.