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What The Law Is
In 1803, Chief Justice of the Supreme Court John Marshall wrote "It is emphatically the province and duty of the Judicial Department to say what the law is." (Marbury v Madison, 5 US 137). With these words, Justice Marshall defined the judicial power as simply the competency to state how the texts various statutes incorporate into law.
At first glance, it seems glib, even facile, to dwell on "what the law is." Surely the law is that on which Congress has voted, and to which the President has affixed his signature. Surely the law is widely known and understood. Why else would one of the earliest civics lessons we receive in school be that "ignorance of the law is no excuse"?
Yet the law is neither widely known, nor understood. We are actually quite ignorant of the law--some would argue because we have so many laws it is impossible to know them all. Nor is it easy to forget then-Speaker of the House of Representatives Nancy Pelosi's infamous statement "we have to pass the bill so you can find out what is in it," referring to the Patient Protection and Affordable Care Act, colloquially known as "ObamaCare"; no matter how benign one wishes to view her words, the one unavoidable implication is that people--specifically "We the People", the citizens of these United States--are ignorant of the law. Even those serving in Congress are not fully aware of the law.
It is certain that even at the apex of government there is confusion about what our laws allow and disallow. Witness the conflicted debate over whether the President had sufficient authority in existing legislation to carry out air strikes and military operations against the Islamic State in Iraq and Syria. Or the protestations over the President's unilateral decisions to postpone key provisions of the Affordable Care Act. In each instant, a case was made--and not just by a few--that the President's actions were illegal; that they were a violation of his sworn duty to enforce the laws of the land. Again, the inescapable inference is that people--specifically, the Executive Branch of the Federal government--are ignorant of the law.
Thus we are afflicted with, if not ignorance of the law, at the very least persistent doubt about the law. We do not know what the law is. We are uncertain about what it permits, and what it denies. Thus Marshall's statement becomes the question--we move from the statement of "what the law is" to the question "What is the law?"
Merriam Webster defines "law" as
a binding custom or practice of a community. A rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority.
At a minimum, then, "the law" is the substance of that rule, the words by which the rule is articulated, with the meanings attached to those words by ordinary usage.
Is there more to a statute than its specific text? Almost certainly, if only because statutes do not exist alone. Each law is enacted and enforced within a compendium of other laws. In allocating to the courts the power and duty to say what the law is, Chief Justice Marshall also ascribed to the courts the duty to resolve conflicts between laws:
Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
Thus, the law is both the substance of a statute's text and its impact upon other statutes. Ultimately, no two statutes can successfully conflict with one another; one rule or the other must prevail in any particular instance. As Marshall noted with respect to statutes contrary to the mandates of the United States Constitution:
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
It is worth noting that Article VI of the Constitution makes Marshall's theory explicit fact:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Yet within this understanding of "what the law is", there is an important exclusion, an implicit admission of what the law is not. The law is not a pre-existing thing; a law proceeds from the community, and not from any other source. It is not the product of stone tablets or supernatural revelations. It is not handed down to men, but is devised by men. It is simple, but not simplistic, to assert that the law is whatever the community declares the law to be.
Hence the importance of discussion and reflection by all people on "what the law is". While courts determine what the law is, it falls to the community to declare what the law should be. If the community does not agree with a court's assessment of what the law is, it falls to the community to alter that law, and to do so in such fashion that the court's assessment aligns with the community's desire.
If the law does not grant the President authority and We The People of the United States desire that it does, it falls to us to prevail upon the Congress to enact such statutes as will give him that authority. If the law does grant him authority, and We The People of the United States desire that it should not, it falls to us to prevail upon the Congress to enact such statutes as will bar that authority and restrain him from such action.
In no case can we pass into law any statute either to authorize or restrain action in a manner not consistent with the Constitution. Such statutes are void from the outset. They do not exist within the law; they can never exist within the law.
Should "We the People" desire to grant authority beyond what is found within the Constitution, we must first amend the Constitution. That is how we decide what the law should be.
Worthy debates on any important question of public policy will do violence to the rule of law if we do not acknowledge the state of the law. It is through the passage of statutes that we communally translate our good intentions into law, and hopefully into good deeds.
In order to have a meaningful discussion on what the law should be, we must first seek understanding of what the law is.