Morals- Holmes would be pissed
Holmes says “nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law." (P. 141 supplement).
Holmes also says “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."
The law is not about grafting morals and values on to society until the end of time. It is not about fighting injustice. It is about what the courts will do when faced with a binary decision between Plaintiff (Prosecution) or Defendant. Our function as lawyers is to try and predict the prophecy and influence it in one direction or another, depending on who is footing our bill.
This brings me to Aiken's law review article.
The study of justice and injustice is not a legal study it is an exercise in philosophy, something that Plato sat around thinking and pondering about. Justice is an artificial human construct to do with right and wrong. The law is something that allows us to live in communities peaceably and it has to do with permissible (legal) and impermissible (illegal). As Holmes infers above, something illegal is not always morally wrong and something legal is not morally right.
Justice is easily changed, differs from person to person, but the law applies to us all. Each person may have a sense of justice (some people may not), but all are equally bound to the law. I am not saying that the law and justice do not over lap or coincide, but they function independently of each other. Today it is illegal to kill another person, tomorrow who knows? But on both days it remains an injustice, at least to me. The law has nothing to do with morals, I, for one, refuse to put the "law" on such a pedestal to give it divine power. It is a human construct subject to mistakes, change, and revision.
As for social justice, people are free to attempt to graft their views onto society and I support that. These Social Change Provocateurs should not however, delude themselves into thinking that they are codifying a universal truth. They are grafting onto others their view of social justice, if that view passes the muster test of congress or the judicial system it becomes law. But as soon as it is law, it loses it moral flavor, it becomes as benign as tax statutes, some arbitrary thing (rule) all will follow because it is law (the courts will hurt them if they do not), not because it is the right thing to do. However, to those who want to do so, I think it would be more productive to attempt change with the other branches of government, not the judiciary.Yits. Out.