What a legal opinion should tell you.

I look at a legal opinion as a confirmation of a philosophy and transmission of a narrative. Of the three State powers, the judiciary carries the essence of the State’s philosophy. Through its opinions, the Judiciary conveys how the State sees the world. The Judiciary tells the history of the philosophy, including a description of the back-and-forth political battles between political factions and stakeholders. The Judiciary identifies past and present winners of the battle and describes the social and public policy goals that ensue from political conflict. The Judiciary then sums up the narrative, political battle, and policy goals into a code; into the law.

The Executive, through its institutions and agencies, governs by coercion, narrative, and persuasion. It rules the behavior, the state of mind of its citizenry. All three State powers have their particular approach to crafting the narrative.

The Executive uses his mobile bully pulpit to message to the American people on social and public policy. He travels the country selling his budget priorities including the programs that he hopes can be exchanged for votes.

The Legislature, whose primary job is to loosen or tighten the purse strings on the Executive’s budget proposals, spends some of its time drafting bills that tweak existing law; partially fulfill a promise; transmit a value position; and hopefully, can be exchanged for votes.

But it is the Judiciary that speaks directly to the mind of the citizenry without all the noise that comes from blurbs made by the President before he steps onto Marine One, or from the histrionics like those of a certain congresswoman from the 14th district of New York. Theirs is the result of contemplation, reading (at least by their clerks), and questioning of counsel from various perspectives during oral arguments.

All three State powers have one goal, however. It is to maintain the State. The Judiciary, in my opinion, is implicit in its journey to this goal. But as a component of the mechanism that runs the day-to-day operations of the State, this goal will reveal itself in the verbiage of a court opinion.

A court opinion that exemplifies my position on what a legal opinion should tell you is Johnson & Graham’s Lessee v. McIntosh. The issue in Johnson v McIntosh was whether Johnson had legal title to land that was sold to him earlier by Native American tribes. Chief Justice Marshall, sparing no use of history, described the world view of Europeans; that Earth, nature, was to be divided into property and that while the right of Native American occupancy was observed and their communal approach to Earth acknowledged, it was the right to acquisition, the title by conquest that held dominion.

Not only did adherence to the philosophy of title of conquest by European nations minimize military conflict among them during their competition for North America, but the philosophy also determined whether Native Americans had legal title to convey land. What is important here is that Marshall described the philosophy and wove it into a narrative. His decision for the defendant also told me that he was not about to stray from a philosophy and a narrative that built his country. There was likely nothing in the social policy of 1823 that would have supported a holding that Native American tribes were wrongly denied the right to own and convey land that had not been conveyed to them by the United States.

A legal opinion should convey the nation’s philosophy and indicate any changes in alignment with that philosophy. As the institution embodying one of the three State powers, the Judiciary transmits through its opinions the narrative that the country is expected to align with. By ensuring alignment or guiding a re-alignment, the Judiciary conveys the position of the State.

Alton Drew

9 February 2023

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