Is law more than a mere assertion of power? This question is often associated with controversial implied right claims such as abortion, assisted suicide, and same-sex marriage, and it has been well-described as “law’s quandary.” We proclaim ourselves to be a “rule of law, not of men,” but are there just men and women hiding behind law’s facade, or is there really law there? Are judges on the state common-law courts just making up the law? Are federal judges doing the same in expounding “substantive” due process, or is there really something of substance to be discovered and applied? In philosophical terms, is there an ontology, a reality of law, or is it all contrivance? . . .
For more information about Professor Kmiec’s Donahue Lecture (which served as the basis for this article) please click here.