The Tie That Binds: Constitutional Law and Culture, Obscenity and Child Pornography

The rule-of-law culture of the United States encourages us to isolate the adjudication of legal disputes from the culture at large. Chief Justice John Marshall, in his first notable opinion for the Supreme Court, reflected the consensus of the founding generation when he wrote, "The government of the United States has been emphatically termed a government of laws, and not of men." ¹ This, too, is the symbolic meaning of "Blind Justice," the American judicial icon of the blindfolded woman holding the scales of justice. Justice, we profess, requires neutral application of the law without regard to the identity of the parties. ²

Yet, as cultural anthropologist Clifford Geertz has insisted, law is hardly "placeless principle." ³ Its meaning necessarily is grounded in a cultural context. Indeed, Geertz has compared the essential practice of law with that of anthropology. He observes, "Law and ethnography are crafts of place: they work by the light of local knowledge. . . . Whatever else anthropology and jurisprudence may have in common, . . . they are alike absorbed with the artisan task of seeing broad principles in parochial facts." The contextual nature of legal reasoning follows from its role in the resolution of specific disputes. To a judge, again in Geertz's language, "the instant case . . . provides for law not only the ground from which reflection departs but also the object toward which it tends." ⁴

Even as we celebrate the rule of law, then, we recognize—or at least, we had better recognize—that law and culture are intertwined and mutually reinforcing. Our culture produces and shapes our law, while that law reproduces and reshapes the culture. This relationship necessarily is so. As constitutional legal scholar Robert Post has reminded his legalist colleagues, law, in its essence, represents an effort to create and to support a "social order." ⁵ An important ingredient of law's contribution to that order is the nurturance of community. Post explains, "Laws instantiating community seek to reinforce [a] shared world of common faith and fate. They characteristically articulate and enforce norms that they take to define both individual and social identity." ⁶ A society's laws, the provision of its authoritative set of legal rights and wrongs, do not exist in isolation but instead are a constituent part of a larger, more complex "normative universe." ⁷

Although the relationship between law and culture is enduring, it often is volatile. The use of law to enforce cultural norms, especially in complex societies, invites dispute. As Post observes, "The normative force of community mores is neither given nor fixed, but always the result of interpretation and critique." ⁸ In the heterogeneous culture that characterizes the United States, the communal function of law inevitably deploys courts on the front lines of the "cultural wars" that erupt periodically along societal boundaries. Moreover, because of the centrality of the rule of law in our culture, and of the United States Constitution in the American social order, we often ask the Supreme Court to resolve what essentially are cultural conflicts in accordance with constitutional law and values. Thus, the interaction between law and culture is especially potent, and turbulent, in constitutional litigation. ⁹ The Supreme Court often has performed most ably when the justices have fully understood the interrelationship of law and culture in producing, and in shaping, such conflicts and has failed most miserably, even dangerously, when they have ignored the cultural dimension of constitutional law.

The Court's uneven relationship with the Equal Protection Clause of the Fourteenth Amendment over the past two centuries is illustrative. That provision, which was added to the Constitution in the aftermath of the Civil War and Emancipation, prohibits states from denying "the equal protection of the laws" to anyone within their authority. ¹⁰ Not long after the adoption of the Fourteenth Amendment, in Plessy v. Ferguson, the Court upheld a Louisiana law that required railroads operating...