WHEN The Pursuit of Liberty Collides with the Rule of Law

In his 1979 article, Unspeakable Ethics, Unnatural Law, Arthur Leff argued that in the absence of a god-grounded ethical and legal system, “there cannot be any normative system ultimately based on anything except human will.” Stated differently, any human determination of what is moral that is separated from the unchanging moral standard of God is arbitrary and, likely, inconsistent. The difficulty with a human-will based system is that either each person is morally autonomous, in which case no government rules contradicting the individual\u27s moral determination could be justified, or the will of the majority constitutes what is right, in which case there is no such thing as individual rights. The inherent inconsistency in the standards for right and wrong stems from the fact that what is right potentially changes every time a new group of people is given authority to declare right and wrong. In the end, Leff concluded that the only way to avoid the inevitable power struggle that results from an arbitrary system of moral determinations is to treat the U.S. Constitution as functioning in the role of a god. As Leff predicted, however, a crisis arises when the Constitution is perceived as having gaps in making the moral determinations because someone (or some group of people) will fill the gaps with their moral compass. What Leff did not understand when he wrote the article is that the United States had already reached that crisis