I’ve watched this Kim Davis thing go from a case about bigotry and being a horrible human being to being about whether SCOTUS can make a law. For those of you curious about how the system you are a part of works, read on.

When the Supreme Court announces its decisions and issues its opinions, it is often accused of “legislating from the bench” or making laws although it is not the legislative branch. Does the Court “make law” when it decides the outcomes of the cases that come before it? The answer depends on the definition of “law” one uses. When the Congress, a state legislature or some other established law-making body passes a law, it creates “statutory law.” These are the laws with which people are most familiar, such as laws regulating the speed limit, laws that define criminal behavior and the laws that establish government programs. Statutory laws, however, are not the only kinds of laws that are “made” and applied in the American political and legal systems.

The most fundamental laws of this nation are the guidelines established by the Constitution. The “constitutional law” of the land includes the Constitution’s descriptions of the relationships between the three branches of the national government, the relationships between the national and state governments, the powers the Constitution grants to the national government and, most importantly, the limitations it places on governmental action.

The Legislative, Executive and Judiciary branches are all established and guided by constitutional law. However, the Constitution is sufficiently vague that each branch has frequently found itself in situations where the “right” course of action under constitutional law was unclear. The Framers of the Constitution, recognizing that they could not anticipate every possible circumstance in the new nation’s future, purposely left room for each branch to adapt and interpret their roles under the Constitution to meet the needs and challenges they would face. Most notably, the Congress was given the task of deciding what was “necessary and proper” to “promote the general welfare” and form “a more perfect union.” The necessary product of these decisions has been thousands and thousands of statutory laws.

As the Executive Branch has implemented the statutory laws passed by the Congress, it has also had to interpret not only its role under the Constitution but also the intentions of the Congress. In many instances the Congress has passed legislation that was purposely vague, leaving the details to Executive Branch departments and agencies to decide. When bureaucracies determine the details of the enforcement and implementation of a law passed by the Congress, the Executive Branch also “makes law.” These kinds of laws are called “administrative law.”

As this nation’s political system has evolved and matured, there have been numerous controversies about the laws passed by the Congress and the way those laws have been implemented by the President and the Executive Branch. There have also been disputes about the separation of powers between the three branches, the relationship between the national government and the states, the rights of the people and a host of other questions that arise under the Constitution. When such cases arise, they clearly fall under the jurisdiction of the Supreme Court. As Alexander Hamilton observed, it was necessary for the stability and future of the nation to “establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice”. When the Court makes decisions in response to such cases, it is, for all intents and purposes, defining and interpreting constitutional law. Does it “make” constitutional law in the process? There are differences of opinion on this matter, but the Court has clearly gone beyond the strict “letter of the law” embodied in the Constitution in several instances. Whether its decisions amount to new law or merely interpretations and clarifications of existing ones is, for better or worse, a matter of opinion.

From Hamilton’s statements in The Federalist Papers, however, it appears that the Framers at least intended that the Supreme Court would stand between the other two branches of the national government and the people, preventing abuses of power and improper interpretations of the Constitution. Indeed, Hamilton declared it the duty of the Court to “declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing