The No Kool Aid Zone

Gallagher’s article wasn’t particularly enlightening. The problem isn’t what we should do when there’s a clear meaning, but what we do when that meaning is obscure (either intentionally, as with “high crimes and misdemeanors”; or through concepts that embrace a rich history, as with “due process”).

Constructionists, those who hold to “original intent”, are right

See, I really don’t care for “original intent”; I’d much rather that judges work from, you know, the actual law. If the law says x, but the legislator intended y (which happens – cf: the federal Schiavo bill), I’d rather the judge enforce x than y. Call me crazy, but I’d prefer that judges enforce laws rather than intentions.

jpe ~ Jul 7, 2005 at 10:36 am

I think, jpe, that you’ve drawn a false dichotomy in your comments. Certainly, what we do when the meaning is obscure is precisely the point—which is why we do need to know original intent. Of COURSE the judges should work from “the actual law”—but the meaning of “the actual law” isn’t always crystal clear as applied to real-life situations; what then? Let me illustrate why I think your dichotomy is false:

“Congress shall make no law…prohibiting the free exercise (of religion)”. The Church of Sick Freaks decides that it is part of their worship of the god Butkus that they will perform human sacrifices of people dressed in Packer Green. The job of the courts is to rule on the legality of such. Now…according to the strict wording of the law, the Freaks can do it—but we all know that the original intent of the framers of the Constitution put that clause in, not to cover any/every manifestation of Sick Freakdom, but rather to ensure a broad right to religious belief and practice.

When a law is drafted, it is impossible to take into account every possible permutation/application. The framers, theoretically, could have written, “no law prohibiting the free exercise (of religion) except for human sacrifice”—in which case they’d have handled the Sick Freak case really well, but not the First Church of the Stoned Goobers, whose main sacrament involves crystal meth and Lynyrd Skynyrd.

The point is that it is the job of the courts—and the buck stops at the SCOTUS—to interpret what the law means in a given context, and the really key, boil-it-all-down question is, “when they are trying to figure out how the law is to be applied, does the original meaning and intent of the law guide the decision (in any sane society, it must!), or do the justices fly it by the seat of their pants, and/or invoke the latest novel postmodern legal theory (a la Souter, Ginsburg, Stevens, Breyer, O’Connor, and Kennedy)?” “Seat of the pants” reasoning will sometimes get it right, just like a blind squirrel will occasionally stumble upon an acorn, and Robert Byrd will occasionally appear coherent, but the cumulative effect over time will be to erode the basis for our legal system to the place where the final authority becomes whatever mood one “swing” justice is in that particular morning.

And then you get decisions like Kelo v. New London, and end up having to pray that your town doesn’t decide to grab your house/church out from under you to make room for a Starbucks…

Byron ~ Jul 7, 2005 at 12:10 pm

when they are trying to figure out how the law is to be applied, does the original meaning and intent of the law guide the decision….?

Clearly, if there’s a technical term or phrase, then intent is helpful inasmuch as it clarifies what the law actually means. That is as it should be. However, that isn’t the more common situation. More often, we get either something drafted badly, where the letter of the law seems to conflict with the spirit in which it is offered (the federal Schiavo law), or we get something drafted ambiguously (the first amendment).

In the former case, the law should be applied as written, not as intended. It sounds like you don’t have a quarrel with that point.

One problem I have with original intent in the cases of ambiguously drawn laws turns on what I guess could be called parliamentary intent. Given that laws are drafted by large bodies of people, each of whom could have their own intent, it’s difficult to suss out a single intent. In that case, whose intent controls? In turn, we get these silly “battles of the quotes,” of which Scalia is clearly a fan.

Methodologically, then, it can be highly problematic. The assumption that there can be something like a parliamentary intent (apart from the law itself) seems strange.

jpe ~ Jul 7, 2005 at 12:33 pm

but we all know that the original intent of the framers of the Constitution put that clause in, not to cover any/every manifestation of Sick Freakdom, but rather to ensure a broad right to religious belief and practice.

In this case, though, you don’t need recourse to original intent. The first amendment, in its own terms, clearly covers the situation. OI in this case serves no purpose, as a textual reading of the law answers the question. The only time OI won’t be useless is when there’s an ambiguity, and that’s right where we run up against the problem of parliamentary intent.

(nice hypo, by the way – I did philosophy in college, and haven’t seen a zany hypo like yours since then)

jpe ~ Jul 7, 2005 at 12:36 pm

Liked the hypo, eh? I’ll try to toss more in as the situation warrants…why not add a little zaniness to life now and again?

Also, “suss out” a single intent??? Is that, like, British or something?

OK…obviously, I’m agreed that a law should be applied as it is written; if a law is badly written (like the ADA), then rewrite it legislatively to fix it. Now, as to the “parliamentary intent” idea, I suppose that it might be said that perfect precision in agreed-upon meanings might be impossible, but pretty darn close isn’t unreasonable, and further, that’s why we have 9 justices, I think. It’s one thing, though, to say, “we aren’t totally certain what the original intent was”, or to say, “we aren’t all agreed as to how the original intent ought to be applied”; it’s quite another to say, “hang original intent; who cares what a bunch of guys in powdered wigs thought anyway?” That’s effectively what the more ambitious of the judicial activists are doing.

Now, I just beg to differ strongly on the point of my Sick Freakdom illustration, because a plain reading of the text, taken exactly literally, seems absolute: “NO law”. I don’t believe that the first amendment does “clearly cover the situation” at all, because by those stark, naked words, the Sick Freaks can barbecue the Packers ad infinitum; I think that OI is our recourse when we ask, “okay, the framers said, ‘no law’, but they also didn’t envision human sacrifice in the name of religion.” I assume you agree with my “ruling” there; if so, though, how does the First Amendment prohibit human sacrifice absent an attempt to determine the parameters that the framers understood (and IMHO, this is an easy case; no court has found a “right to human sacrifice”—although if they can invent a “right to privacy”, I’m not sure human sacrifice can’t be covered in the Church of Sick Freaks, provided Soldier Field can be used discreetly and those dressed in Packer Green are declared in a PVS…).

Seriously, though, what about the “peyote case” (Oregon v. Smith)? That’s a bit more tough—and a fair question is, how far would the framers have intended freedom of religion to go? By the way, that case was perhaps Scalia’s saddest hour…but nonetheless, I think he thought he was judging what the pertinent laws required…

Byron ~ Jul 7, 2005 at 1:48 pm

Now, I just beg to differ strongly on the point of my Sick Freakdom illustration, because a plain reading of the text, taken exactly literally, seems absolute

Ya know what, my brain blanked when I responded, and misread your hypo. I’m gonna give it a harder thinking; the last thing I want to do is spew the proper talking points. That said, I lean towards thinking that Smith was correctly decided, although it should have been O’Connor’s concurrence that carried the day.

The relevant question, I think, is whether a purely textual reading can account for Smith or US v Sick Freaks. I’d concede that the OI decision provides crisper reasoning; I’m just uncomfortable with the extralegal reasoning (isn’t the compelling interest standard extralegal? It’s not in the Constitution, after all – that’s a thorny question, which is why I’m gonna reserve rebuttal on some of these points)

jpe ~ Jul 7, 2005 at 3:06 pm

Hey, it’s fun to hash out, though, ain’t it? I’ll await any further clarifying…

Byron ~ Jul 7, 2005 at 10:34 pm