Construed Over

Jacob Levy has a typically insightful analysis of (and case against) the Federal Marriage Amendment.

Comments

[Shannon Love]

The truly frightening thing in this article is the presumption that a we can no longer presume that the a law means what it's text says but rather that we must try to predict what some Judge somewhere will interperate it to mean.

I for one welcome our new Judicial Overlords. All hail the kritarchy

[Julian Sanchez]

No text "means what it says"--texts don't "say" anything until they're interpreted.

[Jean Bart]

Julian Sanchez,

No, that can't be true; texts are living creatures which impart their meaning by osmosis. 🙂

[Gadfly]

Excellent article.

The Right's contention that we take a vote on how the Constitution or certain state laws should be interpreted is just pathetic. For instance, a poll was taken in 1954 on intermarriage between blacks and whites. 94% were against it.

The courts are there for a reason. Let them work.

[Jason Ligon]

I have to quibble a bit with the notion that meaning is entirely in the eye of the beholder. We would be unable to communicate if that were the case.

Can we say that "the freedom of assembly" means "free icecream for everyone"? Is there no concept valitidy that we can apply to interpretation? If there isn't, I don't know why be bother speaking or writing at all. If there is, the text has at least a range of meaning that is independent of any arbitrary interpretation.

This idea is especially important for the construction of a society that purports to check governmental powers by holding them accountable to a written set of principles.

[Jean Bart]

Jason Ligon,

I don't think anyone in the thread has claimed that "meaning is in the eye of the beholder."

[Jason Ligon]

JB:

This: "...texts don't "say" anything until they're interpreted." led me down that path.

The organization of language in theory allows us to convey an idea to anyone familiar with the rules of our language. Is it fair to say that sentences don't say anything independent of the nuances of interpretation?

[Shannon Love]

Julian Sanchez,

"No text "means what it says"--texts don't "say" anything until they're interpreted."

I am shocked and disturbed that you would confess to so many incidents of child molestation.

At least, that what I interpet your quoted sentence to mean.

Wait on second reading, I see that you really wrote a long description of your giant pulsating-butt-wart problem.

No wait, what you really meant was that language only works if the linguistic tokens mean the same thing to different speakers and writers. You really intended to say that if elected representatives cannot reasonably expect the Judiciary to get the same idea from the sentences the representative write then entire concept of democracy and the rule of law disintegrates.

Glad I could properly interpret your vague sentence.

[Jean Bart]

Jason Ligon,

Well, I am of the opinion that language is slippery; but I am not opposed to the notion that we can come to fairly common understandings of writings; but that is less of a function of some "plain text" argument, and more a function of the persuasiveness of the argument about the nature of the text.

[Jean Bart]

Shannon Love,

If "rule by the majority" were the true heart of your system of government, then you would not have an electoral college or even a court system.

[Jean Bart]

Shannon Love,

Oh, and anyone who has ever researched a statute will tell you that statutory history and intention is hardly as simple as you try to make it out to be. How can it be, given that several hundred people can be involved in the writing of a text; or dozens in the case of your constitution, working in secret, where the documentation of the meeting is "spotty" at best.

[Xavier]

He says that there is no way to draft a statute that would prevent judges from creatively finding authority for civil unions without also preventing judges from recognizing statutes that explicitly allow civil unions. I disagree.

How about this:
"No court shall interpret any statute or constitutional provision to require or permit same-sex civil unions unless the statute or constitutional provision contains the phrase 'same-sex civil unions will be recognized in this jurisdiction'"

I've never seen a statute or constitutional provision that looks anything like that, but it should work. It would tell legislatures exactly how to enact civil unions if they want to and would give courts very little room to find authority for civil unions if the legislature did not intend it.

The second part of the argument is a little more solid, but still flawed. He suggests that constraining state courts in their interpretation of state law is completely novel. I don't see why. If there is a state law that may be interpreted in such a way as to violate free speech protections, state courts would be prevented by the federal constitution from interpreting the state statute in that way. What's the difference here? Basically this amendment would say that state laws granting civil unions except those laws phrased in this particular way violate the constitution.

[Julian Sanchez]

Shannon-
A response as predictable as it was irrelevant. The point is that "search," "speech," "equal protection," "due process," "speedy trial" and scads of other central terms in the law are anything but self-explicating. Telling a court trying to decide whether phone tapping or infrared scanning constitutes a "search," or whether current marriage laws aford citizens "equal protection" to simply "read the text" is worse than useless.

[Randy]

Obviously Mr. Levy hasn't read this article:

http://www.christianitytoday.com/ct/2004/107/41.0.html

WARNING: The above article is full of unsubstantiated claims, dubious pieces of evidence, and is devoid of reasonable thought.

[Shannon Love]

Jean Bart,

You are making an argument from perfection. Since all language is not perfect and contains a certain level of ambiguity all language is inherently ambiguous. This is one of those observations that is perfectly true in the platonic sense and utterly worthless in any practical sense.

Your knowledge in the history of the US constitution and its origins is quite lacking. The founders were paranoid about government in general. They viewed government as an inherently dangerous institution, a necessary monster that would surge out of control if not carefully contained. They designed the Federal government the way we would design a first generation nuclear reactor. They did not tolerate ambiguity in the phrasing of the constitution since they believed that any ambiguity would be exploited to increase government power which in turn would lead inevitably to tyranny.

The constitution evolved out of years of debate both before it was written and during the ratification process. Every element of the constitution was widely debated before its inclusion. The phrasing of the constitution was deliberately chosen using widely understood terms. The secrecy in the constitutional convention hid only which specific elements were being considered for inclusions by any particular representative. All the elements were already long in the public domain. The idea that the meaning of the constitution at the time of its ratification was highly ambiguous and mysterious is ludicrous.

I suggest you make a detailed study of the history of the Second Amendment. What you will find is that the amendment had a concrete and well understood meaning up until very recent times. Since then an activist judiciary has struggled to simply define the amendment out of existence. They have literally tried to change the meaning of "can not" to "can"

If the judiciary can define away the Second Amendment, they can define away the First and any other amendment they choose. The necessary monster will have slipped its chains for good.

[Jean Bart]

Shannon,

"You are making an argument from perfection. Since all language is not perfect and contains a certain level of ambiguity all language is inherently ambiguous. This is one of those observations that is perfectly true in the platonic sense and utterly worthless in any practical sense."

How is it utterly worthless? Or am I to be treated again with a bald assertion, without a defense of such? If indeed language is naturally ambiguous, then that knowledge has to be worth something.

"They did not tolerate ambiguity in the phrasing of the constitution since they believed that any ambiguity would be exploited to increase government power which in turn would lead inevitably to tyranny."

Which of course explains the following statements which are ripped right from your constitution:

"Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;"

Innumerable books, articles, arguments on-line, etc. have been had about the "commander in chief" powers, and it is neither clear from the meaning of the language or from the convention what this power entails, and indeed there is a definitive gray zone between the Art. I and Art. II powers on this matter, as Justice Jackson intimated in the "Steel Seizures" case.

"Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

What the hell is excessive bail? What is a "cruel" and "unusual" punishment? The language is so amorphous as to mean anything.

There are number of other examples from the text.

"Every element of the constitution was widely debated before its inclusion."

Untrue. Almost all the language of Article III was discussed in a quick and cursory fashion by those at the convention. Madison says that of the Commander in Chief powers only one statement was, and that was by him.

The rest of what you said was hopeless blather from an uninformed moron.

[Jean Bart]

Shannon,

Indeed, it is readily obvious that I know far more about your constitution, how it was created, etc. than you do.

[Gadfly]

While we're at it, somebody please tell me what this sentence means.

"Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

Maybe Shannon could help here.

[Shannon Love]

Jean Bart,

Every phrase you listed had a concrete meaning at the time the constitution was ratified.

commander in chief: the highest possible military rank. All members of military are of inferior rank to the president. Congress cannot create a military rank superior to president. What he does with this command authority is not addressed.

Both of the other terms had specific meanings within Anglo-American law at the time:

cruel an unusual punishment: Punishment must be consistent. Similar crimes must result in similar punishments.

excessive bail: bail must be consistent. Similar circumstances must result in similar bail.

Just because you read the constitution within a a contextual and historical vacuum does not mean the founders did so.

The constitution did not arise ex nullo from the constitutional convention. It was the result of decades of political thought and debate all heavily recorded. Even if it had simply popped into existence the ratification process thrashed out most of the ambiguities. The Bill of Rights emerged from the ratification process not the constitutional convention.

[Jean Bart]

Shannon,

"Every phrase you listed had a concrete meaning at the time the constitution was ratified."

Busllhit; during the congressional debates concerning the Eighth Amendment many Congressmen stated openly that they did not believe that the terms used could ever be adequately or appropriately defined.

Indeed, regarding Madison's statement on the commander in chief powers he stated that this these would likely included a "repel attack" power, but he was not sure as to other powers.

You, to be blunt, don't know what you are talking about.

[Jean Bart]

Shannon,

Please, please, please - pick up a copy of Madison's notes on the constitutional convention and read it; you are going to remain a fool otherwise.

[Phil]

Just getting M. Bart's back here:

commander in chief: the highest possible military rank.

Clearly, you are the moron JB says you are. "Commander in Chief" was not a miltary rank of any level at the time the Constitution was drafted, nor is it a military rank now. The highest military ranks are, respectively, Army Chief of Staff, Air Force Chief of Staff, Chief of Naval Operations, and Commandant of the Marine Corps, during peacetime. All of these ranks are at the O-10 pay grade.

During wartime, there are higher possible ranks in three of the services: General of the Army, General of the Air Force, and Fleet Admiral.

Commander in Chief is a civilian position and title. It is not a military rank, and never was.

Idiot.

[Shannon Love]

Jean Bart,

Perhaps I can explain my base objection differently.

Are you familiar with the concept of tolerance as engineers use the term? No measurement is perfectly accurate. No two parts are machined to exactly the same dimensions. To compensate for these inevitable variations, engineers must creates designs that allow for deviations in individual components. Components are not identical but rather fall within a certain measurement ranges. That is the tolerance for the component.

A well designed and made product has "tight" tolerances i.e. components show less variation across different instances of the product. High tolerance car engines do not rattle and leak oil as their components fit together well. The parts of low tolerance engines do fit together well.

Laws are rule sets that even ideally cannot account for every possible circumstance. The adjustment of general law to specific case is the role of the Judiciary. It represents the tolerance for the legal system. By this analogy, the higher the tolerance in the legal system the less discretion the judiciary exercises. The lower the tolerance the more it exercises.

Just as the question is never whether components of a particular design will have some tolerance but rather how much, the question is never whether the judiciary will have discretion but how much.

A high tolerance legal system is very predictable. Legislators can better predict the effects of the law. Citizen can better understand if they are within the law. Judges need only nudge the parts a little bit to get them to fit together.

A low tolerance legal system becomes very unreliable and unpredictable. Legislators cannot predict the effects of the law (Jacob Levys basic fear) neither can citizen really know whether they are in compliance with the law. Judges must constantly shim and duct tape to get things to hold together.

In the end the question is: Do we work hard and long to make good solid law or do we succumb to temptation to cut corners and get what we want via judicial fiat?

What kind of car do we want to drive.

[James Merritt]

Those who are in any way interested in the assertion that "meaning is in the eye of the beholder," should read the book "Explanation and Power: The Control of Human Behavior," by Morse Peckham. That is indeed his remarkable assertion, and he argues it well enough that, after having read it several times, I am still unable to refute him outright in my own mind, although my gut tells me his case is far from airtight. Agree or disagree with Peckham, the book will make you think carefully about an important aspect of human life. It will put you in touch with your fundamental assumptions about communication, not to mention civilization. Regardless of the to-be-determined soundness of Prof. Peckham's arguments, the process of entertaining them is valuable in its own right. I highly recommend it.

[a sci-fi fan]

RAH's "Plain English Amendment", anyone?

[Gadfly]

Tolerate this:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

[Jason Ligon]

I follow the arguments here, but my question to the "whatever the Justices think" camp is:

Is the Supreme Court checked by anything in its powers of interpretation? My understanding is that the court was accoutable to the text, but here I see that text doesn't mean anything. Is lack of ambition the only thing that prevents the black robes from running off with the kingdom?

[rvman]

Jason: Well, I'm not in the "whatever the Justices think" camp, but the impeachment process springs immediately to mind as an outer bound on judicial power. The justices' power isn't delineated anywhere in the constitution - it exists, really, at the tolerance of the legislature and especially the executive, who does, after all, have all the guns. Justices say "boo", the president ignores them, congress ignores or impeaches them, and we have a "constitutional crisis" as they say.

[Jean Bart]

Shannon,

Again, I ask you to pick up a copy of Madison's notes on the Constitution; as well as the Federalist Papers. The latter were good enough for de Tocqueville, they should be good enough for you. 🙂