Tuesday, July 21, 2009

I can't believe what I am reading

This is what the New York Times thinks about the law:
At times, she too willingly ceded ground to her conservative questioners. We wish she had spoken out forthrightly in favor of empathy, a quality President Obama has said he is looking for in his judicial nominees. We would have liked to hear her boldly defend the idea of the Constitution as a living document, one that changes with the times. And we would have preferred if she had used the hearings to explain to the public that the much-mentioned distinction between judges making and applying the law has little meaning.
Last I checked there are three branches of government, the executive, legislative, and judicial. The legislative makes the the law, the judicial interprets the law, and the executive well, executes the law. At what point did this change? Now the judicial makes law? Also how does the constitution change? I say the constitution has changed to mean I am king. That makes sense right. The plain meaning of a document does not change. If it does then the document has no meaning. Just imagine you sign a lease for an apartment and at the end of the lease you can't get your security deposit back because the law has evolved during that time. That makes about as much sense as a living constitution. If you subscribe to a living constitution at least admit that your aim is to impose your will. I can respect honesty.

9 comments:

Phillip said...

I believe what is meant by a "living document" is that the interpretation of it is constantly changing and the content of the bill can change, which has been done through various amendments and judgements over the years.

As I understand it, when the Supreme Court makes a decision it sets the precedent of interpretation of the law. Through stare decisis this essentially creates how the law will be interpreted (and supposedly enforced) throughout the courts, giving it the effect of making law. There are numerous examples of this in American history -- Brown v. Board, Griswold v. Connecticut, Mapp v. Ohio, Lawrence v. Texas to name a few. The plain meaning of the document has changed over the years as it used to only really apply to white, property owning, males. The meaning of the Consitution still applies to nearly everything we do as well.

Both of your examples do not apply. There is an established procedure for changing the consitution, which could potentially allow for you to be king, providing you can get over 75% of popular support properly distributed.

Laws apply to the moment of the transaction and/or transgression. This is another common element of our governing system known as ex post facto which protects us from the greedy behavior you described, though it was designed for more substantial transgressions.

Making and interpreting laws are very different, but it would be foolish and/or intellectually dishonest to ignore the power of these justices to effectively make laws by how they interpret the consititution, precedent, and federal laws.

Adam Freund said...

If there is an established procedure for changing the constitution, then why must the meaning change? Couldn't we change the actual words of the constitution instead of changing the meaning of those words?

You are absolutely right that laws apply to the moment. The moment was the ratification of the constitution. Just like my contract cannot be changed ex post facto, the same rule should apply to the constitution.

The point is once again that of perspective. Of course in effect the interpretation of a law "makes" or clarifies the law. The difference is the NY Times view of the role of judges. On the one hand you can look at "making" law as the exception only to be used in cases where there is significant room for interpretation. I do not believe however that is what the Times means. They see the law in an amorphous manner which should be interpreted often and the way they see fit.

The question is whether you believe that the law is so devoid of finality that interpretation is a constant part of the landscape. I think everyone who views the law this way should always realize that arbitrary law works both ways. When you are not in power your opponents can do the same thing.

Phillip said...

When speaking of how the Supreme Court justices should interpret law, there is no finality in interpretation of law. Plessy was nullified. Dred Scott was nullified. Roth v. United States was nullified. Examples abound. Society changes and the rulings that overturned these are a reflection of that Constitution is "living document, one that changes with the times". Be glad that it does.

I do not know of any lawyer that believes that the law should not be interpreted though some may. Many clear cut cases will exist, but many cases are heavily entangled. The structure of the court system is one that allows increasing experience and interpretation up the chain, with only the Supreme Court having wide latitude for interpretation.

Adam Freund said...

This is not an all or nothing proposition, but you have to determine if arbitrariness should be the exception or the rule.

To my question: Why not advocate changing the actual words (via the legislature) versus the meaning of those words (via the judiciary)?

Phillip said...

Unreasonable search and seizure has changed significantly over the years. Mapp v. Ohio specifically addressed this. Quick, dirty summary -- if you go in looking for a stolen big screen tv, you have no business in the medicine cabinet. How do you write a federal law that encapsulates the spirit of this decision but does not limit the capability of government investigations to act? It would be very tough requiring more court interpretations. Legislative changes are good as well but the written language can be a very imprecise tool. Crafting a law to apply to exactly what you want it to can be exceedingly difficult.

This is only an example of how difficult writing a law can be, so lets stay focused despite my use of a hot button issue.
Imagine trying to write a law determining if a woman can get an abortion due to a medical risk to her life. What chance of fatality during the birth? What chance of fatality soon after? 5 years? How much damage to the mother's health is acceptable if there is a 50% chance of a still birth? What about a near certain infant death in the first 48 hours?
Clearly, crafting that law is difficult at best and impossible at worst. This shows why changing the actual words of the law instead of an interpretation of that law can be ineffective. Often the interpretation of the law determines what a reasonable effort to comply is and allows our society to function. The court changing the interpretation of those words facilitates justice as well because unfair laws and precedents can be set but later changed.

Changing the law through the Congress can be an excellent event. It is necessary.

To the first part, I do not understand exactly what you mean if "arbitrariness should be the exception or the rule". Laws must be interpreted in every legal proceeding (sometimes the interpretation is trivial). Whether or not we should change our interpretation of those laws should be open to each case (imho) though in the vast majority of cases we should not, do not, change our interpretations. I do not think arbitrariness (as I think you are using it here) applies except in the first application of a new law where a brand new precedent is set or when the Supreme Court takes on a difficult to interpret landmark case.

Adam Freund said...

You are absolutely right about language being imprecise and I agree that it would be near impossible to craft a law to cover every possible case. In general judges do use interpretation to determine the spirit (i.e. intention) of the law to determine the applicability to a particular case. You make a very good argument.

My grievance with the NY Times has to do with deliberate misinterpretation of the law. Or more precisely the deliberate misinterpretation of the intent of the law.

I think you are coming from the idea that all these differences between what the law means are good faith differences of opinion. I disagree. It is my belief that instead of applying the intent of the law to a specific case (which is what I interpret you to mean) judges today interpret the intent itself to come to a preconceived result. That is arbitrary in my opinion.

Your statement,
"The court changing the interpretation of those words facilitates justice as well because unfair laws and precedents can be set but later changed."
to me is an example of precisely what the courts should avoid. Who is to say what is and what is not justice? Certainly not twelve white men as in the past nor whatever racially mixed court we have in the future. I think this contradicts your eloquent earlier argument about interpretation.

Phillip said...

Unfair was a poor word choice as I mean illegal laws and incorrect precedents.

The Taney court upheld a Louisiana law allowing for segregation of people based on race saying it did not violate the 14th Amendment. The part in question was the equal protection clause: "No State shall... deny to any person within its jurisdiction the equal protection of the laws". This lead to the Plessy v. Ferguson decision stating that "separate but equal" follows that amendment. However, as we all know, that precedent was later overturned by the Warren Court in Brown v. Board where a more correct and enlightened precedent was set. That is what I meant to say.

My uncle was a judge. My sister is good friends with a judge who I had the fortune of meeting. I think most judges try to interpret fairly without letting undue bias get in the way. However, they are human and have their failings. I have rarely seen people so determined to do their jobs well or people who agonize over decisions as they have huge ramifications (one had to sentence a man to 10 years, because of one poor decision in an otherwise honorable life, the morning I met him).

It is the job of the legislature to write out laws, within the Constitutional framework, that establish what we collectively (supposedly) believe to be justice. Then it is the job of the Court to tell us if the new laws and people's actions fit within our final model of justice. So in a very real way, it is their job to say what is justice -- according to our collective framework. (As far as absolute justice, that is an entirely separate issue).

Geoff said...

This has been an interesting discussion, and I will readily admit that I am out of my league with all the court cases being cited, but if you'll indulge my ignorance I would like to offer my opinion.

"...the much-mentioned distinction between judges making and applying the law has little meaning." Practically speaking, I think I agree with this for the most part. Judges do, in essence, "make" law when they interpret it, BUT I don't think that's something to celebrate, admire, and perpetuate.

The Constitution specifically vests to the power to _make_ law to the Congress - not the Judiciary.

Statements like "...that precedent was later overturned by the Warren Court in Brown v. Board where a more correct and enlightened precedent was set," don't make sense to me.

If the Congress wanted to "overturn" the Taney court's decision upholding the Lousiana law allowing for segregation, then they could have done it through legislative action. In my opinion, it isn't up to the Supreme Court to do it after they have been "enlightened."

The bottom line is, that the Congress _should_ make the laws - whether you agree with them or not - and when the law is sufficiently vague, then the courts can have a crack at divining the "intent." Then, I would argue, that is up to the Congress to further clarify (or re-draft) the law to make it less vague.

I agree with the notion that language can be imprecise, but that is not sufficient reason to not try to make it as precise as possible through LEGISLATIVE revision - not judicial.

Adam Freund said...

Unfair was a poor word choice as I mean illegal laws and incorrect precedents.

Who determines what are illegal laws and incorrect precedents. Isn't this as arbitrary as "justice"?

It is the job of the legislature to write out laws, within the Constitutional framework, that establish what we collectively (supposedly) believe to be justice. Then it is the job of the Court to tell us if the new laws and people's actions fit within our final model of justice.

I agree with the first part of this sentence. Society determines what it thinks is justice. That may not be good, as was the case in slavery, but it is their prerogative. The court, however, needs to stay within that model and not change it, even if the model is "unjust".

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