Sunday, June 30, 2019
Lessig, "translation," and institutional legitimacy
"anyone taking an oath of loyalty to the Constitution should be indifferent to ascertaining its meaning and then, if feasible, conforming with that meaning."
It is virtually always feasible. Judges are remarkably insulated against retaliation for unpopular rulings. Under almost all circumstances, the worst they face is being overruled and criticized. Circumstances where they might fear physical retaliation, or even loss of income, are rare indeed.
My criticism of Lessig's work, is this idea conflicting "fidelities"; There is no conflict between fidelity to role and fidelity to law; A judge's role is fidelity to law, though the Heavens should fall. And that is all. The two fidelities collapse into one, they can never conflict.
The Constitution was written with an understanding that it was in a particular legal system and over time this is also how practice showed was the best approach. Alexander Hamilton noted this in the Federalist. For those who care about that sort of thing. Judges were selected that generally accepted this approach. That is "the law" so all this talk is a bit circular. Various things are factored in there, including when judging.
the latter ends with the memorable comment that if a Constitution is not to be followed when it "pinches" as well as when it is comfortable
No one really disputes this except for details. It's pablum on some level.
Reference was made to Justice Sutherland. He wrote the opinion for Village of Euclid v. Amber Reality (1926). It involved zoning. He noted in part:
Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.
Commercial regulations that would have been understood as unconstitutional in 1800 very well might not be now given different conditions. What equality demands would change as well. And so on.
The same "law" on a basic level is being applied. The flexibility to apply it in ways dimly understood or expected is part of the charm. John Marshall, a ratifier, said this as well.
Village of Euclid v. Ambler Realty.
The OP includes this: "Lessig emphasizes throughout his book the importance of “charity in interpretation,” by which we assume the best of our adversaries instead of denouncing them as unprincipled or incompetent."
That's a useful approach though at some point it's pretty hard and perhaps unjustified. Assuming the best is not about blindness. But, it's a useful approach. An online comment once responded to someone else:
"But when you feel attacked you double down in these absurd ways, and respond to what you think were uncharitable readings of your posts with even more uncharitable and implausible readings, that couldn’t possibly be the intended ones unless your opponent was a total moron."
I find this happens too often. An "uncharitable reading" of a comment is made. The reading is far from a necessary reading. It at times is worse -- it is not really a fair reading at all. A tell is often inclusion of something like "so you are saying."
The quote is let *justice* be done, though the heavens fall. It would be myopic indeed to equate legal literalism with Justice. More importantly, the common law would find this maxim to be silly, dangerous and/or alien. It's always had at its heart pragmatism.
I know what the quote is, and disagree with the sentiment. If a judge doesn't think upholding the law results in justice, or something close enough to justice for government work, they need to find a new job.
Judges should uphold the law though the heavens fall, and if they can't, quit and let somebody else be a judge.
In most cases, judges need to interpret a law before they can apply it in a particular case. They (almost) never ignore a law once interpreted. And in the case of criminal laws, there's discretion in sentencing, parole terms, etc., as well as jury nullification. Legal systems which don't function like this are tyrannical.
Joe, by legalistic literalism I can point to several examples common in law schools. One, a law that says 'no vehicles allowed in the park.' Law was passed after complaints of recreational vehicle use in park. No exceptions are listed. Man falls sick in the park. If an ambulance goes into the park to save him, should police turn it away and/or arrest the rescue squad? Law says will must be administered as written to effect will of deceased at time of writing. Son named in will murders deceased. Should he get inheritance? The legal literalist says yes to both, an uncommonly silly position.
Another refutation of the idea animating legal literalism can be found at Mark 2:27.
"Judges should uphold the law though the heavens fall, and if they can't, quit and let somebody else be a judge."
A philosophy more suited to a rabid Jacobin than our ancient common law tradition.
You don't need to use hypotheticals as examples of legalistic literalism. In real life, all too often, a teenager is charged with distribution of child pornography, or forced to register as a sex offender, for sending another teenager an erotic selfie.
I deleted the comment referenced, but thanks.
No one here wants judges not to "uphold the law." There is some debate on what that means.
Henry-yes, that's a terrible and illustrative practice too, one that ignores the intent of the law for an overly-literal application of its text
Joe-yes, the whole 'uphold the law' line just begs the question of whether ignoring intent and result isn't a way of not upholding the law itself (most common law jurists would think using intent and result as interpretive tools is *how* one upholds the law; that's certainly the world the Founders were born and lived in).
Mista Whiskas, I'll add that I think that the prosecutors who go after sexting teenagers ought to be fired as unfit for their job. I'd also disbar them as morally unfit to practice law, but some might think that that's going too far.
"I'll add that I think that the prosecutors who go after sexting teenagers ought to be fired as unfit for their job. I'd also disbar them as morally unfit to practice law, but some might think that that's going too far."
I think that's fair; Prosecutorial discretion, if not taken to extremes, is a legitimate part of the law, properly exercised by the elected branches, the branches responsible for creating policy.
The problem is that a judge's job is keeping those elected branches from going off the rails, not deciding where the rails should have been placed.
I should add that I hardly think a judge is a bad person for thinking that the law is too awful to be upheld, or having ideas as to what it should be instead. They're just in the wrong job, they should run for public office, or organize a campaign to amend the Constitution, or something along that lines.
"should add that I hardly think a judge is a bad person for thinking that the law is too awful to be upheld, or having ideas as to what it should be instead."
I don't see this happening generally.
Judges generally "uphold the law" as they understand it to be, doing what judges do. There is a lot of discretion here and it is influenced by personal experience and values. It is human judging after all.
Various judges are very wrong on their understanding of what "the law" is, but that is not the same thing. Brett thinks the law means 'x' in various cases, that it is so obvious that 'y' is really a matter of "instead." Far from alone here.
Another matter though.
"If a judge doesn't think upholding the law results in justice, or something close enough to justice for government work, they need to find a new job."
Btw, here's the oath of office federal judges/justices take:
“I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”
So, you're going to argue that, when 'justice' and the text of the law, including the Constitution, appear to a judge to conflict, he's under an oath bound obligation to toss the text of the law aside, and go with justice?
I would argue that, when a judge finds himself thinking that, he needs to go into a different line of work.
I wouldn't argue that myself.
I would argue that when there are various possible meanings to a law -- which tends to be the case in harder cases especially -- the one that advances the administration of justice is often the best path. The "text of the law" is not being "tossed aside."
The Constitution's Preamble helps clarify how to apply it: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of States."
Establishing justice is in the text. So, again, the law is not being tossed. There is a dispute on what exactly the law means.
The problem I've always had with that sort of reasoning, is that as soon as you see ambiguity as licensing you to implement your own preferences, you see ambiguity everywhere. It's just a natural human tendency, and it totally takes over once you convince somebody they shouldn't fight it.
So, you shade your interpretation in the direction of what you see as justice. That gets accepted.
The next guy shades his interpretation a bit further, because the prior one having been accepted, he can get away with more, and because his starting point isn't the text, it's the last guy's ruling.
A few cycles of that, and you can get so far from any reasonable interpretation, that the difference between "interpretation" and "tossing the text of the law aside" gets pretty hard to see. It's a Drunkard's Walk away from the text.
So we've reached the point where Congress' authority to regulate commerce across certain political boundaries has become the power to regulate anything which hypothetically might affect such commerce to some slight degree, in aggregate, or ever has in any small fraction been part of such.
The power to regulate selling things across state lines has become the power to regulate backyard gardens, because if people grow veggies in their backyards, they might not buy them at a grocery store that in turn buys them across state lines.
The exceptions have swallowed the rule, because the judges didn't like the exceptions, and didn't feel bound by the rule.
All in the name of justice over text, of course.
Congressional power over commerce isn't a "justice" issue, so you're mixing different concepts in a way that simply confuses the issue. The commerce power involves a question of how Congress can exercise its granted power if the courts impose so many restrictions that it becomes impotent. And it's a question of "who gets to decide?". In the case of commerce, Congress (mostly) does. Issues of justice, in contrast, inherently involve the courts. They have to make decisions because they're the ones applying the law in particular cases. One is global, one is particular.
"So, you're going to argue that, when 'justice' and the text of the law, including the Constitution, appear to a judge to conflict, he's under an oath bound obligation to toss the text of the law aside, and go with justice?"
What does the oath (and the law proscribing it) say? Aren't justices supposed to uphold the law as written? Here it is plainly written that they are to "administer justice." I mean, should we invoke context, intent and the doctrine of absurdity to override the plain meaning of the law as written here ;)?
"as soon as you see ambiguity as licensing you to implement your own preferences"
See, no one I think holds that in the face of ambiguity (which is just a fact in a Constitution, btw) that you should or are free to 'implement your own preferences.' What they are arguing is that you can resolve the ambiguity using things like legislative intent, the doctrine of absurd results, and, yes, a sense of the 'justice' of it all, etc.. Now could these be 'colored' by one's own 'preferences?' Sure, but 1. the same can be said about any interpretive scheme (two 'originalists' looking at the 'objective' historical record can come to two different interpretations, and that can stem from 'preferences' which cause people to select, focus more on, weigh more heavily this piece of the 'objective' historical record than that and so on) 2. one can 'self police' one's preferences, good journalists, doctors, lawyers, teachers, police officers, etc., do this all the time, using professional standards, intellectual devices and discipline, humility, etc., to try to take into account, balance and negate their own 'preferences' from overly-biasing their conclusions.
"The power to regulate selling things across state lines has become the power to regulate backyard gardens, because if people grow veggies in their backyards, they might not buy them at a grocery store that in turn buys them across state lines. "
I've often wondered about why this seems so fantastical (at least after one gets past the superficial objections). I mean, does anyone not really grasp that every veggie I grow in my garden and use is not one I'm buying at the store? It's basic ECON 101 that these are linked. I don't see how you're supposed to uphold the law by granting Congress the power to regulate the latter without realizing the former touches upon and impacts it, which quite reasonably makes it fair game for the clause.
Brett still suffers from chronic Wickburn after all these years, perhaps fearful that his pulling his red radishes will be construed as affecting interstate commerce and thus regulated. Brett has long pulled his hair out over this. But there was a context to Wickburn that differs from Brett's red radishes. But when Brett was a mere laddie in northern Michigus pulling red radishes in competition with Mexican farm laborers, the problem was personal to Brett due to his small hands - if only those Mexican farm laborers didn't travel to near the border with Canada.
"All in the name of justice over text, of course."
No, in the name of a different understanding of the text.
The Supreme Court takes around seventy cases a term for full argument and a good many of these are matters that have split the circuits. There is a lot of ambiguity here. So, e.g., Justice Thomas in a majority opinion said in such and such a case the "best" way to understand a certain statute was 'x.' Such is the nature of the law.
But, one's distaste of lawyers won't mean one avoids ambiguity by simply avoiding being in the legal profession. Human experience is full with it. A company sets forth certain rules for employees. Each rule won't be crystal clear. A family member or friend gives instructions. A church* or club. Some overall principles would be helpful here. They won't be simply literal about everything. Being overly literal is at times a sign of a disability.
Anyway, "justice" to me has various meanings and it also pops up at times in regulation of commerce.
* Mr. W. cited the gospels. Jesus "upheld the law" by his understanding (at least as expressed by the evangelists) of what the Torah requires. He thought an overly literal understanding would in many cases not only be unjust but violate the law itself.
"The commerce power involves a question of how Congress can exercise its granted power if the courts impose so many restrictions that it becomes impotent."
The whole freaking point of limiting the powers of government is that it's sometimes supposed to be impotent.
The Commerce Clause isn't a "limitation" on Congressional power, it's a *grant* of Congressional power.
I think it's fair enough to say it's a grant, primarily, with an implied limitation. Government is empowered to do X but not Y. The problem is that Y is inextricably linked to X. Telling government it can do Y looks wrong, sure, but telling it can't does to (since Y and X are inextricably linked). Given that it's primarily a grant it's just not unreasonable to allow it to intrude into Y in the name of X...
Well, to the extent all grants necessarily include an implied limitation -- "that which is not granted is not granted" -- sure. But legally speaking, it's a grant just as much as a grant deed to your house is. The fact that the neighbor's house isn't included doesn't really make it less of a grant.
And of course all the grants of power in Art. I, Sec. 8 must be interpreted in conjunction with the N&P clause, which gets to your point about Econ 101.
Again, the problem with that reasoning, is that it rejects the notion that Congress wasn't granted Y. It. Just. Wasn't. Period.
The N&P clause is the "necessary" and "proper" clause, not the "convenient" and "eh, whatever" clause. And this is sophistry: Congress isn't regulating Y to influence X, it's just regulating Y to regulate Y.
The Gun Free School Zone act, to take an example, wasn't enacted to have some indirect effect on interstate commerce. It was enacted to regulate the possession of guns near schools. It was neither necessary, nor proper, to any legitimate end in the area of interstate commerce.
Fine, you don't like the idea of enumerated powers, don't like the fact that Congress wasn't granted some powers it might like to exercise. Doesn't matter, it still wasn't granted them.
If you read, "[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
And interpret it to mean, "[The Congress shall have power] to regulate [absolutely anything which has even the most tenuous or hypothetical connection to] Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
You have no business being a judge. You're either incompetent or dishonest.
To say that "Congress was granted X but not Y" assumes the conclusion. You first have to establish what is included within the grant before you can define what's outside of it. That leads to several issues:
1. First, who gets to decide what's included and what's not? For the most part of the last 80 years, the Court has said that Congress gets to decide. That's good reasoning: structurally, Congress is directly accountable to the people, who can vote for new Members if they don't like the result, while the Court is not equipped to make the kinds of decisions necessary to regulate or not particular aspects of the economy and has no direct accountability.
2. Second, it's consistent with the N&P clause -- also a grant of power, not a limitation.
3. Third, getting back to the point I made above, the Court has no role in regulating the economy. Your position is that it should insert itself into that role in the absence of any textual support. Yet when it comes to criminal law, your position is that the Court should carry out the textually literal words of a statute despite the fact that it's specifically charged with a role in that process.
"Congress isn't regulating Y to influence X, it's just regulating Y to regulate Y."
But that's just silly unless you really would like to deny that the corn I grow at home replaces the corn I would buy at the market. X just is Y in this instance.
"It was neither necessary, nor proper, to any legitimate end in the area of interstate commerce."
You don't think that it's at least reasonable to conclude, for example, that business (especially realty) in the Columbine school district area might have been hurt by the shooting there?
"The Gun Free School Zone act, to take an example, wasn't enacted to have some indirect effect on interstate commerce. It was enacted to regulate the possession of guns near schools."
How can you say that? I thought you didn't believe in such a thing as pre-textual motives tainting facially reasonable and neutral language. Congress had hearings and made findings and it's reasonable to assume guns around school would depress the local real estate and business market. Since you're committed to not looking into pre-texts you have to accept that, right?
"But that's just silly unless you really would like to deny that the corn I grow at home replaces the corn I would buy at the market. X just is Y in this instance."
I'm not denying that. The weather influences interstate commerce. The phases of the Moon influence interstate commerce. EVERYTHING influences interstate commerce.
But it's not the power to regulate things that influence interstate commerce. It's the power to regulate that commerce itself.
I think it really does boil down to this: You don't like the idea that Congress was granted some powers, and deliberately NOT granted others, and so you're happy to 'interpret' the grant of one power as a grant of all powers.
No, it's the power to use all methods "necessary and proper" to regulate commerce among the several states. And lest you object to the N&P clause, note that the Federalist states specifically that that clause itself is there only out of an excess of caution, since the grant of any power includes within it all subsidiary power necessary to exercise it.
Brett obviously dwells overnight once again, this time for just under 12 hours, with feeble responses to comments exposing him. Both logic and words fail Brett. Brett's closing at 6:49 AM boils down to this: Brett is not happy with Congress which passes legislation that the president signs, or the latter's veto overridden, to enact laws as provided in the Constitution; and Brett is not happy with the federal judiciary in its interpretation/construction of such laws underthe Constitution. So it seems that Brett has reverted to his earlier anarcho libertarian mode.
By the Bybee [expletives deleted], can Brett identify the powers that he suggests the Framers DELIBERATELY did not grant to Congress in the Constitution in order to determine the meaning of Brett's closing paragraph?
There can be a strong disagreement regarding the meaning of constitutional terms with the opinion "x" alleged meaning would result in the government having too much power (or too little) without the hyperbole that the person basically just wants anything goes.
People here have shown that they don't want to grant "all powers" to the federal government and at times Brett thinks they are wrong to withhold powers from said government. As I noted before, it is not that he merely thinks Trump is being treated selectively. In various cases, on the merits, he thinks certain powers are appropriately applied. Others think he is wrong in various instances and explained so. But, I don't think he wants to "grant all" powers even then.
It was and is argued that the N/P is at least somewhat redundant since a power includes what is necessary and proper to carry it out. Or, such would be the nature of things in practice. The term helps clarify what powers are granted and in some fashion will influence how the government applies them. In some fashion, an explicit broad grant of this nature is likely to help authorize more federal power, which was a basic end of the Constitution itself. It also somewhat limits it, e.g., if it is deemed that a grant of power is "improper" for various reasons including a violation of some right.
What that meant in specific cases was a battle since the beginning. An example is cited and there is such a debate. The federal government regulates commerce among the states, nations and Indian tribes. As part of said regulation, it determines that threats to education -- a continual core aspect of said commerce in various ways -- like guns near schools should be addressed. I guess under current doctrine, this might be a Second Amendment concern, but beyond that this is a reasonable judgment. It's a somewhat closer call than others & I wasn't too upset with U.S. v. Lopez. Congress could simply regulate guns that passed through interstate commerce or limit such laws to schools near major commerce hubs or something.
The Constitution sets up various means check Congress even here. The structural means in the minds of many are the strongest checks. There is a fear that such and such is a tiny matter of commerce but the power is plenary unless some improper means is used such as targeting a specific religion or discriminating against a certain group invalidly.
It is up to the legislature with a presidential veto and checks from people to avoid such excesses. Like declaring war on Canada or any number of things that might be deemed crazy. Artificial limits on broad language are as misguided here as when rights are involved. Courts are still there to help enforce limits, but it is not their job to enforce limits not there. And, in the nature of things, certain things like the nuances of necessary and proper commerce is given the other branches more than something like due process.
For a more detailed version of the points Joe and I made, see John Mikhail's latest post (now at the top of the home page).Post a Comment