What is your view on appropirate Judicial Philosphy? - Page 3 - U.S. Politics Online: A Political Discussion Forum

Mick Jagger · #31 (**permalink**) 06-10-2008

Quote:

Originally Posted by Marcus1124

the text of a law should be given the general meaning it had at the time it was given effect.

What exactly is "general meaning?" I've never encountered that term before in the context of Constitutional interpretation.

Marcus1124 · #32 (**permalink**) 06-11-2008

Quote:

Mick Jagger
What exactly is "general meaning?" I've never encountered that term before in the context of Constitutional interpretation.

I would suggest you apply the term to itself for your answer. It is pretty simple and straightforward English.

Mick Jagger · #33 (**permalink**) 06-11-2008

Quote:

Originally Posted by Marcus1124

I would suggest you apply the term to itself for your answer. It is pretty simple and straightforward English.

I would suggest you interpret the Constitution according to the common law rules and maxims of legal instrument interpretation the lawmakers probably meant for us to use. There is no evidence whatsoever that the lawmakers intended for us to use the rules you advocate.....

Marcus1124 · #34 (**permalink**) 06-11-2008

Quote:

Mick Jagger
I would suggest you interpret the Constitution according to the common law rules and maxims of legal instrument interpretation the lawmakers probably meant for us to use. There is no evidence whatsoever that the lawmakers intended for us to use the rules you advocate.....

You are clearly uneducated in this. The Canons of Construction ARE THE COMMON LAW RULES FOR THE INTERPRETATION OF LEGAL TEXTS.

From Wikipedia's page on the Canons (which is a pretty good starting point for understanding the most common of canons):

Quote:

Canons of statutory interpretation
Also known as canons of construction, canons give common sense guidance to courts in interpreting the meaning of statutes. Most canons emerge from the common law process through the choices of judges. Proponents of the use of canons argue that the canons constrain judges and limit the ability of the courts to legislate from the bench. Critics argue that a judge always has a choice between competing canons that lead to different results, so judicial discretion is only hidden through the use of canons, not reduced.

Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names.

Plain Meaning
When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. U.S., 242 U.S. 470 (1917), reasoning "[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."

Ejusdem generis (Of the same kinds, class, or nature)
When a list of two or more specific descriptors are followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them.
Expressio unius est exclusio alterius (The express mention of one thing excludes all others)
Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes."

In pari materia (Upon the same matter or subject)
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

Noscitur a sociis (A word is known by the company it keeps)
When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.

Reddendo singula singulis (Refers only to the last) When a list of words has a modifying phrase at the end, the phrase refers only to the last, e.g., firemen, policemen, and doctors in a hospital.

Substantive canons
Substantive canons instruct the court to favor interpretations that promote certain values or policy results.

"Charming Betsey" Canon
National statute must be construed so as not to conflict with international law. See Murray v. The Charming Betsey, 6 U.S. 2 Cranch 64 (1804): "It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains ...."

Interpretation in Light of Fundamental Values
Statute does not violate fundamental societal values. See, for example, Holy Trinity Church v. United States, 143 U.S. 457 (1892).

Rule of Lenity
In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant. See McNally v. United States, 483 U.S. 350 (1987); See, e.g., Muscarello v. U.S., 524 U.S. 125 (1998) (declining to apply the rule of lenity); Evans v. U.S., 504 U.S. 255 (1992) (Thomas, J., dissenting); Scarborough v. U.S., 431 U.S. 563 (1977) (Stewart, J., dissenting); See United States v. Santos (2008).

Avoidance of abrogation of state sovereignty
See Gregory v. Ashcroft, 501 U.S. 452 (1991); see also Gonzales v. Oregon, 546 U.S. 243 (2006).

Deference canons
Deference canons instruct the court to defer to the interpretation of another institution, such as an administrative agency or Congress. These canons reflect an understanding that the judiciary is not the only branch of government entrusted with constitutional responsibility.

Deference to Administrative Interpretations (US Chevron deference)
If the statute grants power to an administrative agency and is ambiguous with respect to the specific issue, the courts will defer to the agency's reasonable interpretation of the statute. This rule of deference was formulated in the US by the United States Supreme Court in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Avoidance Canon (Canon of Constitutional Avoidance)
If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the US, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts.

Avoiding Absurdity
The legislature did not intend an absurd or manifestly unjust result. See Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989).

Clear Statement Rule
When a statute may be interpreted to abridge long-held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it. This rule is based on the assumption that the legislature would not make major changes in a vague or unclear way.

Last in Time
When two statutes conflict, the one enacted last prevails.

For the sake of clarity, when I use the term general meaning I am using it synonymous with "plain meaning"

Mick Jagger · #35 (**permalink**) 06-11-2008

Show us some evidence that the lawmakers intended for any of those principles to be used to ascertain the meaning of the words they used in the Constitution to express their will?

Mick Jagger · #36 (**permalink**) 06-11-2008

Quote:

When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. U.S., 242 U.S. 470 (1917), reasoning "[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."

How could lawmakers have intended for us to use a rule that didn't even exist at the time the Constitution was made?

Mick Jagger · #37 (**permalink**) 06-11-2008

Here's the rule that existed when the Constitution was made.

Words are generally to be underftood in their ufual and moft known fignification; not fo much regarding the propriety of grammar, as their general and popular ufe. Thus the law mentioned by Puffendorfl, which forbad a layman to lay hands on a prieft, was adjudged to extend to him, who had hurt a prieft with a weapon. Again; terms of art, or technical terms, muft be taken according to the acceptation of the learned in each art, trade, and fcience. So in the act of fettlement, where the crown of England is limited “to the princefs Sophia, and the heirs “of her body, being proteftants,” it becomes neceffary to call in the affiftance of lawyers, to afcertain the precife idea of the words “heirs of her body;” which in a legal fenfe comprise only certain of her lineal defcendants. Laftly, where words are clearly repugnant in two laws, the later law takes place of the elder: leges pofteriores priores contraries abrogant is a maxim of univerfal law, as ell as of our own conftitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod populus poftremum juffit, id jus ratum efto.

Don't you think it would be a good idea to interpret the Constitution according to the common law rules of construction that prevailed at the time the instrument was made?

Mick Jagger · #38 (**permalink**) 06-11-2008

Quote:

Originally Posted by Marcus1124

You are clearly uneducated in this. The Canons of Construction ARE THE COMMON LAW RULES FOR THE INTERPRETATION OF LEGAL TEXTS.

From Wikipedia's page on the Canons (which is a pretty good starting point for understanding the most common of canons)

What happened to your rule that says:

If one meaning is more sensible given the specific context (for example, a few terms ago, the SCOTUS heard a case involving a criminal statute which permitted more severe sentencing if a gun were "used" in the commission of a crime. The case in question involved a person who had traded a gun for drugs, and was sentenced more harshly under the statute. The majority found that this was perfectly acceptable under the language of the statute. Scalia disented, arguing that in ordinary discourse, if someone ask if you "use a cane" (for example) they mean for its intended purpose, and not if you perhaps "use" your grandfather's antique cane as a decorative piece in your home. He thus dissented arguing that the word "use" in the statute reasonably meant the "use" of a gun for its intended purpose--as a weapon--and not as it was in this case, as a medium of exchange.

Have you abandoned it?

Marcus1124 · #39 (**permalink**) 06-11-2008

Quote:

Mick Jagger
Show us some evidence that the lawmakers intended for any of those principles to be used to ascertain the meaning of the words they used in the Constitution to express their will?

These canons have existed for centuries, they predate the constitution, they are the rules for how JUDGES are supposed to interpret legal texts. One of those rules, as a matter of fact is that where there is an EXPRESS declaration by the legislature that the text is to be interpreted in a certain way as part of the statute, than that is controlling (since such declarations by definition would remove any ambiguity upon which the judge would generally rely on the Canons to deal with).

The Constitution presupposes this in conferring "the judicial authority" of the United States upon Supreme Court and lower courts under the judicial branch.

Quote:

Mick Jagger
How could lawmakers have intended for us to use a rule that didn't even exist at the time the Constitution was made?

The rule DID exist prior to the ratification of the Constitution. The fact that you confuse the case law citation which is merely the articulation of an existing rule with the rule itself just belies your ignorance in this.

The "plain meaning" rule is among the oldest and most fundamental rules.

Quote:

Mick Jagger
Here's the rule that existed when the Constitution was made.

Words are generally to be underftood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorfl, which forbad a layman to lay hands on a prieft, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited “to the princess Sophia, and the heirs “of her body, being protestants,” it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words “heirs of her body;” which in a legal sense comprise only certain of her lineal descendants. Lastly, where words are clearly repugnant in two laws, the later law takes place of the elder: leges posteriores priores contraries abrogant is a maxim of univerfal law, as ell as of our own conftitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod populus poftremum juffit, id jus ratum efto.

Don't you think it would be a good idea to interpret the Constitution according to the common law rules of construction that prevailed at the time the instrument was made?

Well, I can see it isn't just legal history and statutory construction you are defficient in your understanding of, but basic English as well. What you cited says THE SAME FRIGGIN' THING I HAVE BEEN SAYING! You are just too obtuse to recognize that:

So, let's take your citation in parts:

Quote:

"Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use..."

This IS the PLAIN MEANING RULE. "their usual and most known signification" is just another way of saying

Quote:

"...Thus the law mentioned by Puffendorfl, which forbad a layman to lay hands on a prieft, was adjudged to extend to him, who had hurt a priest with a weapon..."

Because the plain meaning or "their general and popular use" of the term "lay hands" in this context was understood to mean infliction of bodily injury (rather than merely limited to literally "lay hands").

Quote:

"...Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science..." So in the act of settlement, where the crown of England is limited “to the princess Sophia, and the heirs “of her body, being protestants,” it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words “heirs of her body;” which in a legal sense comprise only certain of her lineal descendants..."

Although not in the list above, this again is one of the Canon's of Construction. Pharses are sometimes used which have no independent definitive in and of themselves, but rather have a pre-existing meaning as a "term of art". For example, "unreasonable searches and seizures" when it was written into the Constitution was a known "term of art" that had significant case-law and meaning already attached to it.

Quote:

"...Lastly, where words are clearly repugnant in two laws, the later law takes place of the elder: leges posteriores priores contraries abrogant is a maxim of univerfal law, as ell as of our own conftitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod populus poftremum juffit, id jus ratum efto..."

Again, another of the canons listed above:

Last in Time
When two statutes conflict, the one enacted last prevails.

Marcus1124 · #40 (**permalink**) 06-11-2008

Quote:

Mick Jagger
What happened to your rule that says:

Quote:

If one meaning is more sensible given the specific context (for example, a few terms ago, the SCOTUS heard a case involving a criminal statute which permitted more severe sentencing if a gun were "used" in the commission of a crime. The case in question involved a person who had traded a gun for drugs, and was sentenced more harshly under the statute. The majority found that this was perfectly acceptable under the language of the statute. Scalia disented, arguing that in ordinary discourse, if someone ask if you "use a cane" (for example) they mean for its intended purpose, and not if you perhaps "use" your grandfather's antique cane as a decorative piece in your home. He thus dissented arguing that the word "use" in the statute reasonably meant the "use" of a gun for its intended purpose--as a weapon--and not as it was in this case, as a medium of exchange.

Have you abandoned it?

No, and if you had even a highschool level of reading comprehension you would realize that the above is an example of of one of the Canons of Construction.

Do not confuse the meaning of the law (which is the the legitimate pursuit of a jurist) with the canons of construction which are the time tested means for ASCERTAINING that meaning when their is ambiguity in the text.

If the congress passes a law which makes it a crime to "use a motor vehicle on Saturdays" and I get arrested for washing my car on a Saturday (which a police officer decided was "using" it), how would you propose a judge go about determing what the meaning of that law actually is and whether washing the car is "use" under the statute?

How about if there is a law prohibiting the "use of lawn sprinklers and hoses" during daytime. If I am arrested or fined because I was "using" my lawn sprinkler to prop open my door too keep it from closing and locking, how would you suggest that a judge go about determing if I have violated the "plain meaning" of that law.

goober · #41 (**permalink**) 06-11-2008

Judges sometimes find meaning that may not have been intended but is there none the less.
The Supreme Judicial Court of Massachusetts found in 1783, in a case where a slave brought Assault and Battery charges against his master, that the master's defense, that it was his right to beat his slave, was not valid, because slavery could not exist in Massachusetts, since the Massachusetts Constitution said that "all men are born equal", slavery was incompatible with the Massachusetts Constitution.
In 1865, the same court ruled in a case of a restaurant that refused to serve a black man, that businesses open to the public could not arbitrarily discriminate against members of the public on the basis of race.
And more recently, the same court found that the Massachusetts Constitution allowed gay marriage.
Now I doubt that John Adams had abolishing slavery, preventing racial discrimination or allowing same sex marriage in mind when he put his quill to the parchment, but his high minded language has been interpreted to do exactly that.
And aren't we all the better for it?

On the other hand, I heard Antonin Scalia interviewed a few months ago, and he was asked about torture, and the constitution's ban on cruel and unusual punishment.
Scalia replied that the constitution protected the guilty from cruel and unusual punishment, but did not protect the innocent from cruel and unusual interrogation, and since a suspect is presumed innocent, he thought it was OK to "slap someone around to get them to confess", because that's not punishment, once a suspect is convicted, the constitutional protection begins.

sneddog · #42 (**permalink**) 06-12-2008

Quote:

Originally Posted by Marcus1124

Which of the following Judicial Philosphies do you think Judges should ascribe to, and why? (please feel free to give any additional philosophies you think are not represented below):

Enduring but not Living: Judges should strive to apply laws based on what the language of the law in question would have been generally and reasonably understood to mean at the time it was passed.
Enduring and Living: Judges should strive to apply laws based on how today¡¦s society would generally and reasonably understand the words of the law, even if it fundamentally alters the clearly understood meaning at the time it was passed.
Living through the People: Judges should recognize that the Constitution was intended to be ambiguous in its meaning to facilitate changes to its meaning outside of the Amendment process, and that it is the people through their elected representatives who determine the direction of change and ¡§growth¡¨ of the law
Living through the Courts: Judges are meant to be the arbiters of a Constitution with no fixed meaning, but is left to them to decide what it means each day based on whatever notions they hold regarding the "evolving standards of decency that mark the progress of a maturing society¨

Enduring, but not living.

We have the greatest constitution on earth it forms the foundation upon which our republic is built. It must endure and never change without going through the process of a constitutional amendment.

For a great read on this subject, go here: JS Online: Scalia slams 'living' document philosophy

Mick Jagger · #43 (**permalink**) 06-12-2008

Quote:

Originally Posted by Marcus1124

These canons have existed for centuries, they predate the constitution

Let's see some evidence that they predated the Constitution....

ZZ555 · #44 (**permalink**) 06-12-2008

A government of the people, by the courts, for whomever. The courts become a 'Dictator by committee' with unlimited power, but leaving most of the drudge work to the other two branches.[/quote]

That's the way it's supposed to be IMHO. It took over thirty years for example, for someone to challange the Washington D.C. gun ban and when it finally was the case ultimatly ended up at the supreme court. If the SCOTUS were to get involved in the day to day "drudgery" (before being solicited to) I seriously doubt they would (or could) render any where near unbiased rulings.

Mick Jagger · #45 (**permalink**) 06-12-2008

Quote:

Originally Posted by Marcus1124

These canons have existed for centuries, they predate the constitution, they are the rules for how JUDGES are supposed to interpret legal texts.

Show us some evidence that the lawmakers meant for judges to use the rules you believe they should use....

Quote:

One of those rules, as a matter of fact is that where there is an EXPRESS declaration by the legislature that the text is to be interpreted in a certain way as part of the statute, than that is controlling (since such declarations by definition would remove any ambiguity upon which the judge would generally rely on the Canons to deal with).

Show us where that rule existed at the time the Constitution was made. Then show us where the lawmakers who made the Constitution ever made declaration that the text of the document was to be interpreted in a certain way.

Quote:

The Constitution presupposes this in conferring "the judicial authority" of the United States upon Supreme Court and lower courts under the judicial branch.

You have yet to show that the rules you want us to use actually existed when the Constitution was made....

Quote:

The rule DID exist prior to the ratification of the Constitution.

Where's your evidence?

Quote:

The "plain meaning" rule is among the oldest and most fundamental rules.

Show us where that term was used in the subject matter prior to John Marshall using it. Then show us that the rule predated the Constitution.

Quote:

Well, I can see it isn't just legal history and statutory construction you are defficient in your understanding of, but basic English as well. What you cited says THE SAME FRIGGIN' THING I HAVE BEEN SAYING! You are just too obtuse to recognize that:

If its the same thing, let's use the rule that actually existed at the time the Constitution was made....

Quote:

So, let's take your citation in parts:

Are you now saying we're going to use the common law rules of construction as the existed when the Constitution was made? That is to say, as they were articulated by the great Sir William Blackstone in his famous Commentaries?