Wednesday, July 14, 2010

Kagan Nomination--Even More Q's, Pt. 4 (Judicial Interpretation: "law as written," "the intent," "precedent," "legislative & people's wishes," etc.)

6 Months Since the Earthquake
[Again: No, I'm not there. Just keeping Haiti in mind, as well as other places where tragedy has caused suffering that demands assistance and reminding.]

It's pretty plain that the plain language of the law often isn't so plain and, even when it is, it often can't be applied that way.

"Intent," whether "original" or "particular" or "what they meant" or any other variant, presents just as much difficulty. Let's look at that.

If the plain language of the law is clear and its application makes sense, there is usually little reason to unearth the law's "intent." But as we discussed in the last post on New York Court Watcher--and in other previous posts to a point approaching ad nauseam--for Judges or Justices to simply apply the law "as written" would oftentimes make for extremely unreasonable decisions. In fact, the decisions would horrify the most ardent proponents (Senatorial & otherwise) of applying the law "as written."

We saw this with the Constitution's explicit tolerance for "no law" limiting 1st Amendment freedoms. No restrictions on any speech at all? We also saw this with the 14th Amendment's categorical prohibition against "any person" being denied equality under the law. Any person whatsoever, regardless? Likewise for the 2d Amendment's unqualified dictate that the right to bear arms "shall not be infringed." Not even reasonable limitations?

We also considered the difficulties in simply applying "as written" the Constitution's "due process" protection of "liberty." Neither of those terms, let alone the clause within which they are contained, are particularly amenable to extracting some plain meaning. The contours of "liberty"? The process that's "due"?

[See the discussion in Kagan Nomination--More Questions, Pt. 3 (Judicial Interpretation: "law as written," "the intent," "precedent," "legislative & people's wishes," etc.) , July 12, 2010.]

The Constitution is filled with such gloriously grand principles couched in terms insusceptible to some mechanical application "as written." (See also "unreasonable" searches, "cruel" punishments, "compelled" self-incrimination, "other [unenumerated rights] retained by the people," "privileges or immunities of citizens," etc., etc., etc.)

So then, if not "plain meaning" or "as written," why not just apply the law's "intent"? That is, what the law was supposed to mean. What those who drafted and enacted it really intended. Again, "original" or "particular" intent or intention, or any variant thereof.

Well, let's see what that would give us. Let's try it on the same Constitutional provisions we've been dealing with: the 1st, the 2d and the 14th Amendments.

The 1st Amendment was only intended to prohibit "prior restraints." That is, freedom of speech and press were intended only to prohibit the government from actually preventing speech or publication of one's views and sentiments. BUT, the government was perfectly free to punish the speaker or publisher thereafter. This "intent" was well settled and repeatedly recognized by the Supreme Court. (See e.g., Robertson v. Baldwin, 1897, and Patterson v. Colorado, 1907.)

Scandalous, insulting, offensive, and vulgar expressions could be punished. So could malicious and contemptuous criticism of government officials and government policy.

So, for example, in Patterson v. Colorado (1907), the Supreme Court held that the 1st Amendment was not intended to protect a newspaper that published articles and cartoons critical of the state's supreme court. In Abrams v. U.S. and Frohwerk v. U.S. (both in 1919), the Court upheld convictions for criticizing war and military policy. In Chaplinsky v. N.H. (1942), the Court said that the Constitution was never intended to prevent criminal punishment for profane or libelous speech--in that case, calling a government official a "God damned racketeer" and "damned fascist." And let's not forget that the Alien and Sedition Acts of 1798 were passed by a Congress and signed by a President who believed it consistent with the 1st Amendment which had been ratified just a few years earlier.

Would we really want the Supreme Court to apply such original intent? Can't "maliciously" or "scandalously" or "profanely" criticize a government official or policy without being subject to punishment thereafter? Criminal convictions for anti-war marches or newspaper editorials? For saying President Obama is a "God damned socialist"? For criticizing his health care plan as "communist."For calling his predecessor a "damned fascist"? For harsh criticism of the "liberal-activist" (or "right-wing") Justices of the Supreme Court?

Fortunately, the Court has not freeze-dried the 1st Amendment in accord with original intent. So, for example, in Near v. Minnesota (1931), the Court turned a corner and held that a newspaper could not be punished for "malicious, scandalous and defamatory" articles criticizing local law enforcement for its ties to gangsters. In Cohen v. Cal. (1971), it overturned a conviction for wearing a jacket bearing the words "F__ the Draft."

Straying even further from any original meaning particularly intended by the 1st Amendment, the Court in Hurley v. Irish-American Gay Group (1995), held that free speech included the right to exclude a gay group from a parade--even though the exclusion violated the State's anti-discrimination law. And earlier this year, in Citizens United v. F.E.C., the Court held that free speech included unlimited corporate spending on election materials.

So there's plenty for both liberals and conservatives to like and dislike when the Court strays from original intent.

But what is clear is that a strict application of the originally intended particular meaning of the 1st Amendment would be unacceptable today. It would severely curtail expression--especially that expression about government officials and policies and politics. Just where free expression is most needed. Do those (in the Senate and elsewhere) who insist that the Justices apply the Constitution as originally intended, actually want that? Regardless of how much they protest, the answer is obviously "No."

In the next post(s) in this series, we'll try "apply the law as intended" on the 14th Amendment's guarantees of equal protection and liberty/due process, as well as on the 2d Amendment's right to bear arms.