Thursday, October 29, 2020

"But 'Sordello,' and my 'Sordello'?"

I actually got this from Raw Story, but a tweet is easier to use than a picture (what does a picture of legal interpretation look like?), and this is the only tweet I could find.  Anyway, some of it sort of set me off writing, and there we are.  Or rather, here we go:

 This is the idea that US Supreme Court justices should interpret federal law and the US Constitution “as written,” not as they might wish they were written. It’s a lie. First, “interpret” does not mean “see what you want to see.” It means “interpret” areas of law that, as written, are unclear. Second, and more importantly, the Constitution is not a simple document. It’s as full of contradictions as America is. It is also a document that’s been rewritten over the course of our history. When someone says “interpret as written,” does that mean in 1789, when slavery was OK, or 1865, when it was abolished? Once you see the lie, you wonder why the Republicans keep telling it.

Frankly, this barely scratches the surface of what's wrong with "originalism."  First, there are rules for interpretation in the law.  There are rules for statutory interpretation, and rules for Constitutional interpretation, and even rules for common law interpretation.  These rules are meant to keep interpretations similar enough to ensure justice is done, not just "I'm the judge and that's why!"  To say these rules are being violated with impunity by ideologues on the bench is to belabor the obvious.  But "interpretation" in law does not mean "'interpret areas of law that...are unclear."  Strictly speaking, the application of the law (statutory, Constitutional, common law) to any set of circumstances is "unclear" because the slightest change in circumstance ("change the facts, change the outcome") can mean the prior interpretation of the law as applied to a similar (but not the same!) set of facts, is not applicable.  That is the whole basis of the common law:  that general principles (rules of law) always apply, but how they apply to render justice, depends on the facts under consideration.  Change the facts, change the outcome.  So interpretation of the law always rests on interpretation of the facts.  Brown v. Board, for instance, interpreted the situation of "separate but equal" and found it, despite Plessy and other cases, to no longer be in keeping with the Constitution.  How these interpretations are grounded is of vital importance.  Roe v. Wade rests on the guarantee of due process in the Constitution (5th and 14th amendments, which were written under such differing circumstances that any "original intent" is absolutely inexplicable and impossible to deduce).  Ruth Bader Ginsburg argued, outside any court opinion (so far as I know), that Roe should have been based instead on the guarantee of equal protection of the laws (also a fundamental Constitutional provision and interpretation).  Ginsburg's argument arises from her experience as a woman, and her legal knowledge and acumen.  But her experience is crucial here.  Roe v. Wade was decided before there were any women justices on the high court.  It did not occur to the men to see (i.e., "interpret") the situation before them (the inability of Roe to be able to decide for herself whether to remain pregnant) as a question of equal protection of the laws.  That argument, in fact, was one of the key legal insights RBG brought to the law and to Constitutional interpretation.  It is a very solid legal argument, especially as "equal protection" is a fundamental argument of non-ideological jurists (I exclude almost the entire Roberts court by that designation; it's intentional), one that is, in a non-legal metaphor, elemental.  It is so foundational, in other words, it cannot be broken into those who are protected, and those who aren't (well, not anymore.  It once worked that way, obviously; even after the immediate passage of the 14th Amendment).  These kinds of "elemental" (i.e., not reducible further into components of law) interpretations are what "originalists" call "settled" law.  Except, of course, they aren't really settled, to the true ideologues (like ACB, who thinks Scalia was a bit squishy in his originalism, which is why she calls herself a "textualist.")  So the fundamental problem with originalism/textualism is that it tosses out the rules of interpretation, and replaces them with the ideology of the judge in the case.

That's one problem, anyway.  And I'm nutshelling it because this isn't a law review article, and my knowledge of these interpretive rules has atrophied from disuse in the decades since law school (legal practice has a lot to do with facts and precious little, really, to do with statutory interpretation, at least on this level.).  The other problem has to do with "textualism" as a concept.  That one brings in my training in literary analysis and interpretation.

The rules here are largely developed in argument.  In a sense, there are no rules; but rather like conspiracy theories, which create their own set of rules and are opaque to non-participants, the rules of literary interpretation depend on which approach you choose to take to a text.  That can lead you off to deconstructionism and structuralism and new historical criticism and colonial-culture criticism, etc., etc., etc.  I don't mean to go there, but rather with a plain insight from post-modernism, which is so simple and direct it should be a commonplace:  you can't possibly know what the author meant and determine through intepretation that meaning of a text.  You can't even presume the author is in control of her text, and can determine the interpretation.  There are only clouds of interpretation, and the one with the prevailing argument at the moment, wins.

Take the infamous cases on race:  Plessy and Dred Scott.  Had the Warren Court been ruling in the late 19th century, the Court's authority would have been shattered and disaster would have prevailed in Constitutional law and interpretation (it does now, as a result of Brown v. Board and a number of other Warren Court rulings Mitch McConnell and others fervently hope they will see reversed).  In the post-war 19th century, it would have been worse.  Does that make Plessy and Dred Scott correct interpretations of the law?  Of course not.  But even the laws of Moses (which some incorrectly label the "laws of God") were reinterpreted and reapplied after the Exile.  That's why the Torah has Leviticus and Deuteronomy.  The law was not supposed to be fundamentally changed: but which is the "original"?  And there is a whole set of commentary on the Hebrew Scriptures, called midrash.  It is nothing but arguments about how to interpret scriptures, line by line.  What does it mean not to "work" on the Sabbath?  Some modern interpretations say it means not turning on a light switch.  We gentiles may think such distinctions bizarre in the extreme, but I've been involved in arguments in church about how to decorate the worship space at Christmas, right down to who gets to touch and place what.  And the argument there is much, much weaker than honoring the word of God.  The argument there was always "We've always done it this way!" Which argument is more bizarre?

Originalism presumes there is a "meaning" in a text which was established by the authors of that text (and worse, by many authors who all had a common agreement, rather than reached a consensus rather than toss out the baby and the bathwater, even if the meaning they saw in the final text was no stronger or better than bathwater) and that meaning can be discerned.  How, is the pertinent question.  I can't discern what T.S. Eliot meant by "It is impossible to say just what I mean!," though I can tell you what I think it means, because "Between the Idea and the reality/Falls the Shadow."  Originalism admits no such shadow; but human experience, and the law (which is built primarily on human experience) does.  And that's why there are laws for statutory interpretation, or Constitutional interpretation, or common law interpretation.  And why there is no good argument for Originalism as a method of Constitutional interpretation.  But it has bugger all with the words being unclear (although the Second Amendment is as poorly constructed a sentence as I've ever come across), and everything do with their application being either unclear in a situation, or undesirable in a culture that has made the gun a holy icon (that's another discussion).

The Republicans are not “pro-gun.” They are pro-intimidation. They are pro-anarchy. They are pro-vigilante justice. While the Second Amendment is (arguably) about the right to self-defense—as written, it’s about militias and national defense—it does not in any way, shape or form empower one class of people over and at the expense of another class. As it is, Republican jurists have repeatedly seen what they want to see so that the desire for peace and security is second fiddle to the desire for unlimited firepower. It’s no coincidence the Republicans went gun-nuts after the election of the first Black president. Democracy is no longer a means to power. It is now an obstacle.

I'm not going to argue that point, because I agree with it.  I only pause to point out there have been a number of stories of shootings in and around Houston lately.  One involved a man who shot his own son when he opened the door to their apartment, and then he killed a police officer and wounded another.  Why?  He feared being deported back to Mexico.  A young woman was shot to death in a truck with her boyfriend, by her ex-boyfriend, who was mad at her.  There have been several such shootings lately, and I keep wondering where the "good guy with a gun" was, especially when two people are shooting at each other, and bystanders are the only ones wounded or killed.  And I keep thinking how hard it would be for these people to have been killed if we hadn't re-interpeted (very recently, and I don't mean the Scalia penned Heller decision) the Second Amendment as a literal license to kill (well, a license to bear arms, or just buy them freely and easily, is the same thing, even if the killing is punishable by law).

This is the idea that “life” is so precious abortion must be outlawed. In fact, “the sanctity of life” is conditional. It doesn’t apply to capital punishment. It doesn’t apply to the sick, hungry and poor. It doesn’t apply to the 550-some kids taken from their immigrant mothers. And, most importantly, it does not apply to “the unborn” when it’s politically inconvenient. Anti-abortionist get mad when “fetal tissue”—actually, stem cells—is used in science. But they were OK when “fetal tissue” saved Donald Trump. Set aside all these conditions, however, and “the sanctity of life” is totally meaningful.

Let's just go ahead and hook that one up to this one:

This is another one of those principles that’s always true to Republicans except when it’s not. States have the right to control their destinies when the federal government is trying to force states to treat non-white human beings as human beings entitled to the blessings of citizenship. But those rights are conditional when it comes time to cut taxes for the obscenely rich and pay for it by stealing from states that did not support a Republican president. Republican justices, meanwhile, always stand for states rights—unless they dampen the fun of undercutting Democratic voters. In 2000, they ordered Florida to stop counting Florida’s votes. A recent ruling has the makings of a repeat. 

Both rest on the same invalid argument because, like originalism/textualism, it's an argument of convenience.  Nobody knows what state's rights actually are, or what life is sacred, but they know it when they see it, and it's usually white and well-off.  Black lives don't matter, no matter their economic status, and all poor people are effectively invisible and to be written off.  I will take exception to that last sentence, though, because Bush v. Gore turned on the question of how Florida conducted its recount.  The Court found that Florida had different standards for counting the votes (or re-counting) for different parts of the state, due in part (IIRC) to the use of different kinds of ballots in different areas (the famous "butterfly ballots" and the "hanging chads".  Those were not universal across the state.).  This led to the issue of how to handle these facts and insure a fair recount. An issue of Constitutional law, in other words, or more precisely the equal protection of the laws.  If different standards applied to different areas of Florida, what would a fair recount look like?  Would a vote in Miama be as protected and validated as a vote in Tallahassee?  The Court found it could not be, and that the law required a count by a date certain, which Florida couldn't meet.  Some argued the Constitutional infirmity had to take precedence over even the statute, and a remedy allowed (a recount based on a fair system of assessing votes, not different systems for different areas).  That argument did not prevail.  Was the Court intent on "undercutting Democratic voters"?  Or was it intent on seeing the laws equally applied to the protection of all interests?

It's a matter of interpretation, isn't it?

1 comment:

  1. This is quite close to what I meant to infer in my critique of the SAT interpretation of Wordsworth's Prelude.