Monday, June 26, 2006

What is Natural vs What is Right, and the role of Judges

I would like now to continue my debate with Seth. You say:

To begin, I am happy to concede that the injury and destruction to the family spoken of by the Right is indeed a “red herring” in the gay marriage debate, as long as everyone is clear that this red herring is the central argument being used by most everyone opposing the legalization of same sex unions. In other words, I specifically included it only to negate its force. That is, it is imperative that we are all clear that this is not my red herring; I did not create a straw man to attack. I simply went at the dominant argument of the senators speaking in favor of constitutionally enshrined discrimination. And if you observe the statements of Santorum, Brownback, and their ilk, you will see precisely what I mean.
I agree. This is one of the weakest arguments heterosexuals make on this point. Homosexuality does not harm heterosexual relations. It does make heterosexuals feel uncomfortable seeing members of the same sex being so....close, but it is not harmful to heterosexual marriages. Most arguments made by heterosexuals against homosexuality deals with how perverse they see homosexuality. They cannot see it as a reasonable argument to back homosexuality.

The arguments heterosexuals should counter with are like this: Homosexuals claim their acts and their feelings and their inclinations are "natural." That has been one of their main arguments, and a pretty powerful argument at that. There is a serious flaw, however, in claiming a right to an action by calling it "natural." Gays point to the animal world to show that species not too distant genetically from our own are also predisposed to some degree towards homosexuality, as if looking at the animal kingdom should decide how humans act. I'm going to use a red herring here, but it is vital to understand that whether or not something is natural does not equal that being right. This should show why we are humans, why we are different than the animals.

There are many things that animals do that are "natural." They defacate and urinate naturally where they please, usually to mark their territory. We humans do not mark our territory by our pee because it is unsanitary. But while unsanitary is "natural," it is not right. Male animals duel to impress a female, like among mountain goats who bang their heads, sometimes until one dies. It is natural, but it is not right. Animals steal from each other left and right. A snake steals eggs from a bird without any legal recourse against the snake. It is natural. We don't call it stealing because there is no law, but that is what it is. The egg belonged to the bird, not to the snake. The bird did not willingly give the snake its egg. It was therefore stolen. Is it right? No. Is it natural? Yes.

A lion murders every single day of his life. So does a wolf. So does an owl. So does a shark. So do a host of other animals. We don't call it murder, but I'm sure their victims will say it was unfair. Is it natural for a lion to kill? Is it natural for a shark to take a bite out of anything where it smells blood? It most certainly is natural. Is it right? No.

There are numerous instances from the animal kingdom of natural things that are not right. They are also had among humans. It is natural to steal. It is natural to kill. It is natural to defacate and urinate. But is it right? Releasing our excrement is right, but only under the right circumstances, so as to be sanitary and healthy. We are not to kill nor steal. We teach ourselves to control those natural instincts. It is natural to want something that is not ours, but we teach each other to not take that which is not given to us. The more we legalize and sanction baser natural instincts, the less human we become, and the more a "natural man," not a "right man."

In the Book of Mormon, it says:
19 For the natural man is an enemy to God, and has been from the fall of Adam, and will be, forever and ever, unless he yields to the enticings of the Holy Spirit, and putteth off the natural man and becometh a saint through the atonement of Christ the Lord, and becometh as a child, submissive, meek, humble, patient, full of love, willing to submit to all things which the Lord seeth fit to inflict upon him, even as a child doth submit to his father. Mosiah 3:19
God is our creator. It is Him we need to aspire to, not the animal kingdom. Continuing on, you say:
As a moral argument, many of the early points you make are potentially forceful, Dan. However, it is imperative to recognize that, necessarily, morality can only play the most limited role in a society founded under the rule of law. You see, despite your easy presentation, there is no one fixed morality.
A few things here. I disagree with your interpretation that morality can only play a limited role in a society founded under the rule of law. Our difference with the animal kingdom is that our laws are all about what is right vs what is wrong, not about what is natural or unnatural. It is natural to kill, but it is not right to kill, so we make a law banning murder. Where I do agree with you is where the morality questions begin to differ among the various groups. I'm not a fan of making one morality issue be the absolute over others, but as I mentioned earlier, the issue of homosexuality transcends organized religion and affects all of humanity. Gays say it is natural for some humans to be gay. This means that humans belonging to groups that don't believe that are also affected. Where you are correct that one morality should not infringe upon another is the Pentecostal example. Pentecostals believe men and women shouldn't dance together. That has no bearing on whether or not Mormons can dance together and it would be foolish for Pentecostals to tell others they should not dance. But being gay affects Mormons and Pentecostals the same.
And if homosexuality is about identity, not solely about behavior, then asking people to deny this profound aspect is to ask them to live as incomplete people. It is much deeper than merely sexual impulse, Dan. Without the possibility of the sanction of marriage, there is no way for homosexuals to engage in any sexual behavior without either lying and destroying the lives of themselves and others (if they deny their true selves and marry a member of the opposite sex) or still living the life of the unmarried fornicator (whether as gay monogamists or otherwise). Sexuality is a key aspect of human life. In this respect, the push of the pro-same sex marriage movement is about equality; and from my perspective, if this means fostering a deeper level of acceptance of the lifestyle, so much the better. But I recognize that your particular version of morality means that we disagree on this point.
The issue of homosexuality is certainly far more profound and troubling than other "natural" inclinations found both in humans and animals. It is most troubling because it deals with an aspect about our humanity that we still don't fully understand, and that is our sexuality. Though proven "natural" to some extent, it is still not right. That is a tough answer, because it is not an answer people like to hear. Life is tough. Life is unfair, and sometimes in the worst possible ways. Does that mean we should lower our standards of life and of what is right? In my view, no. It would end bad for us to lower our standards.

I wish we humans understood human sexuality better. We most certainly don't with the way we go about uncontrolably mating with numerous partners, getting into unbreakable habits that chain us down into "natural" lusts that degrade our moral character. I'm not going to attempt an understanding of sexuality on a blog. It would do it injustice because 1) there is not enough time and effort to get the whole picture, 2) it is a sensitive and sacred topic (the power to procreate is a Godly power), 3) many will not understand anyways because the moment one starts mentioning anything related to copulation many will not think seriously about it, but instead snicker like 12 year old boys.

Continuing on to the legal debate, you say:
Laws and especially the Constitution are often sufficiently ambiguous that judicial interpretation and clarification can indeed look like the creation of positive law, but that is rarely what it is. Especially under the 14th Amendment, what you are really seeing is a judicial determination of inherent, one might even say embedded, rights lurking within the Constitution. This document contains more than mere positive rights after all, and is filled with tension and ambiguity designed to propel intellectual examination and soul searching on the part of the interpreter.
While I am not versed in constitutional law (or any other law for that matter), but know only from rudimentary studies in school and on my own time, these are my thoughts. I agree that the Constitution is very ambiguous in regards to many things, (it is after all a very short document whereas laws passed take up usually several hundred pages to be sufficiently unambiguous legally on whatever topic a lawmaker tackles). The Founding Fathers, taking from English common law, understood the need for a maleable foundation to our law structure. That said, I still stand by the assertion that intent is key to understanding a piece of law, and judges are to judge the intent of a law and pass judgment thereby. Perhaps this is just a matter of what the role of a judge is. Does the Constitution lay out what the role of a judge is?

Alexander Hamilton writes in the Federalist Papers about the power, influence, and strength of the Judiciary in the American government:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.'' And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
Now, granted I am not learned on the writings of Mr. Hamilton beyond what your normally decently public-school-educated American knows, but it sure seems to me that he implies in this Paper that a judiciary that is unified with the legislative, with the power to regulate the actions of the citizenry should be feared, and that what is best for the public and the nation is a weak judiciary, one with no real influence beyond judgment.

The judgment in Massachusetts is an example of the judiciary doing all three things: judging, legislating, and executing. It rendered a judgment saying that the state of Massachusetts must allow gay marriages, even though there is no law defining such unions. They force the legislative to change the books, and force the executive to enforce the new ruling. This seems to fly totally contrary to what Mr. Hamilton wrote regarding the purpose and structure of the judiciary.

In discussing this topic, on the proper role of judges and the judiciary, Mr. Lewis discusses Joseph Story's treatise on judges. Mr. Lewis states:
Paragraph 14 indicates that the “will of the people” can be considered in two respects, namely (1) the will of the people who originally adopted the Constitution and (2) any subsequent contrary will of the people expressed by their agents through legislative acts. He said that the former is more fundamental than the latter and should prevail. He also said that this original will is not only superior to the legislature, but also the judiciary – inferring that when the court “interprets” the Constitution contrary to this original will of the people, the judges are violating their public trust.
I'm sure you are familiar with who Joseph Story is, but to those who are not, here is a good but brief biography.

Continuing on, in his Commentaries on the Constitution, Supreme Court Justice Joseph Story states:
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature....The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.
The Supreme Court agreed with his view, as Mr. Lewis shows in his article. Lewis quotes from that case:
Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.
Mr. Lewis continues with more of Justice Story's commentary. He then adds his analysis from what Chief Justice Marshall said in Marbury v Madison. Mr. Lewis states:
In other words, all authority regarding the Constitution emanates from the people themselves from the bottom-up and the principles contained in the Constitution are deemed to be fundamental and permanent. Why? – Because (1) the people, through great exertion, have set forth their desired form of government – and the limits applying thereto – under the Constitution and (2) the formal democratic amendment process set forth in the Constitution itself is so difficult that it cannot occur very often. This implies that nobody – and this includes the judiciary – is allowed to tinker with those principles other than the people themselves as a collective and democratic super-majoritarian whole. .... Judges should try to interpret the document in a manner that is consistent with the intents of the drafters. Otherwise from generation to generation the meaning will change radically when it was supposed to be relatively immutable. If we don't try to tie our interpretation to the original intent, as best we can decipher it, then we will be governed by a "rule of men" rather than a "rule of law". The document will simply mean whatever a majority of 5 people on the Supreme Court says it means. Rather than it being a "living document" it will become a "dead document" since the clear language and intents represented therein will be freely changeable at the fancy of 5 people. If we allow this to happen, then we should stop the charade and stop using the words "constitutional" and "unconstitutional" and replace them with more accurate descriptors like "Supreme Court-able" and "Un-Supreme Court-able."
Mr. Lewis quotes Thomas Jefferson who said:
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."
Yet another quote from Joseph Story, quoted in Mr. Lewis's article:
“The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties [who drafted them.]”
It seems clear from the Founding Fathers, yet again, that their intent was to create a judicial system that was the weakest of the three branches, that its function was merely to interpret the INTENT of the legislative branch. And therein lies the main problem in regards to gay rights. Have any previous laws intended for gays to get the rights they seek today? We most assuredly can answer that question with a loud, "NO!" I showed previously what the Founding Fathers thought about sodomy and same sex affections. It is clear from that and the state laws in effect back then that they would NEVER have intended for gays to be allowed to get married under American law. They also made it explicitly clear that the will of the people should rule the day, not the will of judges, as shown in these numerous quotes from Mr. Hamilton and Mr. Story. I'm sure I can find many other Founding Fathers who thought the same, if I go digging deeper.

There is a difference in creating a maleable Constitution that allows for change, and one in which judges are the changers of laws. It is clear that the Founding Fathers intended any changes to the Constitution, and to the laws in general, to occur through the will of the people, through the legislative. Judges have slowly grabbed up far too much power they were never intended to have. We were warned about this, and now they rule over America, unelected. I do not trust anyone in power who I cannot vote out of power. Judges were never meant to have power, only interpretive abilities.


At 6/27/2006 01:23:00 PM, Anonymous seth wilder said...

Again, my apologies to the extent that I repeat points that I have already presented. Still, you once again present me with a stew that is far too ripe for criticism for me to leave your statement unanswered.

While it might seem like more of a semantic argument than anything else, I have to take issue with the assertion that animals, as opposed to humans, “steal” or “murder” anything. Each of these terms is loaded with a complex of values. In other words, asserting murder involves a value judgment on the part of the one who defines the activity. Animals, unlike humans, are incapable of this kind of value judgment. Placing what is essentially a moral or ethical tag on what are in fact hardwired animal behaviors displays not only a lack of basic biological knowledge, but an unfortunate degree of anthropomorphism.

Animals and humans are unalike in that only humans are capable of the kind of high level cognition that leads to the ability to judge behavior, or even to fully comprehend the difference between right and wrong. I would argue that neither the predator nor the prey in the animal kingdom has even a rudimentary understanding of what might or might not constitute “fairness.” While it is comforting and pleasant to ascribe human emotions and motivations to our animal neighbors, it is for the most part highly inaccurate. This is why biological scientists rarely attach these kinds of judgments.

That is to say, while you concede that much of your argument concerning what is “natural” is a red herring, I am not sure that you comprehend the depth of its shortcomings. If one believes in the theory of evolution, then it makes sense from a developmental biology standpoint to look for signs of human behavior in the animal kingdom, especially among the higher order primates. This is why there has been interest and excitement in the recognition that there is a certain amount of homosexual behavior among some monkey species. Accepting for the sake of argument that these animals, or something like them, represent our distant cousins, then observing these behaviors makes a case for homosexuality as a function of inherent biology, rather than one of active choice. Another way of saying this is that it might well point to inherency, and inherency would render homosexuality a poor source of moral condemnation.

I suppose if it were necessary to pick apart this “what is natural” argument on a closer level, it suffices to note that humans kill animals all over the planet. We kill them for food, to make room for our own habitation, and even for sport. If one is to accept that animals “murder” other animals to predate and survive, then one must concede that humanity is the grandest mass murderer on the face of the earth. With technology on our side, coupled with our insatiable appetite for self-gratification, it should come as no surprise that we are the most efficient predators. But consider that your own argument to this point collapses under the weight of its own equivocation. At least, it does so unless you intend to condemn a central aspect of human behavior —our particular brand of stewardship of the animal kingdom.

Likewise, that we do not urinate to mark our territory due largely to reasons of sanitation and aesthetics also points to the large developmental divide that separates humans from the animal kingdom. Higher cognitive function is what has allowed us to develop far more effective and sophisticated means of marking our territory: borders, fences, and the like being the most obvious. Sanitation represents an understanding of disease and health that is completely alien to any other species.

We are the only among the earth’s creatures that is observably reflective and also the only species that exhibits precious little hard-wired behavior. Unlike animals, human choice is a function of thought and judgment. We contemplate and consider, where animals will often charge on instinct.

In the natural world, right and wrong quite simply do not exist. Again, these represent the synthesis of a complex of values. We attach condemnation to certain behavior, such as murder and theft, which is largely related to the intent of the person so condemned. And only humanity, with the advanced ability to choose courses of behavior volitionally, is worthy of this condemnation, and then only when this condemnation is warranted. Not all killing is murder. This is likely why the code of Hammurabi and the Decalogue each translate better as proscriptions on murder. That is, they do not condemn killing per se; rather, they attack the malicious intent to deprive another human of life.

Is it natural to murder or to steal? I’m not sure that I agree with you, as I do not accept your basic premise concerning attaching these labels to the hard-wired behavior of animals. I will concede that people murder and steal with an unnerving frequency, but I am not convinced that this makes the choices natural. Instead, I would argue that these seem sometimes like easy choices, or that the thoughtlessness of an individual, or that individual’s particular morality or amorality or even simple expediency makes these seem like viable options. As far as defecation and urination are concerned, these are not only natural, they are inevitable; and as importantly, humans are showing no signs of diminution of either practice. These are biological imperatives for a healthy physiology, not unlike shedding skin or breathing.

I disagree with your assertion that our laws are about what is right versus what is wrong. Instead, I would assert that our laws are largely based on what is most effective at creating and maintaining an ordered society. You can attach the values that you prefer (such as right, wrong, or whatever), but even those among the Ten Commandments that deal with behavior towards one another point most certainly to fundamental principles of an ordered, relatively peacefully coexisting society. This means that the reasons that these behaviors are condemnable and punishable are the damage that they do to society. And this is why the only reasonable punisher is the state, and why there is little room for the individual’s vengeance to reconcile a private wrong.

This is also why criminal prosecution is the state versus the accused. For criminal offenses, especially, the injury is to the society as a whole. Punishing individuals who violate laws meant to foster community and quiet enjoyment is the most efficient way to maintain an ordered and organized society. Private wrongs are civil, and exist to accomplish the other side of the same equation. And civil wrongs, such as those related to contracts, torts, and the like need not be expressed with a morality at all. Rather, these laws are designed to place the individual in the position that would have been reached with performance in the case of the former, and to make the injured whole in that of the latter. Morality is not necessarily central to either concern, unless in the most generous sense, as a substitute for fairness, say.

And in each of these instances, the law serves as the organizing structure to allow the members of society to understand what the society has deemed acceptable and unacceptable behavior. In a country such as ours, which follows a secular rule of law, it is critical to minimize the intrusion of morality in the narrower sense. This means that it is important to prevent specific sub-groups from defining things in those kinds of favored and disfavored terms. At the risk of beating a dead horse, “morality” has no natural stopping point, and is not well defined. Your own example from Pentecostalism is pointed in this regard; it also establishes why it is dangerous to allow morality to make positive law.

Or, rather, while a certain amount of ethics and morality is inevitable, as each human (including even lawmakers and judges) possesses a complex of values born of nature and nurture, it is crucial to only allow narrower moral judgment to play the smallest role necessary. It goes without saying that an ordered society cannot allow people to do whatever they want. But it should also resonate with you that, for some section of America, the prohibitions and restrictions on homosexuals are identical in force and kind to the Pentecostal’s forbidding of dancing.

And let me reiterate here that it is pat and simple to use the fact that life is unfair, an undoubted truism, as a weapon of justification for denying homosexuals equal rights. This is because it does not affect you personally to do so, nor does it literally affect me. However, I would call again for you to consider how you would feel if you were on the other side of this coin. Imagine if you were gay, and wanted to express a deep and permanent connection to a chosen life partner who was similarly situated. And consider that the legal institution of marriage, not the religious one, is the only completely effective means for doing so in our society. I cannot imagine that someone as generally thoughtful as you could remain so dismissive.

Hamilton’s thoughts on the judiciary are interesting, and contain many truths. But I am going to disagree with your interpretation of what he said, at least in part. The position that the judiciary is the weakest among the three branches comes from several things. First and foremost, it is a reaction to the horrible excesses of the general warrants popular and all too common under British rule during the Terror, which was recent when he was writing. His analysis of the relative role of the judiciary in the Federalist Papers can be seen as primarily his way of assuaging the fears of a public uneasy with autonomous judges with unchecked power. He wanted to avoid people disappearing in the night, trials run entirely with hearsay evidence or no ability to put forward a defense, and a society where there was no safe haven from the caprice of power hungry men and an equally power hungry judiciary often operating in cahoots with them.

As Hamilton expresses, to have an effective judiciary it is important for it to be an autonomous branch not directly beholden to either the legislature or the executive. When he speaks of the danger of a unified judiciary/executive or unified judiciary/legislature, he is largely calming these fears while at the same time pulling for judges that are appointed for life, difficult to remove from office, and also judges who cannot have their pay screwed with by the legislature that authorizes it. In other words, what ended up in Article III of the Constitution.

Equally, when he describes the judiciary as the weakest of the three branches, he means this in a narrow sense, as well. Here he is speaking largely to the fact that the judiciary has no enforcement power whatsoever. They do not have an army; nor do they have police powers; nor do they have the ability to raise and spend money or create an infrastructure. They are dependent instead on the willingness of the other branches to enforce their careful and considered judgment, whether the other branches agree with it or not. And they are also dependent on the willingness of the populace over whom they preside to abide by the judgment.

It is a testament to the rule of law in the US (and not a good source for criticism) that the legislature and the executive of Massachusetts took the ruling of the state supreme court seriously and enforced it, despite the fact that many, including the state’s chief executive were uncomfortable with it. But it is inaccurate to say that the state court legislated or executed the law. They did no such thing. Instead, they merely expressed their careful and considered judgment as to what they thought the state constitution mandated towards this group, and the other branches of state government grumblingly respected the court’s judgment.

I would also disagree with you regarding the lack of a law defining such unions in the state. Rather, the state “supremes” interpreted the constitution as demanding recognition under the existing laws of the state. It might seem like a somewhat niggling point, but it is essential to understand this fundamental concept. There are indeed inherent rights lurking within broader constitutional provisions. This is true not only in Massachusetts, but in the 49 other states, as well as the federal Constitution.

This lurking is where the bulk of the rights protected under the Fourteenth Amendment are found. The rights analyzed under both the Equal Protection Clause and the Due Process Clause are largely extrapolated rights. Consider the language of Article One of this amendment:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

From this relatively brief paragraph arises a veritable cornucopia of recognized rights for individuals. Under what is known as “substantive due process”, within the word “liberty” is found the right to reproductive freedom, the right to intimate association, the right to death with dignity, etcetera. And the “equal protection” phrase has led to wide scale enforcement and expansion of civil rights, whether race based, national origin based, gender based, legitimacy based, and the list goes on.

The important thing is that the Supreme Court has found within the confines of this narrow passage in an amendment such rights as the right for married and unmarried individuals to opt for contraception, the right to interracial marriage, desegregation in public and most private accommodations, the right (with certain restrictions) to choose abortion over forced childbirth, the right of family to define its own nuclear structure without the interference of the state, the illegitimacy of so-called anti-sodomy laws, even the right of a competent individual to refuse medical treatment even when doing so means certain death. Naturally, these rights all still contain restrictions, as do all rights. But the important thing is that these decisions of the Court do not represent the creation of positive law. Rather, they are part and parcel of the judicial role of interpretation, which includes making sense of the complex of values existing at present, as well as the original intent at the time the constitutional language was adopted.

And the intent of the drafters is not so readily determinable, nor is it the necessary stopping point in constitutional analysis. Intent is important, as is the plain language of the document, but there are other axes that need to be examined by the judiciary as well. Judge Learned Hand famously compared the task of legal interpretation to that of interpreting a musical score. There is never one “good” or one “correct” way to guarantee that your interpretation necessarily comports with what the composer of the piece had in mind; and it is also unreasonable and simplistic to assume that there is only one correct way to perform a piece of music. It makes sense to select a particular emphasis when working with certain musicians or in a particular musical context. Similarly, the interpretation of law involves a detailed analysis of several relevant factors, but also necessitates selecting a particular emphasis and direction, and must take into account the posture of the judges interpreting the relevant law.

As Justice Stephen Breyer describes the process of judicial interpretation, it involves looking at six aspects (at least): (1) the plain language of the text along with any other related language in the document; (2) the history of the document, including any history that shows what the language likely meant; (3) the tradition related to how the relevant language was, and is, used in the law; (4) precedents interpreting or expounding on the phrase at issue; (5) the purpose of the phrase, or in constitutional areas, the complex of values that the phrase embodies; (6) the likely consequences of one interpretation or of any alternative interpretations.

Congressional or legislative intent is indeed a factor of judicial interpretation, but it is hardly reasonable to consider it the only relevant factor. To do so diminishes the Holmsian value of the “organic” Constitution. Intent cannot and should not be the only factor, as making it so limits the value of the judiciary to the point of near irrelevance.

For one thing, congressional intent is rarely as clear as its proponents make it seem. After all, we cannot see into the hearts of the people voting, and there could be any number of political machinations involved in even the most straightforward piece of legislation. The congressional record is also of limited value. This is because a huge legislative body has voted to approve a law that only a few had a say in drafting, and that only a few will voice a recorded opinion on one way or the other. Also, at least in regards to state constitutions, not all states even have a legislative record, so this option is often completely off the table.

It is also imperative to appreciate the most significant value that the judiciary offers in our coordinate branch system of government. Namely, it sits as the only counter-majoritarian influence in the system. Precisely because federal judges are not directly subject to the mercies of the legislature or the executive or the whims of the voting public, they can render unpopular decisions when doing so is constitutionally warranted, arguably even necessary, to effectuate the values of the document or the purpose of the passage under examination.

There is undoubtedly a danger to an unchecked judiciary as well, but the weakness of the branch described by Hamilton is precisely what renders this a non-problem. Without the means to enforce their rulings, the court is hamstrung by the willingness of the politically vulnerable branches to enforce these decisions. And there is a far greater danger in always allowing the majority rule to hold sway. If we have learned nothing else about humanity by now, we should at least know that the rule of the majority almost invariably leads to a rule of the lowest common denominator, and historically enshrines the most horrific, racist, hateful practices. This is so because the oppressed minority is indeed that, a minority, and their voice is not loud enough to be heard over the cacophonous din of the majority.

Although he did not aim this quote precisely at constitutional strict constructionists, or those who favor “original intent”, or even those who insist on the reductionist tautological syllogism that “democracy means majority rule, America is a democracy, therefore majority rules”, perhaps the poet A.E. Houseman put it best:

“Frailty of understanding is in itself no proper target for scorn and mockery. But the unintelligent forfeit their claim to compassion when they begin to indulge in self-complacent airs, and to call themselves sane critics, meaning that they are mechanics. And when, relying on their numbers, they pass from self-complacency to insolence, and reprove their betters for using the brains which God has not denied them, they dry up the fount of pity.”


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