I Yam What I Yam

Popeye the Sailor Man was a popular cartoon when I was a kid. He was one of my heroes, because he had no pretense. His motives were transparent. He was just a simple sailor, and I dreamed of sailing the seas. He had a funny accent, he said “yam” for “am”. His song was simple:

I'm Popeye the Sailor Man, I'm Popeye the Sailor Man

I yam what I yam and that's all what I yam

I'm Popeye the Sailor Man

popeye

I was thinking of Popeye this morning because I have lately found out that I am what is called a judicial textualist. Google gets me the following definition:

Textualism is a formalist theory that primarily interprets the law based on the ordinary meaning of the legal text …

Now, that seems bozo-simple to me. Popeye would understand it. A law says what it says. You read the law, you see what it says, and you interpret it based on the ordinary meaning of what it says. What’s not to like?

Heck, I never really thought that there could be another option. If a law clearly says you can’t dump cadmium in a river, what else could it possibly be interpreted to mean?

So what would another option be? What else would you consider when looking at a law? Well, the quotation above continues:

and not considering non-textual sources such as intention of the law when passed, the problem it was intended to remedy, or significant questions of the justice and rectitude of the law

Huh? For me, none of those things should be considered by a judge. it is NOT up to a judge to decide whether a given law is just. That is a moral judgement, not a legal judgement. Authority for judges to make moral judgements in place of legal judgements is found nowhere in the Constitution. The judge gets say what laws are Constitutional, not what laws are “just”.

It is also NOT up to the judge to look at what the law was “supposed to do”. Look at the record of unintended consequences of laws. Very few laws do exactly what their authors supposed they would do before they were passed. So why is a judge sticking his nose into a situation that occurs with most laws? If there is a bad law that doesn’t do what it was supposed to do, the Constitution says the LEGISLATURE needs to fix that, not the Judicial system. Judges aren’t supposed to patch up bad laws.

Finally, looking at the inferred intent of the person who wrote the law is madness. There is an ancient law that says “Thou shalt not kill”. Should we consider the intent of the author of that law in understanding what that law means … or should we just say “That law says I should not kill so it probably means I should not kill, duh, because if it meant something else it would say something else”.

The same is true of all of our laws. The authors’ intent is immaterial. The law means what it says. For example, we have a law saying you can’t dump cadmium into a river. Cadmium is a heavy metal that is poisonous, so people around the world find this to be a good law.

But the intent of the authors of that law banning cadmium dumping is meaningless. Perhaps they wanted to fight the cadmium producers cartel. Perhaps they supported an alternative technology. Perhaps they thought cadmium in the rivers was a Communist plot to drain our vital bodily fluids. Perhaps anti-cadmium lobbyists donated millions to their campaign.

Doesn’t matter. None of that matters. Just like Popeye, the law says what it says and that’s all what it says. A judge can’t rule that “It’s OK to dump cadmium in a river because I don’t like what I infer about the intent of the authors of the law”. That way lies anarchy.

Another separate significant difficulty with interpreting the law based on the inferred intent of the authors of the law is that this information is not generally available to the governed. I’m the poor jerk who has to obey the law. I have nothing to base my actions on but the text of the law. So if I do something based on the clear ordinary meaning of the text, a judge should NOT be able to say “With my brilliant legal insight into the mind of the law’s author, I know this law means something totally different from what the text says” and find me guilty of breaking the law.

In short, a judge should NOT be able to say that the law does not mean what the law clearly says. It means just what it says. If it says no cadmium in the river, that’s what it means, regardless of the author’s intent.

I bring this up, of course, because of the latest judicial overreach by another so-called judge. A judge in Hawaii has stopped President Trump’s latest Executive Order (EO) delaying immigration for three months from six countries. The amazing thing about this judge is that he’s taken up mind reading and not only that, he thinks it means something.

He’s claiming that this identical Executive Order would be legal if it were issued by a President whose motives were pure.

Seriously. He’s saying this EO is un-Constitutional because of the President’s intent. That means that if only the President had a warm, pure, Obama-loving heart, then that same identical law, same exact wording and not one comma changed, would be perfectly Constitutional.

Say what? That makes no sense at all!

Let’s pause to consider this. We could have two laws, with IDENTICAL WORDING, and one would be legal while the other would be illegal. How is anyone in the system supposed to be able to make sense of a law like that, from me in the street, to the cops enforcing the illegal/legal law, to the judges expected to rule on my actions?

This is the fundamental underlying problem with judges considering things outside what are called the “four corners of the text”. It leads to a logical contradiction, a “Schrodinger’s Law”, a law which is both legal and illegal until a judge opens the closed box of the author’s mind and divines their hidden intentions.

schrodingers cat

So yes, this latest judicial madness has shown me that I’m a textualist. I’m with Popeye on this one—a law means what it says and says what it means. Considering the intent of the author of the law leads to a logical impossibility, a law which either is or is not Constitutional depending solely on who wrote the law. That way lies legal madness.

The only good news in all of this is that Judge Neil Gorsuch, who will almost assuredly be the next Supreme Court Justice, is an unabashed textualist. So there is hope for our legal system.

To summarize:

We cannot have a law which would be Constitutional if written by one woman and un-Constitutional if written by another woman. That makes no sense at all.

We cannot have a law whose meaning cannot be determined by the average citizen. I can’t read minds like the judge in Hawaii. If I can’t tell what the law means based on the ordinary meaning of the “four corners of the text”, I cannot be expected to follow the law.

THEREFORE, judges should not and must not consider the intent, the desires, or the moral rectitude and spiritual purity of the author of a law. All of these are “ad hominem” arguments, which is Latin for “against the person”. Ad hominem arguments are arguments against the author herself instead of arguments against her words. Considering any of these ad hominem claims about the author inevitably leads to a law which would be Constitutional if written by one woman but un-Constitutional if written by another woman.

I mean seriously … judging whether a politician’s laws are Constitutional by looking at what she said during her campaign? Think about all of the goofy things that politicians on both sides of the aisle have said in order to get elected! That argument doesn’t even begin to pass the laugh test.

Here’s the rude truth. Good people have written bad laws. Bad people have written good laws. At the end of the day we are all flawed humans. The idea that we should judge the laws by looking at the people behind the laws instead of what the law actually says within the four corners of the text is wrong, wrong, wrong.

Clear enough? Because I could tell you how I really feel about this Hawaiian judge and his lack of judgement … naw, never mind, I’m going for a walk around my bit of lovely redwood forest.

Here, there are clearing skies and crisp air now that the front has passed through. The wind is coming off the north-west ocean, smelling to me of the cold northern waters teeming with green life, of adventures lived and adventures to come …

Best of life to all,

w.

[Update 01] From the news:

The judge issued his 43-page ruling less than two hours after hearing Hawaii’s request for a temporary restraining order to stop the ban from being put into practice.

Can you say collusion? The judge clearly got a head start, and must have known in advance what the Hawaiian appeal for a ban would say. Ah, well. The judge was a friend of Obama’s … coincidence? You be the judge …

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58 thoughts on “I Yam What I Yam

  1. I entered into this issue before, and while I think the rationale of the judges overturning these EO’s is absurd, I thought that legislative intent may have a significant history in legal disputes.

    The best examples I can think of are the myriad of gun control laws that have been shot down by courts trying to find a “legal” way to shoot down the Second Amendment.

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    • Thanks, Charles, always good to hear from you.

      There are lots of activist judges who like to wander far from the four corners of the text, and a rich history of such actions.

      I’m not saying it doesn’t exist. I’m saying it leads to a legal absurdity, that a law could be illegal if passed by one legislature but would be legal if passed by another legislature. That makes no sense at all, for the reason enumerated above.

      w.

      Liked by 1 person

      • Not only a legal absurdity, but probably the fatal flaw in our system that will bring it to an end. Or at least a battle as nasty as the one a century and a half ago.

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        • You mean like the Supreme court passing a judgment on a purely States level issue, such as how the state should select its senators and representatives? Not allowed to choose a method that mirrors the federal system? Like “one man, one vote,” which forever changed the fabric of the balance of political views by giving the control of all state law to the cities instead of dividing the power between all of the peoples’ points of view? Which, incidentally, also gives all the power for political parties to choose candidates to the cities, thus those that run the federal government, the states, and the political parties are only those that represent the cities views? The Cities, where corruption is always the easiest, and usually are run by the “city bosses,” gangs, or bought and paid for “civil servants?” Yes, the legal absurdity of Judicial “judgment” has already destroyed the nation and started it slide into oblivion.

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  2. Regardless of one’s opinion of the temporary travel ban, it is an authority that a President must have – so Trump will need to have this addressed in the courts once and for all.

    Even if Trump loses the next election and, God forbid, Hillary were to get elected, I fully believe that she should have the authority to do what Trump is trying to do. This is not a partisan issue.

    Suppose that Trump had some information about a credible domestic threat from a country such as Yemen. Per the position being taken by the judges and DA’s, Trump would have to seek permission of every DA and judge in the nation – and show them the classified information for which they have no clearance – in order to get their buy-off on implementing a travel ban. That’s insanity.

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  3. Of course, we all know now that the Judge was not just a friend of Obama’s, but that Obama arrived in Hawaii a couple of days prior. What is that guy on. I want some.

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  4. Here is the relevant portion of the law on which the President’s Executive Order is based:

    “8 U.S. Code § 1182 – Inadmissible aliens:

    “(f) Suspension of entry or imposition of restrictions by President

    “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

    Plain as day.

    /Mr Lynn

    Liked by 2 people

    • In America we called it ‘Civil Disobedience’. The non-violent lawbreakers knew they would be prosecuted, but it was a way of calling attention to an unjust law, and an effective one, especially when the public understood the lawbreakers were sacrificing their freedom for a just cause.

      /Mr Lynn

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  5. Looks like we need a wholesale replacement of those District Judges.that are obviously incompetent. However in the meantime, Trump could require that all unvetted Islamic “refugees” be sent to the states where the courts are giving him problems. I will also say that if any terrorist events occur stateside by those affected after these rulings, that those judges are not going to be very popular.
    http://dailyheadlines.net/2017/03/hawaii-judge-rules-muslim-refugees-have-a-constitutional-right-to-come-to-the-united-states/

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    • I had the very same thought upon hearing about this so-called judges decision. For starters how about 15,000 immigrants be relocated to Hawaii and 100 % of all who arrive while this is vetted in court. Hawaii needs and wants some diversity and their court shows their willing acceptance. Hey, the poor immigrants will be happy with the climate.

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      • There is no guarantee they will like the climate. It will be humid, not dry, so it might not even come close to their liking.

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        • Maybe the political climate will be to their liking with the judges and politicians being so protective and accommodating to their inclusion and diversity. Ohh, burkas and burkinis will be a first for Hawaii. Toss in lots of Mosques and daily prayers and cultural demands and an increased tourist presence from their families. Hey, Hawaii needs this to end their cultural isolation and beautiful girls dancing while moderately clothed in bright colors and flowers. Maybe even a previous president and native son to become governor to help move things along rapidly.

          It’s not like Hawaii doesn’t want it or deserve their piece of the action!

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        • While Hawaii has a population of ~1.5 million it only has a mix of .5% muslin and 2.4% African. The LGBT population is 5.1% (these figures from wikipedia). To begin to reach parity for some resemblance of diversity of say 5% we need to send about 60,000 Muslims to Hawaii immediately. North African nations as supported by the “judge” in Hawaii would be a good start as it would up the African population for a three for one impact. Diversity would then be on its way with equal numbers of Muslims to LGBT and Africans a little better represented. Having 5 babies rather than 3 will help in the long term. It would show Trump who’s the boss! Hell, maybe he would even agree to help.

          I’m sure that the “judge” and the lady congressional politician didn’t consider these minor omissions and would want to do the right thing. A new, diverse and inclusive Hawaii is on the horizon. You can be greeted with “Aloha Allah”! What’s not to like!

          Liked by 1 person

  6. For what its worth, I think this post is fairly simplistic. WE well intentioned legal analysis is partly wrong, even though his ultimate conclusion is mostly correct. (in my opinion) . WE, precisely per your bolded admonition, your bolded textual words focused on intent late in the opinion you excerpted. Not how intent works elsewhere. Congressional intent is not criminal intent.
    Congressional intent goes all the way back to Constitutional Founder intent. Not just today’s. Not just common law criminal law intent then. And your criminal intent analogy is largely inapt under those originalist constitutional intent circumstances.
    QThat is where the Hawaii judge failed. Not Trumps intent. Jeffersons, Franklins, and Madisons. To mention just a few constitutional signers. Read the Federalist Papers for what the founders intended. Is a big clue.
    For those more interested in these intricacies, please read former SCOTUS justice Antonin Scalia’s last tome: The Interpretation of Legal Texts, by Scalia and Garner. Warning: This is a heavy read even for trained constitutional lawyers. But VERY educational. Available as an Amazon ebook cheapest possible. Worth a gander for all here.

    Liked by 1 person

    • This is correct, but I didn’t think it worth defusing Willis’s main point. Yes Originalist interpretations of the Constitution depend on knowing what the intent and meaning of the Founders’ words were, and more often than not, knowing what the intent of Congress was in writing a law is essential to understanding its applicability in given circumstances (clarity not always a virtue in law-writing). But the moral character of the authors is indeed irrelevant. /Mr Lynn

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      • I cannot find the example and my memory may be failing me but wasn’t there a recent situation (possibly in Oz, not the US) where legislators argued that a new law’s contents could be discovered once the law was passed?

        If this is true, how can anyone judge the ‘intent’ of the legislators if they did not know what is in the bill when it was passed?

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        • That was then-Speaker Nancy Pelosi on the so-called Affordable Care Act (aka Obamacare). As it turned out what was in it didn’t matter much, anyhow, what with the constant waivers, exceptions, and plain violations of the voluminous and unreadable Act. /Mr Lynn

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      • IIRC Trump said he was going to do what he must to prevent the bad guys from getting in.
        He would protect our country and its borders.
        He’s starting out with the unstable countries we’re pretty sure don’t have any information on their citizens’ terrorist activities.
        I believe that if our new president determined he needed to prevent travel from more regions of muslim majority countries for US citizens’ protection he would try to do just that.
        Besides:
        Islam is a barbaric political system left over from the 7th century.
        How do we assimilate their beliefs with our freedom of expression? Our citizens’ rights?
        What does the Islamic political culture bring to the US, Europe and the world in general?

        Liked by 2 people

  7. Our host says: :A law says what it says. You read the law, you see what it says, and you interpret it based on the ordinary meaning of what it says. What’s not to like?”

    A timely example of the problem of interpreting the text and nothing but the text arises at a legal humor blog. http://loweringthebar.net/2017/03/the-oxford-comma-use-it.html

    The law <>

    Blogger analysts says:

    Because the drivers want overtime—or because they actually believe it’s the right answer, or maybe even both—they argued that because there’s no comma after “shipment,” the exempt activity is “packing for shipment or distribution”; that is, packing for either of those purposes. They don’t pack anything, they said, so the exemption doesn’t apply to them.

    Because their employer didn’t want to pay overtime—or because it actually believes it’s the right answer, or maybe even both—it argued that the phrase defines two exempt activities: “packing for shipment” and “distribution.” The drivers may not pack, but they definitely distribute, so the exemption does apply to them.

    Each party recognizes that, by its bare terms, Exemption F raises questions as to its scope, largely due to the fact that no comma precedes the words “or distribution.” But each side also contends that the exemption’s text has a latent clarity, at least after one applies various interpretive aids. Each side then goes on to argue that the overtime law’s evident purpose and legislative history confirms its preferred reading.

    Then the various other tools of judicial determination of a law’s meaning are discussed. Turns out there is a traditional hierarchy of tools.

    None of this is to say the judge in Hawaii is using any of his own tools correctly. But just to say that “textualism” — however much we might wish so — isn’t quite as cut and dried as we might like.

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    • Pouncer and ristvan, thanks for your comments. I see I have not been clear in my comments.

      There is one point where looking at intent could be relevant. This is deciding the meaning of a law when the ordinary meaning of the words is not clear. This is the example you gave about the Oxford comma. So I would refine my earlier statement by saying that it is valid to look at intent when there are two equally plausible interpretations of the ordinary meaning of the words of the law. Since we have no evidence within the four corners of the text regarding which interpretation is correct, we’re forced to look outside the four corners. So we look inter alia at the inferred intent of whoever wrote the law.

      However, that is not the case with the EO. It has a clear and obvious meaning using the ordinary meaning of words. As a result, looking at intent is totally inappropriate. The law either does or does not discriminate against Muslims, no matter what the people who wrote the law wanted to do. That’s how laws work.

      w.

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      • The law that we are familiar with that has suffered the most from this convoluting interpretation is the Clean Air Act. I cannot imagine the writers envisioning its use to consider CO2 as a pollutant to be controlled by its application. The EPA had to twist it beyond any reason to use it for the endangerment finding. But they supposedly did that by considering the “4 corners of the law”. In my opinion, because the reasoning used to distort the law has been put forth and adjudicated to a completely unreasonable conclusion the only real solution is the change the law and more accurately define “pollutant” or actually exempt CO2 from consideration under the law.

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        • ” I cannot imagine the writers envisioning its use to consider CO2 as a pollutant to be controlled by its application.” Ah, yes. That is precisely the intention of the writers of the Clean Air Act. Wake up and smell the sewage.

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      • WE, I agree fully with your clarification comment. The first EO had several clear flaws, such as reading as applying to green card holders. It was easily attackable. Perhaps that was Trumps intent poltically, dunno. It certainly got a conversation started. The second EO fixed all those flaws, and is clear so intent does not apply at all.
        Your update to the main post makes it clear the fix was in before the hearing. That by itself makes the Hawaii ruling appealable on grounds of judicial bias.
        My comment above was to clarify the nature of the intent analysis that would apply if things were not clear. The Scalia tome is a long fascinating set of different considerations, each with juxtaposed examples/counter examples from actual case law on constitutional and statutory intent.
        I don’t buy into strict originalism, because it pretends to ignore changed circumstances. In the Founders day, speech meant one of three things: meet in person, write a letter, publish in a newspaper or broadside. Free speech was limited by the common laws of libel (if verbal) and defamation (if written). Founder’s free speech intent in the era of the internet? No such thing. Only textualism can reason to possible answers. ‘What would the founders have thought about something on which they did not think?’
        Sort of fun where your musings often lead.
        Regards

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  8. Oops. Bad punctuation interpreted as botched HTML. The example law is

    “”The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.””

    with the questionable (is it missing?) comma to be located between “shipment” and “or” .

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    • The distribution of, or the canning, processing, preserving, freezing, drying, marketing, storing or packing for shipment: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods…
      That might fix it?

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  9. You, Willis, seem to be of one mind with President Thos. Jefferson about this, and probably all of the Framers of the U.S. Constitution (and me).

    “The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law.”

    – Thomas Jefferson, 1808

    When laws are carefully written, there’s no difference at all between an originalist and a textualist: The words forever mean what their authors intended them to mean.

    The only source of confusion might be language drift, a problem which Noah Webster and Dr. Johnson greatly reduced, but did not completely eliminate. In such cases, the words must be understood as the law’s authors would have understood them.

    When laws are sloppily drafted, there can be divergence between the results of originalist and textualist interpretation. Should the law be construed to mean what it actually says, or what it appears its authors intended for it to say? Both are honest approaches, and usually, in practice, there’s not much difference. For instance, in matters of ambiguous criminal law, where defendants are entitled to a presumption of innocence, most judicial conservatives would give the defendant the benefit of the doubt.

    The real contrast is with judicial activists. Those are the liberals who claim to divine meaning from emanations of penumbras, rather than from the actual words of the laws, to create excuses for legislating from the bench. In the Federalist Papers, Hamilton, Madison & Jay recommended impeachment as the remedy for that problem, and thought that the threat of impeachment would prevent it.

    “Until the people have, by some solemn and authoritative act, annulled or changed the established form [of the Constitution], it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”

    – Federalist #78

    “The rules of legal interpretation are rules of COMMON SENSE, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived” [i.e., conformity to the intention of the people who enacted the law]

    – Federalist #83

    Here’s Jefferson on another, more subtle point about the correct interpretation of laws. He’s talking about one particular example: the “general welfare” clause in Article 1, Section 8 of the U.S. Constitution, but he mentions that it is the application of a more general principle:

    “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.
    It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.
    It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect…”

    – Thomas Jefferson [3 WRITINGS OF THOMAS JEFFERSON 147149 / Library Edition, 1904]

    That principle of construction is, itself, a specific example of the more general principle:

    “Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure.”

    – Thomas Jefferson

    Or, most concisely:

    “Please do not emanate into the penumbra.”

    – sign on the desk of Justice Clarence Thomas

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  10. We need a legal system. That said, the current U.S. legal system is a farce. “A good lawyer can argue either side of a case”. In other words, a better lawyer wins; whether the plaintiff or the defendant is right or wrong does not matter. That lays a foundation for a million-dollar award for a Stella who bought a hot coffee at McDonald’s and poured it on her legs. That, in turn, is based on a “deep pocket” doctrine, another perversion of justice.

    I like to watch Judge Judy. She is not a Supreme Court Justice, but I like to think that she interprets the law mostly in a usual way. She holds up a paper, saying “This is your contract. You are bound by everything within the four corners of your contract.” In another case, even though the defendant keeps waving a contract, she does not even allow her to show it. I don’t dare to call it arbitrary, but surely she shows that a judge has a wide leeway in determining how the evidence can be presented.

    To sum it up, I can’t guess the intentions of Founding Fathers (and the world has evolved since), but today’s purpose of the legal system is to keep as many lawyers busy as possible, anything else be damned. A swamp.

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  11. It will be really interesting to see what happens in the appeals. It’s pretty clear the Trump administration realized the original order had problems and was not the strongest one they could put forward. They probably also realized that until Sessions was confirmed and had time to assemble his own team, the holdover Obama appointees would scuttle the case from the inside anyway. Hopefully that situation has been remedied and the administration will give these rogue judges a little trip to the woodshed for some “enlightenment”:

    When I feel the heat, I see the light
    ― Everett Dirksen

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  12. “Ah, well. The judge was a friend of Obama’s … coincidence?”

    Now we are into the intent of the judge. In an unbiased system, any and all judges would render the same opinion about the point of law. If they don’t either the judges or the law are flawed.

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  13. Intent. That is not supposed to be part of the equation. Your intentions are irrelevant, you ran over the neighbor child and killed them, action is all that is supposed to matter.

    Loosely interpreting laws is a favorite tactic of sleazy lawyers and one of the primary reasons people hate all lawyers. And sleazy lawyers become sleazy judges, as we are once again seeing.

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  14. Reminds me of a similar mind set that occurs in my avocation of referring youth soccer. Our job is to enforce the Laws of the Game (yes they are actually called that). Where some refs, and many TV commentators, get things wrong is when they try to make a ruling based on what they believe the player was thinking. How can anyone know what another person was thinking without them telling you?? The Law defines a foul as either simply “careless”, “reckless without regard for the safety of the opponent”, or “excessive where there is direct danger to the opponent”.

    Many times a commentator, and even some refs will say something stupid like, “Yes that was a reckless challenge, but the ref should not issue a yellow card as the player didn’t mean to do it.” No where does the law say anything about intent, just results. It doesn’t assume a ref can be a mind reader.

    I’m with you on this Willis. But then I guess we aren’t “nuanced” people.

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  15. As a Popeye textualist I must protest.

    “I yam what I yam and that’s all what I yam”

    That was Popye in his youthful Wittgensteinian period, before he moved to the west coast and set up as a holistic nutritionist:

    ‘I’m strong to the finish cos I eat my spinach’

    You really should get these things right, Mr Eschenbach.

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  16. ….He’s claiming that this identical Executive Order would be legal if it were issued by a President whose motives were pure….

    I can’t see an issue here. Variable legal meanings have now been around for at least 30 years. For instance, the Hate Crime concept works depending on who’s doing the hating – white people break it all the time but blacks can’t.

    And most environmental legislation using the precautionary principle stops big companies doing something, unless Greenpeace like it, in which case the same action suddenly becomes legal.

    It’s pretty standard on the left wing. The INTENT of their legislation is to oppress the right wing, so it doesn’t apply when the left want to do the same thing…

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    • True, Dodgy, but that is different. You are talking about selective enforcement of a law. That has happened since forever. Cops on the beat do it. DAs do it. No surprise.

      The more important and much rarer distortion of the law is declaring that a law is Constitutional or un-Constitutional depending solely on who wrote the law. That’s a different and much more dangerous thing than selective enforcement, because it threatens the very Separation of Powers that is at the base of our democracy.

      w.

      Liked by 1 person

  17. Willis: You may be interested in an anecdote from my first day in Criminal Law class a long (make that a LONG) time ago. 1957 to be exact. At Georgetown Law Center in Washington, DC.

    The professor asked the class to evaluate a law that prohibited “shooting a gun down a street if people were present” as applied to a man charged with discharging his weapon down a street where a single person was present.

    Not applicable, said he, because one person is not plural like “people”. Literal reading of the text.

    We have come a long way…

    JimB

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    • Putting on the mantle of the irrepressible Racehorse Haynes, I’d have argued that for the the shooter to shoot DOWN the street means that he too must have been in the street, and that makes two people …

      Racehorse Haynes once said famously said about affirmative defenses:

      Say you sue me because you say my dog bit you. Well, now this is my defense:

      My dog doesn’t bite.
      And second, in the alternative, my dog was tied up that night.
      And third, I don’t believe you really got bit.
      And fourth, I don’t have a dog.

      Best to all,

      w.

      Like

  18. I’d like that plain reading of laws would work but as Scott Adams is pointing out we will always have our filters and confirmation bias.

    the right of the people to keep and bear Arms, shall not be infringed.

    That looks pretty straight forward in reading. From other readings I’ve come to believe that the authors, having recently won a revolution with the citizens and governments more or less similarly armed, intended the law to keep parity in case an oppressive government had to be overthrown again. By that interpretation if I want a M1A2 in my garage, I should be able to get one. Of course it’s been argued that the 2nd only applies to the arms available at the time it was written. There are infinite interpretations between those endpoints. Here come da judge.

    This example is a little messy (as with most constitutional issues) because time and technology have overrun simple reading. To Willis’ point, if the law isn’t keeping up it should be updated.

    Like

  19. I agree with textualism in the sense that there needs to be a common standard definition of what the law is that doesn’t change with time or whim. But the problem is that the meaning of words can morph over time (e.g., gay, hacking) from what they originally meant or the the context in which they are used. That’s why I am an originalist. I feel that the text should be interpreted in the terms that were used at the time the law was written and if it doesn’t fit the present circumstances then fix the law, not reinterpret the words out of the original context.

    We had a short discussion here where I felt the SC had made up their own definition of “speech” that was never intended by the writers of the Constitution. You seemed to agree with them I think:

    Finally, I disagree with your premise. The Supreme Court ruled, for example, that paintings and logos and such are symbolic speech. Despite the fact that the term “symbolic speech” doesn’t appear in the Constitution, do you disagree that paintings are symbolic speech?

    Because if you do disagree with the Supremes about symbolic speech, that means that you think that the government should have the right to regulate and control the images you paint … and you don’t strike me as a man who wants that to happen …

    The dictionary definition is:
    the expression of or the ability to express thoughts and feelings by articulate sounds.

    No where in the text of the Constitution is there the term symbolic and the standard definition precludes things that are not actual speech. Now I haven’t read the arguments that were made, so I may be wrong but I can’t see how “speech” can be interpreted to mean an act or picture using a strict textual definition. Do you see the Constitution as a different entity from a law? Maybe that’s where I’m missing the point.

    Now in regards to your last paragraph above, I don’t think the government should control (most) images someone creates but frankly I don’t think images are covered under the first amendment. Would you allow child pornography (assuming the images were created without abusing the child)? Now in my view, that should be made illegal, but I also think anyone has a first amendment right to say that it should be legal as political speech. Same goes with flag burning. If society deems it offensive than it should be able to ban the burning of a flag, but government should not be allowed to prevent you from speaking or writing in favor of flag burning.

    Bottom line is that if we as a society want to allow “symbolic speech” then we should to change the Constitution to cover that rather than have 5 Supremes make that decision for us.

    Liked by 1 person

    • Eh, quoting didn’t work. the paragraphs starting with “Finally, I disagree” down to “here…” is a quote by you from our conversation.

      Like

    • > No where in the text of the Constitution is there the term symbolic and the standard definition precludes things that are not actual speech. Now I haven’t read the arguments that were made, so I may be wrong but I can’t see how “speech” can be interpreted to mean an act or picture using a strict textual definition. Do you see the Constitution as a different entity from a law? Maybe that’s where I’m missing the point.

      well, by a literal reading, speech and print are different things, and they clearly meant to cover both.

      I’m pretty sure that political cartoons were around at the time, and they would have been covered.

      It was also common to burn someone in effigy, literally burning an image of the person. That was something they obviously intended to cover.

      So I don’t see how pictures of any other type would not be covered by the same intent.

      David Lang

      Like

      • Yes, political cartoons would be covered but because they fit under ‘press’ which didn’t mean just newspaper people but referred to printing (broadsides etc).

        Also, even if burning effigies were common does not mean that it was protected. Lots of things happen and are ignored by authorities that still are not protected constitutionally.

        Like

    • Bear, thanks for your comment. You say inter much good alia:

      Bear March 17, 2017 at 10:16 am

      I agree with textualism in the sense that there needs to be a common standard definition of what the law is that doesn’t change with time or whim. But the problem is that the meaning of words can morph over time (e.g., gay, hacking) from what they originally meant or the the context in which they are used. That’s why I am an originalist. I feel that the text should be interpreted in the terms that were used at the time the law was written and if it doesn’t fit the present circumstances then fix the law, not reinterpret the words out of the original context.

      I agree with that. We have to look at what the words meant at the time. Like you (and Gorsuch) I’m both a textualist and an originalist.

      However, in the current case I don’t see how it applies. Where did the Courts mention that? Have any of the meanings changed?

      Regarding your discussion of “symbolic speech”, I would argue that symbolic speech was included in the meaning of the word “speech” at the time.

      For example, surely you can’t be arguing that the Constitution allowed the authorities to go to farms in 1787 and tell people to take down their flags because the authorities didn’t like symbols on the flag?

      And surely you can’t be arguing that the Constitution allowed to framers to go to shops in 1781 and tell them they had to change their logos because the authorities didn’t like their shapes?

      How about a mans family crest or family symbols? Do you truly think the Constitution allowed the framers to tell some family in 1794 that their ancient family symbol wasn’t up to snuff, and so the family COULD NOT DISPLAY IT IN PUBLIC?

      What about the 1776 equivalent of the donkey and the elephant, the symbols of the political parties. Are you saying that the authorities of the day could outlaw one and not the other???

      So I would argue strongly that flags, logos, signs, family crests, and symbols of all kinds were indeed included in the meaning of “speech” at the time. I say this for both the theoretical reasons above, as well as because there are no records I know of where the authorities in the early days of the Republic ruled any flags, logos, signals, national symbols, family crests, or symbols to be forbidden, or prevented their public display..

      And as contentious as Americans are, if they’d tried it we would have heard about it.

      However, I am not blinded by being an originalist. I would argue, for example, that when the framers talk about freedom of speech, it would include say speech over the telephone. Yes, there was no phone back then, and yes, phones are not mentioned in the Constitution … but I don’t think the invention of the telephone either negates the First Amendment, nor does it require (as you seem to suggest) a Constitutional Amendment.

      So when I say I am an originalist, I allow in that for the expansion of the meaning of “speech” to include speech on the telephone, or the telegraph, or recorded speech, or you and I communicating over the intarwebs today. Should we have to amend the Constitution since neither the telephone, the telegraph, the web, and the phonograph weren’t mentioned in the Constitution?

      Are there problems with this? Assuredly. But the options are, EITHER we amend the Constitution (a very difficult process) every time there is a technological advance, OR we agree that a given new situation is similar enough that it is obviously covered by the inherent meaning of the words.

      The problem, of course, is distinguishing between the two … and there, honorable men may differ. For example, call me crazy but I don’t think that US citizens have a Constitutional right to own nuclear weapons. Nor do I think we need a Constitutional Amendment to specify that.

      Now, would an amendment be of benefit? Possibly, but I don’t know. It would take a huge effort to pass any such amendment. Then there would be eternal wrangling about just what it would say. Most folks including me would say that hunting rifles are OK but atom bombs are not … but where in there to draw the line would be hugely contentious.

      Not only that, but we’re now in an age when you can 3-D print a pistol in your living room … curious times ahead, my friend.

      As a result, a Constitutional Amendment would be hugely contentious, with some arguing that citizens should be able to own bomb-carrying drones, while others are saying only muskets because that’s all they had back in 1776 … not sure if it would be worth the fight.

      Thanks for all your interesting thoughts, there are no simple answers,

      w.

      Like

    • Thanks, asybot. Actually I hope like heck that he will order that the US bring in another 50,000 refugees. It will make the nature of the judicial over-reach totally clear.

      Plus which … Popeye doesn’t blow gaskets, he blows steam out his ears.

      w.

      Liked by 1 person

  20. 60,000 to Hawaii for the first wave. Every 30 days that many more. Only Merkel can call a reduction. Bring um on. The EU knows best!

    Like

  21. Pingback: The POTUS and the WOTUS | Skating Under The Ice

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