Posts tagged ‘law’


Denotation and the SCOTUS

So Fuckface von Clownstick has nominated a person for the Supreme Court, to replace ol’ Tony Scalia.

Much of the discussion of this in the world will be about how utterly hypocritical it is of the Republicans to suggest that there is an obligation for the Democrats to not obstruct the confirmation process, given that just the other day they declared it a positive civic duty to obstruct the conformation of Merrick Garland, and that is quite a valid discussion.  But I’m not up to doing any of that here.

Looking into this Gorsuch person a bit, though, I find that (as well as not being Merrick Garland) he is an “originalist” just like ol’ Tony, and perhaps even moreso (if that’s possible). This inspires me to reach into the archives and reprint here, lightly edited for venue, my ancient piece on why “originalist” is a bad name.

By way of introduction, it’s a bad name because everyone believes that it’s the Constitution’s original meaning that’s important; the division is between those who think the original denotation is important, and those who think it’s the original connotation.  (Where “connotation” is used in its technical Philosophy of Language sense, not its informal “fuzzy subjective meaning” sense.)

The problem with the denotationist position can I think be highlighted by a very small thought experiment: the denotationist is obliged to hold that if we were to hold a Constitutional Convention today, and replace the entire text of the document with an exact copy of itself, the resulting document would be very different than the current one, and a very different set of things would be allowed and prohibited and so on.

And that seems just silly. (Menard’s example notwithstanding.)

But anyway, here is the original post, in the context of Scalia and 2005 rather than Gorsuch and 2017, but Truth is Timeless.


One of the cool things that Audible does is make certain ‘public interest’ type audio programs available for free. I don’t know if they do this out the goodness of their heart or their ad budget, or if someone pays them to do it, but it’s cool anyway.

One of the free things they have is a talk that Supreme Court Justice Antonin Scalia gave on the subject of Constitutional Interpretation, at the Woodrow Wilson International Center for Scholars last March. (Due to Audible’s bizarre site design I can’t figure out how to give you a pointer to it that will work, but if you search on “Scalia” you’ll probably find it. Although it’s free, I dunno if you can get it if you don’t have an Audible account.)

I’m a bit more than halfway through it, and it’s interesting. I’ve previously expressed the opinion that J. Scalia is a fascist theocratic loon, and I’ve teased him for his defense of state laws against masturbation in his Lawrence dissent; what I’ve heard so far doesn’t make me any more comfortable having him on the high court, but it does give me some additional insight into his character and legal thinking.

Scalia doesn’t like to be called a “strict constructionist”; he prefers “originalist”. His idea is that the words of the Constitution meant something when they were adopted, and that it’s that meaning that we must follow today. And when he says “meaning” he isn’t thinking of the general meaning or connotation of the words; he’s thinking of the very specific denotation of the words: the exact specifics of what they were thought to mean at the time.

So since when the 14th Amendment was adopted in 1868 no one thought that “equal protection” included the right of women to vote, it required a further amendment to give them that right. Scalia says that nowadays we would have done it on 14th amendment grounds instead, and he clearly thinks that that’s a bad thing.

[2017 Note: In fact even back in 1868, lots of people thought that “equal protection” did in fact include the right of women to vote; something that rather heavily undermines Scalia’s point. The fact that when talking about this stuff he apparently never mentioned Minor v. Happersett or the various controversies and demonstrations around it, was one more thing that lowered my opinion of his intellectual integrity.]

Since “originalist” doesn’t strike me as a neutral term (when was the last time you saw “unoriginal” used as a compliment?), let me refer to Scalia’s position as “denotationist”; the words of the Constitution (or any other law) must be interpreted as having the same denotation, as picking out the same parts of the world, as they had when adopted.

(At the extreme denotationist position, if the Constitution had said that the number of Justices on the Supreme Court should be equal to the number of planets around the Sun, then the proper number of Justices would be seven, since that’s what people thought the words denoted at the time. I’m not suggesting that Scalia would actually carry the idea this far, although it wouldn’t surprise me if he did.)

So what’s the alternative to denotationalism? In this lecture Scalia claims that the only alternative is to consider the Constitution not a legal document at all, but just sort of an “exhortation”. He claims that he’s asked all sorts of people at law schools what principle they propose in place of his, and none have had an answer.

This strikes me as baffling, since the answer is so obvious. Rather than interpreting the words of the Constitution according to what they meant when adopted, we should interpret them according to what they mean now. If we’ve discovered since 1789 that there are really nine planets, or since 1868 that equal protection does mean the ability to vote regardless of gender, then that’s what the Constitution should be read as saying.

(Jim points out a possible circularity here, so let me say explicitly that the view I’m outlining here isn’t the tautological “the Constitution means today whatever it means today”; I mean something more like “the words in the Constitution mean today whatever the same words mean outside the Constitution today”. Modulo politically irrelevant typographical shifts and so on.)

I’d like to call this alternate view “connotational”, in contrast to Scalia’s denotationalism. And it seems to me highly unlikely that no one has ever suggested it to Scalia, or that he wouldn’t have thought of it himself for that matter. Scalia seems to have an enormous blind spot where differing opinions are concerned; not only does he disagree with non-denotational views of Constitutional interpretation, he doesn’t even see those views. At one point in the speech he says that he would have decided a certain case in a certain way based on the original meaning (“meaning”) of some words in the Constitution, whereas the court actually decided the other way, “based on — well, I don’t know what!”

He’s obviously a smart guy, but apparently there’s a filter between the part of his mind that is sharp enough to understand arguments on both sides of an issue and the part that consciously notices those arguments. (Jim points out that Scalia wouldn’t be the only one with this problem.)

Another possibility is that Scalia is simply a propagandist, and that pretending that the other side has no argument at all is just a rhetorical device that he likes to use. That’d be a pity.

So anyway. The denotationist view says that when the Constitution uses phrases like “due process” or “equal protection” or “freedom of speech”, we should consider those phrases to be convenient shorthands for whatever set of things people thought they meant when the words were adopted. If it wouldn’t make the Constitution implausibly long, we could replace each one with a list of all the things that people at that time thought the words referred to.

The connotationist view, on the other hand, says that “due process” means the processes that are due, the proceedings that are appropriate, and if our opinion about what is appropriate has changed since 1798, it’s our current opinions that count. Similarly, “equal protection” means protection that is equal, and if people in 1868 didn’t notice that disenfranchising half the country didn’t constitute equal protection, so much the worse for them; our current government should be guided by our current understanding.

(Now in practical terms it’s nice that we have the 19th amendment there making it explicit; but I do think that a 14th amendment case for female suffrage should in principle have had a very good chance of success.)

So Scalia’s basic theory isn’t particularly inconsistent or anything; I just strongly disagree with it. His inability to acknowledge the very existence of alternative theories is a flaw, and not one that makes me fond of him.

What else? Scalia’s theory leads him to say some odd (or at least odd to me) things about the Constitution’s role in protecting minorities. At one point he says that protecting minorities from the whim of the majority is one of the most important things that the Constitution does. But because he’s a denotationist he sees it as protecting only those particular minorities that the Framers would have wanted to protect (or that the adopters of later amendments would have). So Catholics, for instance, are protected (hem, hem), but not people who want to make love to people of the same gender.

(Sidenote: Scalia always refers to male-male sex as “homosexual sodomy”; a little subliminal reminder that the Lord has destroyed whole cities over the issue; ref “theocratic” supra.)

The equal protection clause can’t allow people of the same gender to marry, because when the clause was adopted people didn’t think it meant that. A connotationist can say that we’ve decided since then that equal protection really does mean that; but Scalia doesn’t even consider that as a possibility. It’s not simply wrong, it’s just not on his radar at all.

If we want to provide equal protection or due process or freedom of speech outside the original denotation of those terms, he says, what we have to do is persuade our fellow citizens to enact the appropriate legislation or Constitutional amendments. Which is to say, if we want to protect a minority that wasn’t popular back in 1789, we have to persuade the majority to play nice. Which of course seems completely wrong to me, given the whole “Constitution protecting the rights of minorities” thing.

The Framers were large-minded folks; I think that when they said “due process” or “freedom of speech”, they didn’t just mean the things that those words meant in the 18th century, but that they meant whatever those words might turn out to mean as the species matured.

Hm, I’ll bet we might even be able to find some writing of the Framers that say that! I wonder what Scalia would do then…


And that’s that reprint from 2005; May 16th, 2005 specifically. There were at least a couple more weblog entries on this general subject, based on reader comments and other events of the day and so on, but that’s enough for now for here.

Maybe I should find some of Gorsuch’s writing, and see if he’s usefully interpreted as a denotationist (with an inability to even conceive of connotationism) like Scalia, or if he’s different in some interesting way.

But probably I’ll just get caught up in von Clownstick’s steady assault on the very idea of democracy, instead…


That secret and powerful message

It may have been as much as thirteen years since I mentioned my unaccountable interest in Wacko Tax Protesters, but I am happy to see that The Tax Protester FAQ is still there and may even have been updated since 2002.

I was reminded of the Whole Area by a Wonkette piece, How Are The Feminists Keeping Men From Getting Laid Today? (Oh, Wonkette, you are so funny with the funny headlines and all), which refers in passing to one “Peter-Andrew: Nolan (c)”, whose distinctive use of punctuation reminded me of ol’ David-Wynn: Miller, author of such lyrical prose as:


Now normally we would not publicly point and/or laugh at such things, because schizophrenia is not a fun condition to have in general, but it seems at least plausible that D-W:M is actually quite sane, since although his new kind of speech does have the power to bring about world peace, since


the main point, or at least the thing he is by far most famous for, is the claim that if you use this ummmm language you don’t have to pay your taxes, or really obey any laws at all that you’d rather not, because after all


and so on.

(Oh my just stumbled across his translation of the Lord’s Prayer; should I reconsider my thoughts on his mental condition?)

Anyway, it turns out that this is no longer, or perhaps never was, just a USian thing, but has also infested Canada and other FICTION-STATEs.

Here is an amusing weblog entry on the subject from our neighbors to the North: How Not To Manage a Bankruptcy or Income Tax Case, which led me I think to the text of Meads v. Meads, 2012 ABQB 571 (CanLII) which is a very nice overview of the whole Wacko Tax Protester situation by an actual judge writing actual legal reasons and stuff.

I have not finished reading through that yet.

(One of the scammier scams is the claim that if you get a bill or anything else really, you can just write “Accepted for Value” on it, and sign it, and send it back, and you’re all done. This is clearly stupid, but for some reason web sites like this are out there attempting to get the extremely gullible to pay money to find out exactly how to do it. I wonder how many bills they get back with “Accepted for Value” written across them, and how they feel about that.)

Now on the other hand I can’t be too tough on people who actually think that there are secret legal facts that the legal establishment is conspiring to keep from the common people, because it happens to be the case that there are secret legal facts that the legal establishment is conspiring to keep from the common people.

One of the things what was noted just in passing in something linked from something above was a list of various other wacko pretend-legal groups, and one of them was “the Fully Informed Jury movement” or other words to that effect.

And that drew me up a bit short, because unlike the wackos trying to convince people that if you attach signed postage stamps to your clothing you are effectively royalty (really!), the fully-informed jury folks are trying to convince people of something that is in fact true.

To quote from the article that was linked from whatever it was I found this mentioned in, the Journal of Criminal Law and Criminology, Volume 88, Issue 1, Article 8 (Fall 1997), Populism, Free Speech, and the Rule of Law: The Fully Informed Jury Movement and its Implications, by one Erick J. Haynie:

It has long been recognized that juries have the power to render verdicts inconsistent with the criminal law. Since jury acquittals are never subject to appellate review, a “not guilty” verdict will always be final regardless of the jury’s reasoning or its interpretation of the facts.

Which is to say, when you are on a petit jury and the judge instructs you that you are allowed to determine the facts of the case, but must strictly obey his pronouncements on the law, he is well sort of maybe lying just a bit, because in fact you can acquit for whatever darn reason you want. But the lying is in a good cause!

The great distinction in American jury nullification doctrine, however, is that while juries enjoy an unrestrained power to nullify the law, courts almost universally forbid this power to be explained to juries. The prevailing view among jurisdictions is that affirmative instruction on the ability to nullify would lead to lawlessness in the jury decision-making process.

That’s Haynie again. Isn’t that nice? Can’t trust juries to act reasonably if they knew the truth, so we’ll just conceal it from them. Otherwise it’s the End of Everything!

For a jury that is taught the legal reality that, no matter the facts of the case, an acquittal verdict is unreviewable and a guilty verdict will be given much deference on appeal, will also understand that it has nearly absolute power to determine questions of life, liberty, and property however it pleases. At that point, law is no more.

Welllll… This doesn’t seem all that blindingly obvious to me. (Especially since they can only acquit unreviewably, not convict.) Surely there is a position between “lie to people and keep this fact secret” and “tell them they can just do whatever the heck they want”. More on that below.

Our Haynie considers; what are we to do about this? Action is clearly required, now that people can find stuff out on the internet! And there’s even this Fully Informed Jury Association that is trying to tell people this true thing in an organized way omg!

(Their website does sound a little close-to-the-edge here and there; but imagine the feeling of finding yourself in the middle of a conspiracy-theory scenario that turns out to be true! Brrrr.)

Anyway, Haynie again, clutching his pearls:

Silencing attorneys and refusing nullification instructions, however, is no longer an adequate solution to the nullification problem. With the rise of FIJA, judges are no longer the sole gate keepers of that secret and powerful message. Consequently, as the FIJA movement continues to grow it will become necessary for the jurisdictions to develop new approaches to the nullification problem that are more mindful of juror awareness of jury nullification.

Yes, new approaches, that’s what we need!

Fortunately and amusingly, of the various possible new approaches Haynie considers, all of them, except for making it harder for FIJA types to actually throw information at jury members on courthouse grounds, turn out to be unworkable and/or clearly unconstitutional.

(And at this point I begin to suspect that Haynie is a genius of gentle satire, and he’s actually pointing out that the project of keeping the “secret and powerful message” under wraps is actually doomed.)

His conclusion:

And so time will march on until either FIJA withers into nothingness or the rule of law comes to have “about as much force as the Cheshire Cat’s grin.” True lovers of liberty will fear the latter over the former. Anarchy is no better friend of freedom than an overreaching government.

Quite the doomsday scenario! The assumption here is that if people find out from the evil internet that they are allowed to vote Not Guilty just because they think the law is unjust, say, they will start capriciously acquitting people randomly right and left, and it’s Game Over for law and order.

And if you have that low an opinion of potential jurors, you must be pretty unhappy that we have juries at all! Let alone Grand Juries! Why, those people could do anything!

I think in actual practice there are all sorts of jury instructions that could acknowledge the nullification power without messing anything up. Top of the head:

I’ve just explained to you that you are here to determine the facts of the case, and have a duty to follow my instructions as to the law. There is one exception to this: if the facts of the case and the law are such that the accused did violate the law beyond a reasonable doubt, but that in this instance a guilty verdict would be gravely unjust, so that you in good conscience simply cannot vote to convict, you have a duty to vote to acquit. Be aware that this is an extremely rare situation; District Attorneys work very hard not to bring you such cases, and judges work very hard to make sure that when one slips through, we catch it before it gets to the jury. But just for completeness, I mention this here.

All right, that exception aside, to return to what I said a moment ago…

And yeah I’m sure that that has big holes in it since I Am Not A Lawyer and I only thought about it for like ten minutes, but something like it seems plausible to me.

Better than lying to people and just hoping that they don’t find out the truth and bring about The End of Everything, anyway…

But you still have to pay your taxes!


Greece v Galloway: well that’s annoying!

subtle coercive pressuresYou can tell I’ve been busy because I failed to notice this last month:

Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court. — Greece v Galloway

Basically the Supremes were given the chance to say that sectarian prayer (“we acknowledge the saving sacrifice of Jesus Christ on the cross”), or even prayer in general (“blah blah blah God blah blah”), is out of place in government contexts since some of the salient citizens could obviously feel excluded; and they did something close to the opposite, on the amusing and infuriating assumption that this stuff “unites” us in our “common effort”.

There is good coverage of this on Friendly Atheist and very good analysis on ScotusBlog.

Justice Kagan gets it just right in this bit of dissent:

Contrary to the majority’s apparent view, such sectarian prayers are not “part of our expressive idiom” or “part of our heritage and tradition,” assuming the word “our” refers to all Americans.

but also disappointingly does exactly the same thing herself in writing

None of this means that Greece’s town hall must be religion- or prayer-free. “[W]e are a religious people,” Marsh observed.

Not assuming that the word “we” refers to all Americans, eh, Justice Kagan? Hem hem!

The conservative Justices are saying, as conservative Justices tend to, “people like us have no problem with this, and people who aren’t like us don’t really matter much.”

And that’s always bad.

But it’s sad that, as ScotusBlog notes, even the dissenters seem to assume that government prayer is just fine, and the only thing that might make anyone feel unacceptably excluded is if it’s the wrong kind of prayer.



What a lot of things

So a ridiculous number of things have been happening! And I have been too busy (digging big soothing pointless caverns in Minecraft, for instance) to research them and write down Wise Things. I will therefore just Briefly Note them.

There is no more right to remain silent unless you first say some legalistic magic words, thanks to the horrifying decision in Salinas v. Texas, which expands on the prior horrifying decision in Berghuis v. Thompkins. (Source)

The Voting Rights Act has been gutted of one of its more vital pieces (the piece that says that places with a history of vote suppression have to get changes to their voting systems pre-cleared by the DoJ) in Shelby County v. Holder, on the theory that even though that part of the Act has been used many times recently, and voter suppression has seen a big upswing in popularity recently, we don’t need it anymore. Or as this guy puts it:

…it is the opinion of the Court’s majority that the enforcement provisions of the Voting Rights Act worked so well that to continue enforcement under the existing scheme is unconstitutional.

In the ideal world this would not be a big deal, as Congress could just update the formula to determine which jurisdictions have to get the pre-clearance. But given that Congress is currently incapable of doing anything significant, that will probably not happen, and we will be left in this situation (same source):

While preserving the purpose and the intent of the momentous civil rights law—as set forth in Section 2 of the Voting Rights Act (“VRA”) which proclaims that no American can be denied the right to vote based on their race or gender­—the Court struck down the sole method of enforcing the intent of the law.

As well as finding that the federal government can’t meddle so directly with certain state and local voting systems in order to prevent discrimination, SCOTUS also found that the federal government can’t ignore certain state laws in order to further discrimination. Which is to say, DOMA is dead (finally!).

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

That’s Kennedy, for the majority, in United States v. Windsor.

I really need to read these decisions, see who was on which side, why DOMA went down to the 5th rather than the 14th, etc. Attentive readers will note that I myself would tend to support Federal power in the Voting Rights Act, while being against it in DOMA, because for me the important question is not “does this give more or less power to Federal or State governments?”, but rather “does this tend to protect the less powerful from the more powerful?”.

That is probably the thing that makes me a Lefty. :)

SCOTUS also brought back same-sex marriage in California, but on a relatively narrow technicality, so while that’s yay it’s not quite as interesting. At least that’s my impression so far (the actual technical finding is that just because you are the proposer of a ballot initiative, if that initiative is overturned by the courts and the government decides not to appeal, you don’t have standing to appeal it yourself just because of having proposed it in the first place).

NPR has annotated versions of both same-sex-marriage decisions, for your reading and analysis pleasure.

(And remind everyone to say “same-sex marriage”, not “gay marriage”! Bisexuals get to marry people of the same sex, too. Heck, even asexuals and straight people can if they want to! It’s all about Teh Freedoms!)

In non-SCOTUS news, Facebook had a bit of an embarrassment when first they accidentally leaked tons of data about millions of people, and then it turned out that lots of it was data that the people hadn’t even given them. Ooops! It was data harvested from the contact lists and address books and cellphones of “friends” (and “friends” of “friends”, and…) and squirreled away in FB’s vast subterranean vaults.

So basically, if you’ve ever given anyone any information about yourself, chances are that Facebook has it now.

Which you were probably already assuming, but this rather drives the point home. Along with the fact that whatever data they have, they may accidentally release to anyone you can think of in the future.

The xkcd comic “Time” is still going. There are various clever widgets around the Web to let you explore it, view it in time scales shorter than weeks, etc. I like this one.

Relatedly, here is a game in which you can take only one step per day. It is slow! I have moved a few steps to the right so far!

And also perhaps relatedly, I am rather plateaued on Lumosity (up in the “you are extremely awesome” range, natch, but still). I hope they add some more games or something soon.

Second Life, on the other hand, is still going strong, and I am still spending many hours a week there, building buildings, writing scripts, going to art shows, sailing sailboats, and so on. In fact it is having its Tenth Birthday right around now (see Community Celebration page), frequent rumors of its death to the contrary notwithstanding.

And that is all that springs immediately to mind! Now I will try to find time to read at least the most significant of the decisions above, and maybe come back eventually and write another post heaping scorn upon Scalia or something. :)