Strict Construction

Welcome back to the Scuttlebutt.

Mostly, today is going to be about the Supreme Court. That’s the doors to it, with yours surly in front of them.  Of course, being me, I won’t be able to avoid having some other sidebars, but mainly, we’re going to talk law today.

If you ever find yourself wanting to know about the law, one of the best sources I have seen is the Cornell Law School. Their “Legal Information Institute” is a fantastic primer on constitutional law, legal terms, and federal law in general.  (NOTE, they don’t do much for state and local laws, nor do they do much for Tort law, which isn’t so much a moving target, but an entire SWARM of moving targets, that are all armed and prepared to shoot back. Tort law or lawsuit law, is whatever a really good lawyer can convince a jury that it is.)

I mention that, because I’m going to quote them: 
“Strict construction is a form of judicial interpretation of a statute. The fundamental principle behind this construction is that the text of a provision in a statute should be applied as it is written (see also: statutory construction). Such a form of construction is the opposite of liberal construction, where the doctrine of reasonability and fairness is applied while interpreting to satisfy the overlying objective and intent of the statute.”

As they allude to, there has been, for about half of our nation’s existence, an argument between those that say: “The law says what it says. It stands or falls on the basis of the words as written.” And those that say: “We need to interpret the law based on what the legislators meant to say, and based on modern societal concerns/sensitivities.”

For the first thirty or so years, this argument didn’t exist, because the guys that wrote the original law (hint, that’s the constitution) were still around to Gibs slap anyone who would have taken the second position.  Also, in fairness, the societal concerns hadn’t changed yet.  The funny thing is that this didn’t preclude there being an argument over how to interpret the law even then… The argument then was Adams and his beliefs on government, V Jefferson, and his.

This balancing act between two different philosophies may be the strongest thing about our nation, and the thing that may save us and preserve this “peculiar experiment.”

The thing is that when one side or the other gets too powerful for too long, there’s always a pendulum swing, and it is always painful for the folks that suddenly find themselves on the losing side of the power struggle.

For most of my life, the “Liberal Construction” folks have been in charge.  I understand the Siren Song’s attraction to this philosophy. After all, “only a psychopath would doom people for doing things that society finds acceptable throughout the world, just because of the words of some dude that’s been dead for two hundred years, and couldn’t possibly have foreseen these circumstances!”   They believe that the constitution is a ‘living document’ and must change with the times, as we, and our language change with the times.

The thing about it is, this philosophy is frankly, to my way of thinking, WRONG.

Why? Because the writers DID foresee that there might be circumstances where what they wrote would no longer be relevant to the times, and they set up a way to fix it.  It’s called the amendment process and its article V of the document.  It’s so simple that they managed to do it with a single paragraph.  If society actually found the document’s requirements to be in error then surely you could get 2/3 of each of the houses of government to agree to it, and ¾ of the states to ratify it?  After all this form of change has been done 17 times, not counting the first ten amendments, which came with the original document. Changing it was made hard on purpose, to ensure that it really was the will of the people, and not just a bare majority swaying with the whims of public opinion from day to day. This is the “living” part of the “living document” as I (and many Supreme Court judges) see it.  Trying to break out the Ouija Board, or use a Medium to determine “intent” on something is, again to my way of thinking, folly.  Unless they wrote it down in commentary, (see also the federalist and anti-federalist papers) recorded it via some other medium (video, audio…) the only thing we can really go on, is what the law SAYS.

We are now seeing what happens when the pendulum swings. There have been 31 decisions this year by the Supremes, and on nearly all of them have been ruled on, based on a Strict Construction.  The funny thing is that in some of the cases, the left argued for a strict interpretation of the law, and in some, they argued for liberal construction.

The 1800 pound Pachyderms in the room, are of course Dobbs V Jackson Women’s health, New York State Rifle and Pistol Assn. Inc V Bruen, and Kennedy V Bremerton School District, all of which where decided on strict construction grounds, and all of which pissed off the left.

It’s worth noting here that: Torres V Texas Department of Public Safety, Xiulu Ruan V United States, and United States V Taylor were ALSO decided on strict grounds, but the left was fine with them, and a few of the folks on the right were up in arms.  (Those folks seem to like the idea of “If they’re accused of wrong-doing, they’re guilty, and should be hung.  I don’t subscribe to that point of view.)

By the way, all of the decisions, in all of their glory can be found HERE:

Some of them are rather difficult to get through, and it’s worth noting that if you skim your cursor over the link it tells you what the bone of contention was.

The real fun to all of this, is that in the “syllabus” for each decision, there is a discussion of “what this really means, and why the “dissenting decision” is wrong.  This is usually expressed in very polite language but boils down to: 
“Look Sotomayor you’re talking about ‘feelings’ as if they were law, and bringing up cases we threw out in the 70s as being bad law, you stupid bint. Here are the relevant decisions, with chapter and verse, how about you fucking read them?” 
“Breyer, you senile old fool, you ruled against this very thing in 85, and now you want to find the other way, because your politics wants it? Dude, that’s not how this works.” 

Let me visit each of the big issues very briefly. First let’s look at Dobbs. 

Look, Roe V Wade was garbage, and everyone, including the left’s saint, RBG knew it, and talked about it way back in the 80s as garbage. Roe created entire new concepts that suggested we should read into and imply rights based on some sort of “Feeling.” Quoting the opinion of the court: “And a third path was that the First, Fourth, and Fifth Amendments played no role and that the right was simply a component of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. Roe, 410 U. S., at 153. Roe expressed the “feel[ing]” that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.” Casey, which backed Roe basically said “we’re not sure that Roe is right, and in fact we are sure that parts of Roe are dead wrong, but we don’t want to rock the boat, so we’re going to find for abortion.” 

The plaintiffs had attempted to make the case that “well, abortion has always been a thing, and it wasn’t a big deal, no one made it illegal until the 50s, Roe just put the nation back where it should be.”  The trouble is, that’s a lie. Another quote from the findings: 
“Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.”  See the proponents of saving Roe tried to make the case that “it was important to not change the rules.  The trouble is ROE CHANGED THE RULES BIG TIME.

All of this was explanation for why reviewing Roe was reasonable.  The big thing, and the takeaway that the left stays quiet about, is that Dobbs does NOT illegalize abortion.  It merely states that Roe was a law posing as a decision, that doing that is not constitutional, and that the whole thing, being something the Federal government has no right to decide on, (short of an amendment) is a problem for state government, state laws, and state courts.  The dissent’s case basically came down to “don’t change this, because the people won’t like it!”  Funny thing, the same could have been said for Brown v the Board of Education.

A fun piece on this (speaking sarcastically) is that the Federal government COULD have a say, for abortion PILLS.  There are states that have made it illegal for residents to travel to another state to get an abortion, or to get abortifacients through the mail. (only one or two, but they do exist)  There are also states that specifically allow Doctors licensed in their state to treat residents of other states, and to prescribe pills, including abortifacients through the mail. (again, only one or two, but they exist, I live in one.)  This sets up a problem that the federal government will HAVE to address, and has authority to address, due to the interstate commerce clause.

Look, I could go on for days on this decision, the Supremes went 213 pages.  If you want some rather entertaining reading, go take a look.  This is what decisions SHOULD look like.

The New York state Rifle and Pistol Assn. case I have already covered at some level here.  All I have to say about that is that it’s ABOUT TIME.  The Sullivan act was racist on its face. At the time of adoption, it was pushed by the politicians of New York City as a way to protect good WASPs from the Micks, Wops, and Blacks (of course that’s not the word they used) that “Threaten our way of life.”  Basically, if you were a good White Christian, or even a papist, you could get a permit, if you were one of them immigrants, no gun for you, you’re a potential criminal. NY got a new hole stomped in them, and it’s about time.

On Kennedy V Bremerton: Well, that’s my home stomping ground.  This was politics pure and simple; the School District was so afraid of winding up being sued by some Madeline Murry O’Hair type that they went full Nazi on the coach.  This has been miss represented by the press as “Coach Kennedy refused to stop praying with the kids.”  Not quite true.

Quoting from the decision: The contested exercise here does not involve leading prayers with the team; the District disciplined Mr. Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015. In forbidding Mr. Kennedy’s brief prayer, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. Prohibiting a religious practice was thus the District’s unquestioned “object.” And “but any sort of postgame supervisory requirement was not applied in an evenhanded way. The district thus conceded that its policies were neither neutral nor generally applicable.”

There’s a lot more in there to define the fact that Kennedy wasn’t in a paid status, wasn’t speaking as an official or as an employee of the district, and in short was censored for the exercise of his first amendment rights of freedom of speech and freedom of religion.

This moves the burden of proof to the School district to prove that they had a “compelling interest” to stop his actions.  This is a “Strict scrutiny” thing. In other words, “you better make this GOOD, and PROVE that there’s something bad going to happen if you let this guy do what he wants.”  They failed to do so.

So, the takeaways from this? You get to pray if you aren’t being paid (gosh, that’s mighty kind of you.) Your employer doesn’t own your speech at all times, just when you’re speaking for them. (again, gosh, thanks.) and the big one: If you’re an employer, make sure you fire the guy for the right thing!  In the way BHS handled this, they shot themselves in the groin.  Had they worded the case differently, they might have won it.  The thing is, really, someone on the school board didn’t like a coach being visibly religious, and decided to make an example of him.

OOPS, I don’t think this plan was very well thought out, dude.
Now, all of those decisions seem pretty earth-shattering, right?
Heh, you ain’t seen nothing yet.

The one I am waiting on is West Virginia V The Environmental Protection Agency.

The case rests on the question “Does an Executive Agency (IE a bureaucrat) get to make rulings by fiat that are in effect laws?”  The particular thing at issue is the “Clean Power Plan” adopted under President Obama, and estimated to cost up to $33 Billion a year and reorganize the national power grid.

West Virginia is suing, along with a couple of coal companies, saying that this is in fact, a law, and as such, is something that needs to go through Congress, or that Congress needs to specifically authorize the EPA to make laws in this area. 

But the overall ramifications are much bigger.  If W.V. wins, it sets up a precedent to challenge the FDA, the National Labor Review Board, the CDC, and the BATFE.  Before his death, Supreme Court Associate Justice Antonin Scalia wrote in a decision, “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.”  All of this might just peel back the role of the executive branch, in the form of appointed bureaucrats answerable to no one but the guy sitting behind the “Resolute Desk” and return power to congress that has been leaking out since FDR.  I see this as a good thing.

Well, this has already gone on longer than I would have liked so I’ll leave it at that.  I wanted to discuss the NDAA and what congress is doing about the suicide issue in the Army and Navy, but that’s going to have to wait for another day.

Take care, watch your six, 
Until next time I remain,
Yours in service.
William Lehman.


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