Republicans To Read, Etc. Ctd.

Let me spell this out, and clarify my position.

First, strict construction. I teach a class in philosophy of law, and most of it is concerned with the nature of interpretation. At one point a student asked “why can’t we just read what it says?”, assuming that were possible in any significant sense, and insinuating that anyone who suggests otherwise is a sophist attempting to circumvent the law.

Law applies to facts. Here’s a simple example: a statute says “no right turn on a red light.” One day a particular driver finds themselves at a red light and turns right, is seen by a police officer, and is ticketed. The words “right turn” in the statute map onto a class of events in the world. In cases like this, if you do go to court, most of the debate between the two sides (remember: there are always two sides) will be about what happened, and in this case, about the reliability of the witness, since the witness (the cop) says she saw it happen. In this case, debate over the meaning of the words “right,” “turn,” or “red” would be sheer sophistry, but happily, few lawyers would waste a court’s time with such.

Here’s another example. A federal statute reads “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” A woman at work is constantly hit on by her boss. Is he “discriminating against” her? Is the presence or absence of this a “condition of employment”? This may seem obvious to us now, but it wasn’t always, and the reason should be clear: “discriminate” and “condition” are rather abstract expressions and concepts.

Figuring out how to interpret them will occur in the context of an actual lawsuit, and there are, recall, two sides. Each side will not only try to argue that the facts were a certain way, but also that the concepts in question do or do not apply to the facts. For example, the defendant’s lawyer may argue that the presence or absence of romantic overtures is not “a condition of employment” at all. The judge will ultimately decide, but when she does, she will have thereby endorsed one side’s interpretation.

Here’s another example. Notice that the text listed the types of classifications the statute is concerned with. One of them is “national origin.” Being born in Mexico and subsequently working in the United States makes one a potential target of discrimination for national origin. But there are easy cases and hard cases. Would the statute prohibit a “naturalized Mexican-Americans need not apply” policy? Obviously. Would it prohibit a “people who only speak Spanish need not apply” policy, especially when very large numbers will satisfy this description because they originate from nations in Central and South America? Not so clear. As it happens, in precisely such a case, the EEOC argued that English-only rules did violate Title VII, the employer argued that they didn’t, and the courts sided with the employer.

This kind of exceedingly abstract language designed to express very abstract values occurs all over the place in the Constitution. So after apologizing for the long set up, my first point is: it is utterly tendentious to implicitly announce that one’s political opponents need to have the text of the Constitution read to them. To see why, imagine that I see you on the street, come up to you, and say “Hi. Listen, do you have a minute? There’s something that I and my friends have been meaning to tell you, and you really need to hear this. You may not like it, but seriously, you need to listen to us for once: thou shalt not commit adultery. OK? Pretty simple, isn’t it? Can you please for a change try to keep this in mind in the future? Because we’re pretty tired of your bullshit.” Unless you are pulsing with guilt over your screwing around, this kind of speech, which implicitly involves what philosophers call “begging the question” is really really offensive. In light of the difficulties of interpreting an abstract, value-laden text like the Constitution, to say “can you please take it seriously for once?” offensively begs the question in precisely the same way.

This would be bad enough, if those who do this could be said to be striving vigorously and faithfully to understand and adhere to the Constitution by their own lights at least. However, this is sadly not the case.

(1) Anyone who ever argued that, surely there must be a way to use the power of the State to prevent the construction of the so-called Ground Zero Mosque, does not understand the meaning of “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” and “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

(2) Anyone who ever argued that it is appropriate for an agency of the federal government to scan everyone’s email and other internet traffic looking for evidence of conspiracy to commit terrorist acts does not understand the meaning of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

(3) Anyone who ever argued that it was acceptable that Jose Padilla, an American citizen apprehended in Chicago in May of 2002, be required to wait in detention for forty-two months before he was even charged with any violation of law does not understand the meaning of the phrase “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”

(4) Anyone who has ever argued that human beings born on U.S. soil are not real Americans because their parents were not, does not understand the meaning of “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

(5) Anyone who thinks that their taxes are a violation of their constitutional rights does not understand the meaning of “The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” and “The Congress shall have power to lay and collect taxes on incomes.”

Could I construct a similar rant about the Democrats? You betcha. And I will… as soon as they propose to lecture their colleagues across the aisle by reading the Constitution at them from the floor of Congress. I have a lively appreciation for the suggestion that Democrats fail to fully grasp the concept of limited and enumerated powers. But as some of the above illustrates, many Republicans fail to fully grasp the concept of civil liberties. A free people cannot long endure without a government that respects both, and a citizenry that understands why it should.

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One comment on “Republicans To Read, Etc. Ctd.

  1. BV says:

    That’s a keeper, dude.

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