Void For Stupidity

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Hattip to Ann Althouse.  My hero, Supreme Court Justice Antonin Scalia, has been guilty of being brilliant again.  Writing in dissent in the case of Sykes v. United States, he took head on what is becoming a huge problem:  almost comically inept legislation passed by Congress:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

Go here to read the whole magnificent dissent.  As faithful readers of this blog know, I am an ever harsh critic of the judicial branch.  However, much of the problem with the judicial branch on both the state and federal levels is that Congress and the state legislatures pass legislation, often very poorly crafted, filled with ambiguities, mistakes, omissions and sections that are sometimes near incomprehensible.  Courts then have to interpret these pieces of gibberish when cases arise, and the results often satisfy no one.  We live in sloppy times, when basic literacy and elementary logic often seem to be steadily diminishing resources, and no where is that more evident than in the quality of our legislators and their staffs.  Our Founding Fathers gave us a system of self-government that functions only if We the People elect men and women of sound morality, intelligence and character to lead us.  Our failure to carry out our part of this equation is too self-evident to require further commentary here.

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  1. They tell us which light bulbs we must use.

    “We have to pass the health care reform bill so we can find out what’s in it.” They solved the dire (people dying in streets all over) health care crisis in 2014: after Obama gets re-elected. Then, you really begin to feel the pain.

    Truth Twain: “Suppose you were an idiot. And, suppose you were a congressman. But, I repeat myself.”

    And, we the people allow the imbeciles to take more of our money, more of our personal business (e.g., health care), more of our liberties.

    Thank God! They know what’s good for us. They will save us from us.

    Thank God for Canada.

  2. “The last time I checked, 55 of 100 U.S. Senators had law degrees.”

    If almost three decades at the bar have taught me nothing else Art, they have taught me that law degrees and the ability to write coherently and logically do not necessarily go together!

    The real shame of course is they can’t even be bothered to employ competent staff attorneys to make sure that what they pass makes sense. The changes in the bankruptcy code of 2005 for example are filled with problem areas that any competent bankruptcy lawyer would have been able to point out after a few days of studying the changes. Instead, the Courts are spending years dealing with litigation that could have been avoided if members of Congress and their staffs had simply done their jobs competently.

  3. When you try to legislate everything, and when every law is hundreds of pages long, this is the end result. Senator Jim Buckley wrote that most of his colleagues did not read every bill that they voted on, and this was in the 1970s when the volume was less than what it is today.

  4. Bad lawmaking also begets bad rulemaking by the agencies charged with carrying out said laws. Even good lawmaking sometimes results in bad rules when agencies lackcompetent staff attorneys or rules coordinators to interpret those laws. I see this every day at my day job.

  5. How about make the courts send any poorly-defined ligislation back to the legislature for tightening-up?

    Ditto any court decision that is a close decision, like 5-4.

  6. Scalia would be right if the law he was talking about was truly vague. “Violent felonies” is clear enough for me as it was for the other 8 justices. Granted, they didn’t all agree on what it meant but judges often disagree on even the clearest of language so that’s not necessarily evidence of vagueness. It is true that this kind of language gives judges some leeway which is usually used to err on the side of the prosecution and legislatures are loathed to correct it in favor of criminal defendants. I think that’s primarily a problem with the judiciary, not the legislature. Too many biased judges setting bad precedents. One may argue that this means that judges should be stripped of as much leeway as possible. Of course, then there’s the problem with the opposite extreme, i.e., statutory precision can sometimes lead to patently unreasonable outcomes as new unforeseen cases arise. There is a safety valve for this since judges can rule “in the interest of justice” but that power is so rarely used that I can get away with saying that it’s never used. All this is just a long way of saying that the problem is complex.

    Edward, there is no need. The Court can void the entire law and Congress can take it up if they wish.

  7. The problem is that 24 year-old wannabes are the ones who actually write the legislation. These are people who, even if they have a JD, lack the life experience to think through the second and third order effects of what they write.

    Yes, the proposed legislation runs through the professional committee staffs and through the Congressman themselves. But when you start with imprecision, you increase the odds that even after all the vetting, you are going to be left with galring errors and omissions more often than not.

    That is but one part of the problem here.

  8. Too bad Justice Scalia doesn’t believe that the Declaration is an authoritiative lense through which we understand and interpret the Constitution. Otherwise, he wouldn’t take the horrendous position that abortion by will of the majority would be acceptable vis-a-vis the Constitution.

  9. He is absolutely correct in that view Greg, since the Declaration is not law in the same way that the Constitution is. The Declaration is an aspirational statement, while the Constitution is our blueprint for the federal government. The Constitution no more requires the banning of abortion than it requires the overturning of statutes banning abortion. Using the Constitution to reach political goals is precisely at the heart of Roe v. Wade. Overturn Roe, and it becomes a political battle that the pro-life cause will ultimately win.

  10. The Declaration of Independence was a legal brief explaining why the colonists wished to separate themselves from the British empire. It has absolutely no force of law, as Donald said.

  11. Of course, Don, the Declaration is not a legal document per se. But it does set forth certain principles through which the Constitution cannot be interpreted in a way contrary to those principles. Therefore, Scalia is a pseudo-originalist at best.

  12. But it does set forth certain principles through which the Constitution cannot be interpreted in a way contrary to those principles.

    The Constitution and the Declaration are completely different documents with completely different purposes. The latter, as I said, is a legal brief and propaganda sheet (I’m not critiquing it by using that term). It sets forth general philosophic principles, to be sure, but that is all.

    The Constitution was written and ratified a decade later for much different purposes. It sets forth the rules by which the federal government is to operate.

    Therefore, Scalia is a pseudo-originalist at best.

    Only according to the extreme criteria you set forth. According to the actual meaning of the term as understood by most people, he is indeed an originalist.

  13. “But it does set forth certain principles through which the Constitution cannot be interpreted in a way contrary to those principles.”

    I imagine that a Justice Scalia and a Justice Ginzburg would apply “life, liberty and the pursuit of happiness” quite differently in concrete terms. The more vague the language the more license that is given to a judge. I want judges out of the abortion business entirely. Once that is done I am quite confident that politics and demography will ensure pro-life victory through the ballot box. In practical terms of course no majority on the Supreme Court would ever be obtained in any foreseeable future to ban abortion on the grounds that a right to life is set forth in the Declaration of Independence.

  14. Don:

    We are not talking about how Scalia or Ginsberg per se would apply, but how the Founders and Framers (who were really one in the same) would apply principles of life, liberty, or the pursuit of happiness.

    Now with the first of the three, the Founders, as any honest, reasonable person would believe, believed that governments have an onligation to protect innocent life. If Scalia is to be consistent with himself he would have to extend his “if the majority wills it they get it” critieria, he would have to say the same regarding ALL forms of homicide. The Constitution is as silent about homicide in and of itself as it is about abortion. Homicide, unless it occurs on federal property, involves more than one state, or has direct national implications (such as terrorism) is ajudicated at the state level and the states are left to decide as to what specific penal codes they want to enact. This does not mean they have the right to make them legal. And abortion is clearly a form of homicide. In colonial times, abortions performed after quickening (which was defined as discernable fetal movement) were considered homicide by the statutes of many if not all 13 colonies. With the advances in technology, we can determine distinct life (which is to say personhood) with much more certainty much sooner.

    If my crteria for calling Scalia a pseudo-originalist is extereme, so were the Founders.

  15. As a practical matter Greg it is the present justices on the court who make the call, not the Founders. More to the point, none of the Founders ever claimed that the Declaration stood on a par with the Constitution in regard to federal courts making decisions. The Founders would also have regarded abortion as purely a matter for the states, and not for the Federal government. Abortions were banned after quickening in colonial time under English common law. The States did not regulate abortion by statute until the 1850s and 1860s. The Founders would of course have not only thought that the Declaration had nothing to do with state regulation of abortion, they also would have thought the Constitution had nothing to do with a purely state question. The Bill of Rights they would have regarded as completely inapplicable to the States. The Past truly is a different country and a legal challenge to a state law permitting abortion in the time of the Founders would immediately have been thrown out at the Federal district court level. Legal challeges to slavery in the 19th century would occasionally cite the Declaration of Independence and got nowhere fast.

  16. Don

    Colonial laws regarding abortions after quickening remained in force long after the Constition was adopted.

    To say that the principles upon which this country was founded have no authoritative bearing on how we interpret the Constitution renders that same Constitution meaningless. This is really what you and Scalia are saying.

  17. The idea that the Constitution can and should be interpreted in a manner that is informed by the Declaration is not all that idiosyncratic; Lincoln for one believed it. And it can be justified, I think, but only to the extent that the Declaration might serve as evidence of what the Constitution actually means in cases of ambiguity. But the idea that the Constitution and Declaration are somehow co-equal as legal documents simply doesn’t hold up. Nor is the Constitution simply a vehicle through which various expressions or aspirations set forth in the Declaration are to be imposed or enforced. The Constitution no more addresses abortion than it does other moral violations that we normally criminalize, such as murder. The Framers always understood that the Constitution’s principle purposes were to (i) allocate powers between the states and the federal government as well as among the latter’s branches and (ii) articulate and secure individual liberties against government encroachment. Ordinary police powers were reserved to the states to exercise them as they saw fit. Indeed, a state does not have to criminalize battery or even murder if it does not want to, though it cannot legalize the murder of some and not others without at least a rational basis, depending on the classification. The best argument in favor of a constitutional prohibition against abortion is that the 14th Amendment’s equal protection clause prohibits a state from providing protection from murder only for born persons, thereby depriving the unborn of equal protection. Of course this argument pre-supposes that the unborn are “persons” within the meaning of the 14th Amendment, a proposition that can be reasonably asserted, but certainly not one grounded in any sense of constitutional originalism.

  18. Lincoln took the Declaration as an inspirational text in his crusade against slavery, but he never thought that document gave him the power as President, absent a war time measure, to ban slavery, and he never asserted that Congress had such power in a state as opposed to a territory. His use of the Declaration underlines the difference between the Declaration and the Constitution and their role in law and in our government.

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