5 ms·

I could do without the originalism. His argument that The FBI's "preferred reading of the law ... would transform the AWA from a limited gap-filling statute ..

by rqebmm 11y ago

I could do without the originalism. His argument that The FBI's "preferred reading of the law ... would transform the AWA from a limited gap-filling statute ... into a mechanism for upending the separation of powers" is more than strong enough without trying to divine the ideas of the long-dead creators of the law. What's important is the letter of the law, the relevant preceding decisions, and the judge's reason and conscience (which is checked by appeals). The context the law was originally written in is just fluff.

maxander 11y ago
Read much about legal cases and you'll quickly realize how little "the letter" of a law (or any other collection of words) really, unambiguously conveys. Context is a necessary fallback in the interpretation of law just as it is in day-to-day conversation. I haven't read this document in detail, but from what's quoted here it seems pretty obvious that the judge's argument isn't strong enough without reference to the law's creators. Its entirely plausible to imagine serious lawmakers making an AWA that was a "mechanism for upending the separation of powers". Only knowing the involvement of these same lawmakers (in part) in the law's creation is this interpretation ruled out- "orginalism" certainly, but here justifiable.
- lmitchell 11y ago
  This is the one thing I really took away from (way too much) recent reading about Scalia and textual originalism - in my opinion, it's almost downright foolish to obey 'the letter' of the original law, and it's completely right of anyone asked to judge based on the law to do just that. I think it'd be kind of stupid in this case in particular and in all cases in general to ignore the context surrounding the law, both at the time it was written and in the present day.
  - justinmayer 11y ago
    Textual originalism is a euphemistic smokescreen, invoked to justify a position as "true" to the original intent even when the justice in question hands down opinions with no Constitutional basis. Scalia was a master at this deception, vehemently excoriating "activist" judges while simultaneously making logical leaps like "corporations are people" and "money is speech". Textual originalism is largely a fraudulent mechanism for justifying a right-wing position.
    - anaptdemise 11y ago
      Although agree, ...with your position, I disagree in your reasoning. Corporations are persons because they are an organized group of people established to carry out the intentions and express the views, i.e. speech, of their members. Citizens United didn't screw campaign finance laws, it affirmed a breakdown of the intention of campaign finance laws. If a company can say, "we make our parts from recycled materials, that's why we are better than our opponents," does that not constitute political speech? Should a company not be able to say that? Should a company not be able to contribute to organizations that support actions, through speech, to the benefit of the company or inline to the intentions of the people involved in the company? The decision was legally correct. The fallout is in our hands... I personally am anoyed that, now, every purchase I make is a political statement. Or being lowered into thinking that, now, is different. Buy American!
      - zardo 11y ago
        >Although agree, ...with your position, I disagree in your reasoning. Corporations are persons because they are an organized group of people established to carry out the intentions and express the views, i.e. speech, of their members. Is that why you invest in a company? So it can express your views for you? I do it because I would like to be able to retire some day, not because I support their polital efforts.
        anaptdemise 11y ago
        > Is that why you invest in a company? > I personally am anoyed that, now, every purchase I make is a political statement. [sic] Edit: "Buffett, of course, has long centered his investment thesis on the idea that it never pays to bet against the U.S. economy in the long run." http://www.marketwatch.com/story/warren-buffett-says-america-is-still-great-2016-02-27 http://www.marketwatch.com/story/warren-buffett-says-america... "The Treasury sold $185.7 billion of securities (over $2.1 trillion in 2016) to finance the war. The public debt rose from $50 billion in 1940 to $260 billion in 1945.[2]" https://en.m.wikipedia.org/wiki/Series_E_bond https://en.m.wikipedia.org/wiki/Series_E_bond ... And definition of... "Sometimes, a boycott can be a form of consumer activism, sometimes called moral purchasing. When a similar practice is legislated by a national government, it is known as a sanction." https://en.m.wikipedia.org/wiki/Boycott#Notable_boycotts https://en.m.wikipedia.org/wiki/Boycott#Notable_boycotts Edit 2: This is one of the startups at a pitch day I attended recently, so sinking karma on an edit/self reply... http://the-citizenry.com/pages/about#philosophy http://the-citizenry.com/pages/about#philosophy "We set out to build a company that celebrates the people behind our products. Our name is a reflection of the collective of individuals – artisans," I apologize in advance for getting a little belligerent but... Let me make you feel better about buying ridiculously marked up "craft goods" made by indiginous peoples by giving a small percentage of our profits back "to the artisans and their villages" (South America), in lieu of a competitive salary to that of a craftsmen working in the country they are sold (US). I am all for globalization and capitalism... just don't wax poetic about feel goods when I know how the sausage is made.
  - anaptdemise 11y ago
    Maybe the principle of the law; as opposed to the letter of the law. The legislature writes, literally, thousands of bad laws and SCOTS sees a handful of edge cases. I, as an optimist think that the individuals in the process of passing poorly written, or otherwise, compromised laws "have their hearts in the right place"(tm). It is the process, and our acceptance of the corruption of said, that justifies the creation of the separation of powers. No matter the intent, consolidation of power ultimately leads to corruption. "It is not power that corrupts. Possibly power allows the corruptible to show their true selves." For ultimate power is not having to say you're sorry, only that "I'm right. Full f*ckn.stop." Or why else would CISPA, which was publicly denounced and failed to pass make it into a (budget bill)[http://www.wired.com/2015/12/congress-slips-cisa-into-omnibus-bill-thats-sure-to-pass/ http://www.wired.com/2015/12/congress-slips-cisa-into-omnibu...]. Democracy in action. Edit: autocorrect of coorption
studentrob 11y ago
> The context the law was originally written in is just fluff The magistrate's job is to apply and interpret the law. Lawyers study the circumstances under which laws were created for years before they can practice, and magistrates are on the whole even more educated in law than your average lawyer. His commentary is appropriate and helpful for fully understanding his logic.
guelo 11y ago
Your point is obviously part of a much bigger legal philosophy debate, but one problem with your pov is that legal code is not that precise. It's much less precise than computer code for example, and even computer code produces tons of bugs due to the programmer not being precise enough. So the legal text by itself is often ambiguous and judges have to guess what the legislators meant to write.
dragonwriter 11y ago
> What's important is the letter of the law, the relevant preceding decisions, and the judge's reason and conscience (which is checked by appeals). The context the law was originally written in is just fluff. The "relevant preceding decisions" include decisions specifying what canons of construction are used to interpret the meaning of law, and those decisions do hold out that legislative intent is a factor to consider when resolving the correct interpretation of words that can reasonably interpreted in different ways before considering that intent.
mmanfrin 11y ago
The context the law was originally written in is just fluff. You have never actually studied law, have you?
swyman 11y ago
Well that's just like, your opinion, man.
jibalt 11y ago
"What's important is the letter of the law, the relevant preceding decisions, and the judge's reason and conscience (which is checked by appeals). The context the law was originally written in is just fluff." Fascinating how you contradict yourself. The judge's reason and conscience demand that he interpret the law as it was intended by those who wrote it. The notion that "the letter of the law" should prevail is completely lacking in a reasoned understanding of what language is and how it works, and the notion that judges should make decisions based on their personal prejudices is completely lacking in conscience.

by rqebmm 11y ago

maxander 11y ago

Read much about legal cases and you'll quickly realize how little "the letter" of a law (or any other collection of words) really, unambiguously conveys. Context is a necessary fallback in the interpretation of law just as it is in day-to-day conversation. I haven't read this document in detail, but from what's quoted here it seems pretty obvious that the judge's argument isn't strong enough without reference to the law's creators. Its entirely plausible to imagine serious lawmakers making an AWA that was a "mechanism for upending the separation of powers". Only knowing the involvement of these same lawmakers (in part) in the law's creation is this interpretation ruled out- "orginalism" certainly, but here justifiable.

lmitchell 11y ago
This is the one thing I really took away from (way too much) recent reading about Scalia and textual originalism - in my opinion, it's almost downright foolish to obey 'the letter' of the original law, and it's completely right of anyone asked to judge based on the law to do just that. I think it'd be kind of stupid in this case in particular and in all cases in general to ignore the context surrounding the law, both at the time it was written and in the present day.
- justinmayer 11y ago
  Textual originalism is a euphemistic smokescreen, invoked to justify a position as "true" to the original intent even when the justice in question hands down opinions with no Constitutional basis. Scalia was a master at this deception, vehemently excoriating "activist" judges while simultaneously making logical leaps like "corporations are people" and "money is speech". Textual originalism is largely a fraudulent mechanism for justifying a right-wing position.
  - anaptdemise 11y ago
    Although agree, ...with your position, I disagree in your reasoning. Corporations are persons because they are an organized group of people established to carry out the intentions and express the views, i.e. speech, of their members. Citizens United didn't screw campaign finance laws, it affirmed a breakdown of the intention of campaign finance laws. If a company can say, "we make our parts from recycled materials, that's why we are better than our opponents," does that not constitute political speech? Should a company not be able to say that? Should a company not be able to contribute to organizations that support actions, through speech, to the benefit of the company or inline to the intentions of the people involved in the company? The decision was legally correct. The fallout is in our hands... I personally am anoyed that, now, every purchase I make is a political statement. Or being lowered into thinking that, now, is different. Buy American!
    - zardo 11y ago
      >Although agree, ...with your position, I disagree in your reasoning. Corporations are persons because they are an organized group of people established to carry out the intentions and express the views, i.e. speech, of their members. Is that why you invest in a company? So it can express your views for you? I do it because I would like to be able to retire some day, not because I support their polital efforts.
      - anaptdemise 11y ago
        > Is that why you invest in a company? > I personally am anoyed that, now, every purchase I make is a political statement. [sic] Edit: "Buffett, of course, has long centered his investment thesis on the idea that it never pays to bet against the U.S. economy in the long run." http://www.marketwatch.com/story/warren-buffett-says-america-is-still-great-2016-02-27 http://www.marketwatch.com/story/warren-buffett-says-america... "The Treasury sold $185.7 billion of securities (over $2.1 trillion in 2016) to finance the war. The public debt rose from $50 billion in 1940 to $260 billion in 1945.[2]" https://en.m.wikipedia.org/wiki/Series_E_bond https://en.m.wikipedia.org/wiki/Series_E_bond ... And definition of... "Sometimes, a boycott can be a form of consumer activism, sometimes called moral purchasing. When a similar practice is legislated by a national government, it is known as a sanction." https://en.m.wikipedia.org/wiki/Boycott#Notable_boycotts https://en.m.wikipedia.org/wiki/Boycott#Notable_boycotts Edit 2: This is one of the startups at a pitch day I attended recently, so sinking karma on an edit/self reply... http://the-citizenry.com/pages/about#philosophy http://the-citizenry.com/pages/about#philosophy "We set out to build a company that celebrates the people behind our products. Our name is a reflection of the collective of individuals – artisans," I apologize in advance for getting a little belligerent but... Let me make you feel better about buying ridiculously marked up "craft goods" made by indiginous peoples by giving a small percentage of our profits back "to the artisans and their villages" (South America), in lieu of a competitive salary to that of a craftsmen working in the country they are sold (US). I am all for globalization and capitalism... just don't wax poetic about feel goods when I know how the sausage is made.
- anaptdemise 11y ago
  Maybe the principle of the law; as opposed to the letter of the law. The legislature writes, literally, thousands of bad laws and SCOTS sees a handful of edge cases. I, as an optimist think that the individuals in the process of passing poorly written, or otherwise, compromised laws "have their hearts in the right place"(tm). It is the process, and our acceptance of the corruption of said, that justifies the creation of the separation of powers. No matter the intent, consolidation of power ultimately leads to corruption. "It is not power that corrupts. Possibly power allows the corruptible to show their true selves." For ultimate power is not having to say you're sorry, only that "I'm right. Full f*ckn.stop." Or why else would CISPA, which was publicly denounced and failed to pass make it into a (budget bill)[http://www.wired.com/2015/12/congress-slips-cisa-into-omnibus-bill-thats-sure-to-pass/ http://www.wired.com/2015/12/congress-slips-cisa-into-omnibu...]. Democracy in action. Edit: autocorrect of coorption

studentrob 11y ago

> The context the law was originally written in is just fluff The magistrate's job is to apply and interpret the law. Lawyers study the circumstances under which laws were created for years before they can practice, and magistrates are on the whole even more educated in law than your average lawyer. His commentary is appropriate and helpful for fully understanding his logic.

guelo 11y ago

Your point is obviously part of a much bigger legal philosophy debate, but one problem with your pov is that legal code is not that precise. It's much less precise than computer code for example, and even computer code produces tons of bugs due to the programmer not being precise enough. So the legal text by itself is often ambiguous and judges have to guess what the legislators meant to write.

dragonwriter 11y ago

> What's important is the letter of the law, the relevant preceding decisions, and the judge's reason and conscience (which is checked by appeals). The context the law was originally written in is just fluff. The "relevant preceding decisions" include decisions specifying what canons of construction are used to interpret the meaning of law, and those decisions do hold out that legislative intent is a factor to consider when resolving the correct interpretation of words that can reasonably interpreted in different ways before considering that intent.

mmanfrin 11y ago

The context the law was originally written in is just fluff. You have never actually studied law, have you?

swyman 11y ago

Well that's just like, your opinion, man.

jibalt 11y ago

"What's important is the letter of the law, the relevant preceding decisions, and the judge's reason and conscience (which is checked by appeals). The context the law was originally written in is just fluff." Fascinating how you contradict yourself. The judge's reason and conscience demand that he interpret the law as it was intended by those who wrote it. The notion that "the letter of the law" should prevail is completely lacking in a reasoned understanding of what language is and how it works, and the notion that judges should make decisions based on their personal prejudices is completely lacking in conscience.