4 ms·

> It’s not about “values,” but the plain meaning of ordinary English words. It's plain to me that the call records are 'my' data. I don't see why your interpre

> It’s not about “values,” but the plain meaning of ordinary English words. It's plain to me that the call records are 'my' data. I don't see why your interpretation has a superior legitimacy to mine; we both know that there are many serious arguments on both sides (let's spare HN from repeating them). Honest question: Why would your position be 'plain', and the other an imposition of values? Also, I would appreciate if you would provide some expert context: The comment reflect an approach to the law that is one philosophy among several leading ones, or perhaps rather one position on a continuum between 'strict construction' and interpretation.[0] But I'm not an attorney and I'm hoping you can provide better context than my amateur attempt at it. Also, clearly we do not and cannot follow the 'plain meaning' of the law. For example, even in something so prominent as the U.S. Constitution: The First Amendment is treasured and protected, but exceptions are (and must be) made for slander, fraud, significant threats, etc., and none of that is anywhere to be found in the text. The Second Amendment's text doesn't make exceptions for regulating more dangerous weapons, but we must not allow anti-aircraft weapons or nuclear bombs in private possession. So among real practitioners and experts, how are simple algorithms such as 'the plain meaning' squared with those realities? I really do mean them as serious questions, not as a debate; I think the heart of these issues is in the nuance on that continuum, and we can't understand them without understand it. [0] As an aside, I think that strict construction appeals to many HN readers because it is familiar, the way the compiler/processor interprets code/instructions. But consider that strict construction can face the same limitations in real-world applications as code, and while we sometimes must say 'computers can't solve that problem', courts don't have that luxury - they must output a solution, even if the code isn't up to the task.

rayiner 8y ago
Textualism does not mean there is no room for judicial interpretation. Some text is more open to interpretation than other text. In the 4th amendment, the text makes clear that it is a private right—it protects “their” house, papers, effects, etc. We can argue about what that means (I think metadata is not “yours” because you didn’t produce it, you don’t own it, and you typically don’t even have access to it.) But leaving that aside, whatever defintion of “their” we choose, we must respect that the word creates a textual limit. We can’t go applying the 4th amendment to property that is not “theirs” by appeal to some higher values. But there is lots of text that is open to interpretation. The framers didn’t say “the government shall make no law regulating speech.” If they did, I’d argue all those First Amendment exceptions were unconstitutional. What they said instead is that the “freedom of speech” “shall not be abridged.” They referenced an existing concept (“freedom of speech”) that was understood to have exceptions and limitations. Likewise, the 4th amendment prohibits “unreasonable” searches. The 8th amendment prohibits “cruel and unusual punishment.” The 14th amendment requires “equal protection of the laws.” What are those things? They are ambiguous concepts that courts can define.

rayiner 8y ago

Textualism does not mean there is no room for judicial interpretation. Some text is more open to interpretation than other text. In the 4th amendment, the text makes clear that it is a private right—it protects “their” house, papers, effects, etc. We can argue about what that means (I think metadata is not “yours” because you didn’t produce it, you don’t own it, and you typically don’t even have access to it.) But leaving that aside, whatever defintion of “their” we choose, we must respect that the word creates a textual limit. We can’t go applying the 4th amendment to property that is not “theirs” by appeal to some higher values. But there is lots of text that is open to interpretation. The framers didn’t say “the government shall make no law regulating speech.” If they did, I’d argue all those First Amendment exceptions were unconstitutional. What they said instead is that the “freedom of speech” “shall not be abridged.” They referenced an existing concept (“freedom of speech”) that was understood to have exceptions and limitations. Likewise, the 4th amendment prohibits “unreasonable” searches. The 8th amendment prohibits “cruel and unusual punishment.” The 14th amendment requires “equal protection of the laws.” What are those things? They are ambiguous concepts that courts can define.