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> But signals transmitted out into the world does not fit neatly into any of those four categories. Therein lies IMO one of the big issues with US justice: the

by dan_bk 12y ago

> But signals transmitted out into the world does not fit neatly into any of those four categories. Therein lies IMO one of the big issues with US justice: the law is interpreted literally. But the aim of the original law (what it attempted to protect or achieve, i.e. the citizens' privacy) is not really deemed relevant.

dragonwriter 12y ago
> Therein lies IMO one of the big issues with US justice: the law is interpreted literally. But the aim of the original law (what it attempted to protect or achieve, i.e. the citizens' privacy) is not really deemed relevant. In the US legal system, the intent of the law is considered quite relevant in the application of the law.
- anigbrowl 12y ago
  By some judges, not by others. If you adhere to a strict textualism of the sort favored by Justice Scalia, intent is a nice frame for the picture, but needs to be epressed operationally, eg Justice Scalia has little time for quotations from the Congressional record about what lawmakers aimed to achieve, and prefers to focus on the text of the law that was passed rather than the goal that was intended to be achieved. Likewise, justices have argued that the best cure for a bad law is zealous enforcement, which will (it is presumed) lead to its displacement by a better law. These are not the only views in play in the judiciary, but they are important ones nonetheless. I recommend a book by Richard Posner called 'How Judges Think' which offers and accessible and thought-provoking view of the clashes between different philosophies or jurisprudence.
  - andrewla 12y ago
    Scalia's textualism is more nuanced. When we say something like "what the lawmakers aimed to achieve", there is an implicit assumption that all lawmakers agreed with the intent of the legislation. But what they vote on is the text of the legislation, not the intent. So while there might be a committee of 14 congressmen that intend a law to act a certain way, there is a larger group that then proceeds to debate and enact the law, that may not share that intent, but may share the intent as codified in the law, which may be narrower or broader than the intent of the people who wrote the legislation itself.
deleted 12y ago
[deleted]
- chenelson 12y ago
  I thought the Founders were fighting against the so-called needs of law enforcement; so much so that the US literally exists because of heavy-handed governmental action. The Fourth Amendment was intended to keep the the Founders' business interests secure, and prevent, say, search and seizure of Samuel Adams' smuggled goods. This so-called "law enforcement need" is the creation of a few odd ducks such as Richard Nixon and Nancy Reagan, and has caused more damage to privacy than the NSA ever could.
  - mpyne 12y ago
    > The Fourth Amendment was intended to keep the the Founders' business interests secure, and prevent, say, search and seizure of Samuel Adams' smuggled goods. The Fourth Amendment was passed after there was ever a threat to Sam Adams's goods (indeed, how they can be "smuggled" when they were fully legal under Masschusetts law?). The reason the Fourth Amendment was an Amendment and not already in the Constitution was because the Federalists (predominantly from New England) felt the Constitution already covered those rights implicitly (luckily for us, the anti-Federalists forced them to pass a bill containing specific rights). Where Sam Adams comes into the Fourth Amendment is that the new Americans resented the old writs of assistance that gave British customs officers incredibly wide powers to search (and even seize IIRC) anything they wished. So the Fourth Amendment removed that concept completely by directing that any unreasonable search of a person or their house, papers or effects much be done under a warrant that was specific in nature. I don't know where the libertarian meme that the colonial Americans were fighting against government or the law came from. There were many reasons they fought, but you can look at the Declaration of Independence for a good overview as to the why. But in short, they fought for their rights as Englishmen, not against the idea of law or order. The debates that did occur about government occurred about things like the balance of power between state and national government (c.f. the Tenth Amendment), not with the idea of common law (which the new nation adopted wholesale from the U.K.) or of government (which the colonists had been practicing on their own for more than 150 years by then).
pionar 12y ago
The Aereo decision (also released today) was all about the intent of the Copyright law changes of 1976, not the letter of it.

by dan_bk 12y ago

dragonwriter 12y ago

> Therein lies IMO one of the big issues with US justice: the law is interpreted literally. But the aim of the original law (what it attempted to protect or achieve, i.e. the citizens' privacy) is not really deemed relevant. In the US legal system, the intent of the law is considered quite relevant in the application of the law.

anigbrowl 12y ago
By some judges, not by others. If you adhere to a strict textualism of the sort favored by Justice Scalia, intent is a nice frame for the picture, but needs to be epressed operationally, eg Justice Scalia has little time for quotations from the Congressional record about what lawmakers aimed to achieve, and prefers to focus on the text of the law that was passed rather than the goal that was intended to be achieved. Likewise, justices have argued that the best cure for a bad law is zealous enforcement, which will (it is presumed) lead to its displacement by a better law. These are not the only views in play in the judiciary, but they are important ones nonetheless. I recommend a book by Richard Posner called 'How Judges Think' which offers and accessible and thought-provoking view of the clashes between different philosophies or jurisprudence.
- andrewla 12y ago
  Scalia's textualism is more nuanced. When we say something like "what the lawmakers aimed to achieve", there is an implicit assumption that all lawmakers agreed with the intent of the legislation. But what they vote on is the text of the legislation, not the intent. So while there might be a committee of 14 congressmen that intend a law to act a certain way, there is a larger group that then proceeds to debate and enact the law, that may not share that intent, but may share the intent as codified in the law, which may be narrower or broader than the intent of the people who wrote the legislation itself.

deleted 12y ago

[deleted]

chenelson 12y ago
I thought the Founders were fighting against the so-called needs of law enforcement; so much so that the US literally exists because of heavy-handed governmental action. The Fourth Amendment was intended to keep the the Founders' business interests secure, and prevent, say, search and seizure of Samuel Adams' smuggled goods. This so-called "law enforcement need" is the creation of a few odd ducks such as Richard Nixon and Nancy Reagan, and has caused more damage to privacy than the NSA ever could.
- mpyne 12y ago
  > The Fourth Amendment was intended to keep the the Founders' business interests secure, and prevent, say, search and seizure of Samuel Adams' smuggled goods. The Fourth Amendment was passed after there was ever a threat to Sam Adams's goods (indeed, how they can be "smuggled" when they were fully legal under Masschusetts law?). The reason the Fourth Amendment was an Amendment and not already in the Constitution was because the Federalists (predominantly from New England) felt the Constitution already covered those rights implicitly (luckily for us, the anti-Federalists forced them to pass a bill containing specific rights). Where Sam Adams comes into the Fourth Amendment is that the new Americans resented the old writs of assistance that gave British customs officers incredibly wide powers to search (and even seize IIRC) anything they wished. So the Fourth Amendment removed that concept completely by directing that any unreasonable search of a person or their house, papers or effects much be done under a warrant that was specific in nature. I don't know where the libertarian meme that the colonial Americans were fighting against government or the law came from. There were many reasons they fought, but you can look at the Declaration of Independence for a good overview as to the why. But in short, they fought for their rights as Englishmen, not against the idea of law or order. The debates that did occur about government occurred about things like the balance of power between state and national government (c.f. the Tenth Amendment), not with the idea of common law (which the new nation adopted wholesale from the U.K.) or of government (which the colonists had been practicing on their own for more than 150 years by then).

pionar 12y ago

The Aereo decision (also released today) was all about the intent of the Copyright law changes of 1976, not the letter of it.