December 15, 2003

Intent is 9/10ths of the Law

Once upon a time in the Land of Make-Believe there was a small band of thieves that stalked a public park wearing KISS make-up. They would jump out of the bushes and snatch the purses of old ladies, take the watches from yuppie men, and the candy necklesses from little boys and girls.
"I have no idea who they were or what they look like," each victim would tell the police. "They were wearing frickin' KISS make-up!"

The local citizenry was outraged that common criminals would conceal their facial features and make it impossible to indentify them in a police line-up.
The town's Council passed an ordinance making it unlawful to wear greasepaint, or any mask, to conceal one's true identity while on public property.
The townfolk were very pleased with this new law. Until Halloween came around.

"Oh, no! We've killed Halloween!" one mother of four cried to the Mayor as she consoled her sobbing children in the Town Hall, "and the Council is out of session until January! Whatever will we do?"

"Go to the Courts!" one brave high school student roared.

"That ain't gonna work," said the local florist. "The law is plainly written: 'No masks in a public place'. I'm afraid there'll be no trick-or-treating this year."

But the moms and dads of the Land of Make-Believe took the case to court anyway...and won.
The Justices of the Court wrote this very brief opinion:

This court finds that the statute at issue in this case does not prevent the celebration, observance or practice of Halloween; nor of any festivities heretofore traditional and appropriate including, but not limited to: individual mask-wearing, trick-or-treating, bobbing for apples or any other similar produce, assembled masquerade parties, keggers or any other activities associated with Halloween at time previous to the enactment of said statute.

Why not?
Because the Court looked at the Legislative intent of the statute and found that it had been originally intended to stop thieves from hiding their faces during the commission of a crime. Since there was never any intent by the Council to interfere with the traditions of Halloween, the Court ruled (since the Council was out of session and could not clarify the law) that Halloween could go forward.

Determining the "legislative intent" of a law is one of the major tools of settling case law. In order to adjudicate the Law, a Court must know what the People -- via their elected legislators -- have intended that Law to be.

The Supreme Court of Massachussetts has recently ruled that the right of homosexual men and women to marry within their own gender is guaranteed by the Massachussetts state Constitution. They argue that to forbid marriage on the grounds of sexual identity is discrimination under the Law. But is it?
From Merriam-Webster's online dictionary:

mar·riage ('mar-ij) noun 1 a : the state of being married b : the mutual relation of husband and wife : wedlock c : the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family. 2 : an act of marrying or the rite by which the married status is effected; especially : the wedding ceremony and attendant festivities or formalities. 3 : an intimate or close union [the marriage of painting and poetry -- J. T. Shawcross]
The word "marriage" meant to John Adams -- author of the Massachussetts Constitution -- just that: a legal union between a man and a woman. The fact that recent cultural shifts (and the resulting etymology) has resulted in our use of such terms as "same-sex marriage" is irrelevant to the Law. The intent of the Law's authors and ratifyers -- the People -- trump any foggy notions of what any altered usage of the language might, to the selectively undereducated, imply.

What the Massachussetts Supreme Court has done is to take the language of the People as it was (and intended to be) understood, and translated it into the modern colloquial usage.
Whether or not you or I support or oppose the legalization of gay marriage or civil unions isn't at issue (I happen to support it) . The issue is: Who, in a republic of laws, not tyranny, writes the Law?

Judicial Tyranny is the art of changing existing Law by redefining the words that already make up that Law. The rule of Whim -- of a few black-robed government appointees assuming Rule of the People -- is the most dangerous and insidious of the ways in which the rule of the People may be undermined because it imposes upon them a Law which they did not write and to which they did not consent.

Oh, and that Gene Simmons guy? That was me. (hey, Tongue is 9/10ths of the Kiss y'know...)

Posted by Tuning Spork at December 15, 2003 08:43 PM

When a court calls a law constitutional or unconstitutional, they are saying we already consented to, or rejected that law when we ratified the pertinent constitutional provision. In other words,(sports analogy coming!) we already agreed to the rules of the game, and the rules require a certain outcome. But it doesn't give them leeway to call a field goal a touchdown...and impose it on baseball.
Any honest reading cannot claim Americans have consented to this, and it's far too profound a change to make without our consent.

Posted by: Noel at December 15, 2003 09:26 PM

"When a court calls a law constitutional or unconstitutional, they are saying we already consented to, or rejected that law when we ratified the pertinent constitutional provision."

Exactly! That's the stuff we call "common law"; the law that's implied by existing statutes.

I suppose we could say that the Massachussetts Court is engaging in "uncommon law"?

Posted by: Tuning Spork at December 15, 2003 09:38 PM

"Common Law" is court created law, also know as "Case Law." The 7th Amend. protects "Common Law" - which is a good thing. We are SUPPOSED to observe Stare Decisis in order to protect the basic structure of the common law, and the Dicta in a decision helps us understand how it is applied so that the basis for the common law may be preserved, or modified appropriately as time advances.

The problem with the Mass. Sup. Ct. is that they are using modern definitions applied to an ancient definition. Marriage was (and is) a religious institution, and the way to NOT have it be religious, originally, was by having a "common law" marriage - presenting yourself to the world as married. (As far as I know, you can still get married that way in Washington DC... so be careful how you check into hotels with your secretary in the Capital...). The Mass. Ct. wanted to apply the modern understanding of the legal organization that recieves certain legal benefits and recognition (i.e. married couples) without recognizing its history. The Mass. Ct. abandoned "common law" construction with deference to stare decisis and history in favor of the political result desired by the majority.

It was a sad day for the common law.

Posted by: Bronson Yake at December 16, 2003 09:34 AM

As an aside... common law as applied to statutes is how the courts add flesh to the law. You have all heard that a law isn't a law until a judges says it's the law, and that's basically true. The statutes define the structure (like a skeleton) of the policy that the legislature wants and the courts decide if the policy is fat or skiny with the gloss that they add.

That's not necessarily a bad thing... you see many legislatures are populated by non-lawyers who don't really know how to right good statutes, so the burden falls to the courts to divine the intent. The important thing, then is careful selection of our judges. There really should be guidelines that have to be followed in the selection of judges including a demonstration of appropriate judicial temperment. Oh well...

Posted by: Bronson Yake at December 16, 2003 09:41 AM

Well... with the limited traffic that makes it to my sight, I've decided to visit various blogs where like-minded folk congregate and put forward my greatest activist ambition, at this point.

We need a Constitutional Amendment that will repeal the 17th Amendment.

The 17th Amendment was the biggest single blow to federalism. The government used to have the voice of the states (Senate) and the voice of the people (House of Representatives). Now we have 2-year Reps and 6-year Reps, and states, as soverign entities are merely a legal technicality, a footnote in America. To restrain the growth of the Fed, we need to repeal 17!

Spread the word!

Posted by: Bronson Yake at December 16, 2003 08:37 PM

Bronson, we've had well over 350 visitors in the past 36 hours. It's just that you're the only one whose offered a Comment!

Send me your e-mail address. I'm at:
if you want to be a contributing writer here! Seriously. I've visited your blogspot site and I like the way you write. So get in on the action! (Noel and I can't carry this thang forever.)

Posted by: Tuning Spork at December 16, 2003 09:24 PM
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