Tuesday, May 26, 2009

Intellectual Integrity and Constitutional Interpretation

Every time a court gives a controversial decision I look in vain for signs of a person with intellectual integrity who says, “This is a bad law that should never have existed, but the court was right to uphold it,” or, “This is essential law that the Constitution should not prohibit, but the Court was right to say that the Constitution does prohibit it.”

When the California Supreme Court upheld a voter-approved initiative to ban gay marriage, many people standing before the court shouted “shame on you.” In other words, they asserted that the Justices did something wrong – something for which they ought to feel shame.

They made this statement even before they read the opinion of the Court. All they knew was the outcome of the decision. They had not looked at any of the reasoning behind it. Yet, still they asserted, in full arrogance, that their interpretation of the law could not possibly be in error and, if the California Supreme Court said something different, we are justified in assuming the mural culpability of its members.

The people who should feel shame are the protestors, not the justices. Their showed the world an amazing amount of arrogance and self-importance – a level that a decent person would never ascribe to.

The decision in this case hinged upon whether the voter-approved initiative was a Constitutional Amendment, or a Revision. Revisions have to go through the legislature, whereas Amendments can be approved by the voters.

So, what determines whether or not a particular change is a Revision or an Amendment?

To most people in California and onlookers around the world, there is a simple test. "If I believe that the legislature is more likely to give the results that I want, then a particular change is a revision and requires legislative approval. If I trust the people to give the decision I like then the proposed change must be an amendment."

This is absurd on its face. Yet, the vast majority of Californians appear to embrace this absurdity. At least, they find an amazing degree of similarity between what the law actually says and what they want the law to say. This amazing degree of overlap is best explained by saying that people are using what they want the law to say as their measure of which interpretation is correct.

The degree to which people are basing their interpretations of the law according to what they want the law to say is simply too obvious to ignore. We would be foolish to think that the correlation between those who WANT the decision to come out a particular way and those who think that the law actually supports that decision is merely a coincidence.

This is what the Bush Administration did in order to justify its invasion of Iraq and the torture of prisoners. It went to the Justice Department and said, “This is what I want the law to say, so you job is to find an interpretation consistent with that desire.” Gay marriage proponents acted just like Bush did. They want the law to say something in specific, so they insist that the interpretation that fits their desires must be the correct interpretation.

Yet, in the manner befitting of hypocrites, they condemn the Bush Administration for doing just that – for interpreting the law only to their own desires. In fact, many of these gay rights activists insist that Bush Administration officials who interpreted the law to fit their desires should be prosecuted as war criminals.

Yet, they prove themselves to be the same types of people – those who determine what the law says by looking first at what they want the law to say.

As for me, I am going to do something radical and unheard of. I am going to reserve judgment until after I have read the decision. In reading the decision, I am not going to judge the results by whether or not they give the answer I like. I am going to judge the results according to whether or not the premises are true and the argument is valid.

Knowing that, as a human being, I am susceptible to interpreting the Constitution to fit my desires alone, I will be on the lookout for those tendencies.

In fact, it may be wise to begin with the assumption that the Constitution will come down on the 'wrong side' of a given law. This way, one can then look for evidence that overrides this presumption. By doing so, he or she might actually live up to their intellectual responsibilities.


Baconsbud said...

I haven't really been following this debate but what you say makes good sense. It isn't just this court decision that you have it happening with but it gets most of the attention. It is hard not to be a hypocrite in all things and something that people are passionate about just brings it out more.

Mike said...


If you are a homosexual, then I am impressed by your ability to put reason over emotion. If not, I think it is absurd to ask the protesters to feel shame. They are being denied the fulfillment a very basic desire that most people enjoy with out obstruction or prejudice, and that is a very painful experience. What matter is it if the court only upheld the process by which bigotry was made legal, rather than the bigotry itself? The end result is still the same for those affected- they are still opressed. The court could have addressed the larger issue of gender equity and equal protection, but they ducked it.

True, protesters of all causes would benefit from making more informed and appropriately targeted responses, but I would let these people hew and cry a bit and certainly would not suggest they ought to feel shame. It's not as if they advocated violent reprisal against the judges. They went to court to fight state mandated oppression in a country that purports equal protection under the law. On the mere basis of legal procedure, they ended up with their shackles tightened. Shame on somebody.

Kristopher said...

this is a very interesting post.

the protesters are protesting that the law is a bad law in essence and the judges are responsible for determining if it is good or bad law in process. which is a very different duty

now it is the duty of a judge to judge a law based on whether it followed the correct process in coming to be a law and to interpret it as the legislature intended if there are disagreements.

however they also have a human duty to write wrongs and to solve injustice.

i am interested in your take on which duty a judge has to be beholdent to.

for instance if we imagine a law. and this law was legally made and easily interpreted and does not contradict the constitution... but it is wrong in it's essence ,it hurts people.

the judge has a duty to uphold the law only and leave it to congress to change the law.

but as a human he has a duty to use the power given to him to keep people safe from harm.

there is the similar question of a lawyer with a guilty client.

are desires best fullfilled by following a system of rules that lend legitimacy to the system but hurts people

or are they best fullfilled by a rogue judge with a riteous cuase.

as an over arching rule i would have to say the former but in a real situation i am tempted to say the latter. but every over arching rule is made of real situations.

i find this to be a contradiction in my thinking that i dont know how to solve.

arcane rules that hold up a just system vs the real ability to help real people....

or perhaps we have to pick and choose the places where we use each depending on their severity, of the situation and the status of the system.

in nazi germany was a judges obligation to uphold bad but properly formed law more important than the lives of the victims of that law?

on the other hand without the system in place limiting judicial authority to interpretation and not creation of law, a hitler like judge could destroy a just system of law....

gah! i am thinking in circles!