I was browsing late-night TV and, as sometimes happened, decided to watch C-SPAN. Yeah, I know, I'm weird. Anyway, I caught the last few minutes of Justice Scalia's Q&A session (if you're searching for it, look for "democracy, patriotism, and common sense" and maybe "woodrow wilson" -- the name of the center where the Q&A was done.) I'm in the middle of rewatching what I missed. As much as you might expect me (and maybe yourself) to dislike decisions the man has made -- the speech was interesting and enlightening.
See, here's how he explains it: judges should stick to making decisions (and helping juries make decisions) based on existing law. When asked about the involvement of the courts in private sexual matters, he replied, basically, that the people had not kept the courts out of such business, and therefore that the courts could get involved. He suggested that perhaps it would, in fact, be a good idea for people to ask their respective legislatures to enact laws to keep courts out, at which point he would gladly stick to the law, and stay out of people's sexual matters. The point was that he doesn't believe judges should make those decisions, the legislative branch should. After all, that is how it was set up! I was encouraged by his suggestion that such laws would (maybe) be a good idea -- the man hasn't (necessarily) been making decisions based on his own gut feeling, but based on what is or is not in the law. If you haven't secured certain rights for yourself, he doesn't feel it's his job to do it for you.
Something else that came up toward the end was the suggestion that maybe, if the Bill of Rights were being rewritten today, our people would not so happily give ourselves the rights we requested back then. I'm happy we have the Constitution we do -- let's be thankful that a few men saw a "big picture" and thought it was worth a try. They didn't think of everything, sadly, and it doesn't look like we'll get a chance to add many basic freedoms to our list anytime soon. But at least they got us started. Were people any less "bad" back then? I highly doubt it. If you read, say, Marcus Aurelius, you see that people are no different today than they were a couple thousand years ago. Technology's changed, health's changed, entertainment's changed slightly, but at the core, people are the same. What was radical was the thought that, despite this evil, it was a good idea to go ahead and give ourselves dangerous freedoms, freedoms individual legislatures could not easily overturn. (Changing the constitution is a hard thing.) The founders didn't just think "hey, let's have a good starting point and see where this leads us", I think they realized that, given the chance, politics would play into the hands of fear-mongers. That, given time, freedoms would disappear. They wanted them to be above all that. They're not merely laws we change every time we elect new representatives, they're something higher. I wish more had been put there, but again, let's be thankful for what we have.
What's really interesting about Scalia's position is that we have a case-law system in place. Each time a court comes to a decision, the result of that decision is then automatically incorporated into our overall legal system. To be fair to each accused individual, we feel it is important that we apply laws equally; if court A saw evidence M and came to conclusion N, and court B is presented with equivalent evidence, it makes sense (from a fairness point of view) that the same conclusion be reached, and in the case of sentencing, an equivalent punishment. (This, of course, unless court B determines that there was something wrong with the reasoning of court A -- but we don't seem to make much of that. The first ruling stands, regardless.) Where this becomes interesting is when a judge/jury decides to interpret law "differently" from other courts. The purpose of courts is to interpret current law in the context of a particular situation. The purpose of courts is therefore interpretation. We can't remove that element. What Scalia believes is, basically, that there is a "right" interpretation to laws which courts should stick to, and that there are "wrong" interpretations -- this is when judges are called "activist judges". Why activist? Because they've created "new law" rather than "new, slight variation, of existing law".
What, then, should we use as a basis for deciding which interpretations of laws are correct? Apparently, intent.
Somehow, judges are expected to derive from the law a sense of the intent of the law, regardless of how badly it was worded, how many exceptions were thrown in, how many loopholes may be found, basically; no matter how sloppy the law, the intent is what matters. Except we don't have intent -- laws are laws, and their intent is not included (generally) in the text of the law. [He apparently favors reading 'other' texts by the same authors to see if more of their values can be deduced from their other writings; this assumes that the laws they proposed and/or wrote directly reflected their beliefs, but considering how most people go about legislation, that's a fair bet. Regardless, none of this is in the law itself.] To programmers, this is like saying "okay, computer, ignore my faulty code and just do what my comments say this should do." To architects, this is like saying "okay, bricklayers, ignore what's on the blueprint and just do what I imagine -- or better yet, do what I bragged to the customer that I'd do." That, I think, is where Scalia's dream falls apart: either we need to follow the rules, or follow the intent, but regardless, we need a reliable paper trail. Without that, you can't (fairly) accuse judges of "misinterpreting" the law. You might as well tell a child "no, Bill, that cloud does not, in fact, look like a piggy, no matter how much you think so."
I'm personally convinced there were better laws we could have had. That the constitution could have been much shorter and more to the point. Maybe someday I'll convince others that we should push for such laws, that a large framework (if you can call it that) of "special cases" don't make for a good legal system. The more laws we have, the more specialized we make them, the more exceptions we create, the more willing we become to do exactly what we've always done -- patch each hole as we find it, put out fires one-by-one, and not see the big picture of what we're creating. As it is, it's an ugly quilt. Our laws are a lot like the "how" of a larger "what" which we fail to accurately describe. We have desires for a certain outcome, but we just can't quite describe the process, so we draw an imperfect image instead. And then we have to live with it.
Scalia seems to have a concept of "what X clause meant back then". He seems to think that things "meant a specific thing back then" and that people -willfully- distort what things mean, rather than admitting that meaning is interpretive. Therefore subjective. How does he know, exactly, what something meant? What it means now? That it should be the same? It's all very odd.
I have to say though, the guy's rather amusing. He doesn't believe that the "living constitution" idea is in favor of -either- liberals or conservatives, nor is it more in favor of greater or lesser freedoms: basically, that which can be easily bent by interpretation can be bent either way in all cases. And I have to agree. So what about my ideas? I don't know. On the one hand, I hope that simple laws can also be clear laws, but people will often believe that the simpler a law is, the more easily it maybe circumvented (easy to come up with counter-examples, loopholes, etc.). I tend to see that as happening with complex laws: you're likely to miss something if you're having to enumerate every possible case. (If you're a programmer, you know -exactly- what I mean; there's a reason we have a 'default' clause in 'switch' statements. We tend to screw up.)
And the thing about judges adding to sentences based on random evidence ... that was good. Have to agree. I'd prefer to make sure sentencing is handled by jury -- but not the jury already deciding guilt. Fun stuff.
P.S.
I think I finally remembered what I meant to add here. Took me a few weeks, and a bit more listening to the radio to pick up my train of thought where it jumped off the cliff. (You haven't lived in southwestern Colorado, eh?) There's been a lot of talk recently about activist judges, picking judges, radical judges, filibusters over judges, presidents getting their way because they have a mandate (51%) from the people, and so forth. Because I no longer have hope that we'll pick good, reasonable judges who'll make decisions based on the law (and maybe tell us what it is we meant to ask our legislators to do for us) ... I instead am left only hoping that the people who want "their" extreme judges chosen will get exactly that -- and that the next time around, the other extreme will get chosen.
Maybe eventually they'll understand Scalia's point about judges -- if the judge's opinion on the matter somehow enters the debate, there's a problem. A judge shouldn't be using his or her own prejudices in the courtroom -- which means that whether a particular judge is in favor of abortion or not shouldn't matter, even if abortion is likely to come up in his or her court room. Maybe we can judge a judge on their good judgment or lack thereof (I had to say it), but we probably shouldn't judge them on their beliefs. A pacifist judge could find that war was justified by law, a pro-life judge could find that abortion is legal under the law. The people you want to pick based on their opinions are your legislators -- and you want their opinions (at least usually) to match your own as closely as possible. (Or, if you're me, you just want them to leave you alone if at all possible, regardless of what they think.) Judges and legislators are in different branches of the government, and for good reason. (And cops? That's a different matter.)