Sheridan: Con-Law

CURSED FATE AND THE NORTHERN LIGHTS

Conlaw interpretation is the process whereby we infer meaning from words and acts of lawmakers.  What did they mean when they wrote "due process of law," for example, or "equal protection?" 

Does the guaranty against unreasonable search seizure really have meaning against the old San Francisco Search Warrant, meaning the foot of a warrantless officer against the door?

Somehow I think that our interpretive process goes way back.

How far?

Here's a Wikipedia article on the three Fates that I found after Googling "Themis," said to be the ancient Greek goddess of law and justice.  You remember her.  She's the blindfolded one holding the scales of justice in the statues and logos  sold by legal stationery and trinket manufacturers.

The Fates, it seems, predate, underly, and perhaps even control, the ancient Greek gods themselves, not to mention various ones from other European cultures as well.

The underlying theme of these Fate, as in fatal, super-goddesses, appears to be birth, living, and death.  The personifications seem to be rooted in the fashion industry:  those who create thread, weave cloth, and cut the resulting fabric.  They're fearsome women, of course (think independent-minded spinsters and witches, hags and crones, not to mention the bitch-goddess Lady Luck herself.  Women don't always come off so well in mythology, do they.  I wonder why.   We should ask a curmudgeon, like the one on Sixty Minutes, you know, bushy eyebrows.

Yup, you wanna do Conlaw, you'd better not ignore the Greeks.

Or the Hebrews.

Would you like to know one of my favorite images of all time?

It's by Rita Mae Brown, the author.  She has a book, written over twenty years ago in which she advises on how to write, which is part of the title, as I recall.  In it she says that all who write in the Western tradition, as opposed, say, to Chinese, Hindu, Persian, Arabic, Egyptian, etc., stand astride two horses, galloping in opposite directions.  One is the clear, hard thinking of the Ancient Greeks, and the other is the mysticism of what she calls the Judeo-Christians, of whom there are precious few, apart from the folks who enjoy one parent of each calling.  There are Jews and Christians, but no Jewish Christians, not since the post-Jesus makeover, at any rate, where the Christian church found it convenient to put a lot of distance between Christianity and its Jewish origins.  James Carroll has written a thick volume on the result, the Holocaust, in "Sword of Constantine."  It sort of takes the Nazi holocaust, perpetrated by Germans, and shows how it was really the Christian holocaust, perpetrated by Christians who thought this was a-good-thing-to-do because God, you know, Yahweh, the Jewish God before Jesus, would be pleased.  Or the people, which may amount to nearly the same thing.  But why get started on religion when we have the fates to worry about, right?

Here's a bit on Themis.

And what brings this up now?

NASA has a project called THEMIS, which is an acronym for something entirely different, and consists of a number of Earth-orbiting satellites which are being used to study the Northern Lights, the Aurora Borealis.  Today it was announced that an explanation has been found to explain the colorful fluctuations of luminosity over the polar region.

You knew they'd come up with one, right? 

It was all a matter of fate.

YOU PAYS YER MONEY AND TAKES YER CHOICE

Conlaw is a game in which the rules are always in play.  We make them up as we go along and break them at will.  All you need is five votes.

What kind of game is it where you get a choice of yardstick, from among yardsticks of different lengths, to measure the doctrine that decides the outcome.

I like my yardstick, which happens to be 24" long.  Others like four-foot yardsticks.  Some like the old 36" yardstick.  No matter, so long as we call it a yardstick.

We all admire the founding fathers, more or less.  Sure, they made a few compromises.  We'll have slavery and the slave trade because we want a country.  That reinforced a much deeper and harder to eliminate value called racism as manifested by Jim Crow.  The framers' big compromise on slavery gave us a civil war that wiped out 600,000 people and left us with a legacy of racism that persists to today and tomorrow.  You could see it in the aftermath of Hurricane Katrina.

What are these different yardsticks?

Justice Scalia likes to pick up the one called "originalism."  He likes cases to be decided on the basis of what he imagines the Framers would have wanted had they only had the foresight to anticipate such things as the Internet, gay rights, and abortion on demand.  They didn't, but we have issues, and so we're supposed to imagine what the Originals might've done.

We have the textualist yardstick.  Justice Thomas can't find a word in the Constitution about gays or abortion so, forgeddaboudit, it ain't there and those poor folks are SOL.  You won't find the word "women" in the Constitution either, so those poor folks are also SOL.

There are references to liberty, property, and people, but certainly "people" can't mean women and gays to a Framer, could they?  Not likely.

Then we have the "evolutionist" yardstick, which causes Scalia nausea.  Most of my students, on an exam, admitted to preferring the "evolutionist" approach, tailoring the meaning of the Constitution to the conditions it is supposed to govern.

Perhaps ones choice of yardstick is influenced by ones predisposition towards a desired result, since the Constitution itself does not, except in one instance, state how it is to be interpreted.  This exception is the 11th Amendment which states that the judicial power of the U.S. "shall not be construed" to extend to certain kinds of suits.  As far as I'm aware, that's the only explicit rule of construction in the text of the Constitution.

If that's the only constraint on interpreting, why, then, I suppose that we're free to use any yardstick we please, or this yardstick here and that yardstick there.

Perhaps if you get the chance someday to write a constitution you will be so kind as to indicate how you'd like it construed, for the benefit of future generations who might be interested in what you thought about things you hadn't thought about.

Nope, it's a game, and the game is to choose in advance the yardstick you'd like to use to come out a certain way, pretending you didn't have any other choices.  It spares you from having to ask the question, "What's right?"  It helps provide you with an answer that says:  "What's right is what this yardstick says."  It spares you from a certain amount of moral uncertainty.  Or thinking, period.