It is impossible to rule in accord with the plain text. That is still an interpretation. All reading is an interpretation.
That’s the same problem biblical literalism has. How many sects are Biblical literalists and sola scriptura? Quite a few. Yet they clearly don’t agree.
The moral component kicks in when a law is unclear, and thus has multiple interpretations. That’s when you are beholden to the one that creates the most good.
Yes, people will disagree about what that is. But, the thing is, we can tell by what they choose which moral they uphold. **They CANNOT claim that they were just following the law when there was another interpretation that still followed the law. **
There’s a reason why these “textualists” lean conservative. If these rulings were neutral, there’d be as many conservative as liberal rulings. But there aren’t.
There just is no neutral position with regards to the law. Even as a defense attorney. you were tasked with defending clients by bending the law in your favor.
Textualism is a myth. Just like biblical literalism.
I completely agree. A defense attorney should advance any colorable interpretation of the law that serves his client’s interest. That’s the proper role of a defense attorney: he is an advocate for his own side, not a neutral arbiter.
Then you’ve just admitted that the law is not absolute and can be bent one way or the other. That’s my point. Hence any claim that there is some correct, underlying meaning to the law is bogus. Or else defense attorneys would be unable to do this.
What you call “textualism” bends the law. There is a definition of operate that is used in DUI laws all over. They use operate to mean “in control of,” which includes being in the car when it is stopped.
So now you have two possible textual interpretations. But you claim that one of them is the “real” interpretation. Whether you are conscious of this or not, that means it just supports the goals you support. There is no reason to prefer the one that leads to the worst outcome.
That’s what I mean by saying textualism is a myth. If it weren’t, then it would reach the same crossroads, and then be unable to continue. But it doesn’t. It declares the “one true meaning” of the term.
I mean, I couldn’t get a better example of how textualism isn’t remotely objective if I tried.
AT NO TIME was he asked to drag the disabled trailer. Why does that keep coming up? He was indeed told to wait in the cold. Waiting in the cold is not by any stretch of the imagination a refusal to operate a vehicle.
Let’s say that instead of it being cold, it was 72 degrees and the driver just didn’t feel like waiting. Instead of a gas station, he drove the truck to a store to do some shopping for later that night.
Does the last paragraph change your analysis of the case?
Let’s say I am half way across the country on business (I flew there). My brother calls and asks if he can use my car sitting at home (he has a set of spare keys). I tell him yes.
Later that day, a police officer asks me if I have been operating my automobile that day. Should I answer “yes” because I was in constructive control by dictating its use to my brother?
OR, is it true that even though there might be four or five different dictionary definitions of the word “operate” when we use that it a motor vehicle context, it is synonymous with “drive”?
Yes, because *then he would not have had a reasonable expectation that by operating the vehicle in the manner in which he was instructed, he would have been endangering himself. *:smack:
It is common understanding that a long-haul trucker’s job involves not only actually driving the vehicle (narrow definition of “operate”) but also maintaining a reasonable degree of control over the vehicle even when it is stopped (broad definition). This is demonstrated precisely by the fact that the company, by its own admission, fired the driver for failure to fulfill that part of the vehicle *operator’s *job description.
Do you really imagine that the intent of Congress was to say that “employers shouldn’t be able to pressure truckers into performing their essential job functions in a way that endangers themselves or the general public while their trucks are actually moving, but are perfectly free to do so at any other time”?
Let’s suppose that the company had instructed the trucker to park his truck in the middle of the road, perpendicular to the flow of traffic, shortly before a busload of orphans was expected to come around a blind curve, collide with the truck, burst into flames, and plummet a thousand feet to the jagged rocks below.
Would you argue that the driver would not be protected by this statute from being fired for refusing this order, despite the fact that, at the time the horrific orphan-slaughtering inferno occurred, the truck was not actually moving?
What if the employer specifically ordered the trucker to remain in the truck and join the busload of plucky, rosy-cheeked moppets in their shrieking plunge to oblivion, but he failed to do so? Would you then say that this statute does not apply, but that he can be fired for the entirely separate matter of leaving his trailer behind?
It keeps coming up because the PURPOSE OF THE LAW is to avoid a situation in which truckers feel they have to drive an unsafe rig in order to keep their jobs. This exemption to the general principle of at-will employment was carved out precisely because an eighteen-wheeler crashing on the freeway exposes the general public to harm in a way that most people’s failure to do their jobs doesn’t.
It’s true that this guy wasn’t explicitly asked to drive with the disabled trailer. But he did exactly what any responsible person in his position would do, and he was fired for it. If he had been especially desperate to keep his job, and if he had foreseen being fired for doing what he did, he might well have tried to drive with the disabled trailer, endangering God only knows how many buses chock full of orphans.
How could you argue that, given two plausible interpretations of this law, we should choose the one which* encourages* the behavior that the law was specifically intended to discourage?
Although if Bricker’s account of the facts of the case are correct, and this whole situation came about only because the driver was negligent in failing to stop for fuel, ISTM that the company could have just said they were firing him for that and saved themselves a lot of trouble.
If you are so certain that Congress intended for the word “operate” to be simply a synonym for “drive”, then how do you explain the fact that they did not simply use the word “drive”, but instead chose a word with potentially broader definitions?
Or is it your contention that the literal wording of the law is not really so important after all?
I just think that the same rules should apply to Trump as applied to Obama --he shouldn’t get to appoint a Supreme Court Justice in the last few months of his Presidency.
The more I read this thread, the more glad I become that I live in a country that isn’t batshit crazy, and no longer live in the USA.
Bit of an aside here, but here in Germany, our constitution, the Grundgesetz, has the following core tenet:
Any legal decision, any law, and any application of the law has to first pass the muster, “does this respect and protect the inherent value of human beings”. That frozen trucker example? It’d take the courts about two seconds to note, “Demanding that the guy freeze to death or lose his job is fucking obscene, get that shit out of here”. In Germany, we recognize that the purpose of the law must, first and foremost, be to protect people. It’s a nice system, y’all oughta try it.
Similarly, in Germany, there’d be no argument about whether you can fire the guy for this. Sure, in an “at-will” employment system, you could fire the guy for this. You could fire him for wearing a tie you don’t like to work. But in Germany, we’re not stupid, and we recognize that an “at-will” employment system is generally fucking awful for the vast majority of people (i.e. those who don’t own companies). Man, the USA scares the crap out of me.
I really imagine that Congress speaks through its written words, not my imagination.
I’d say if he knew the danger was coming and refused to drive his truck into the danger spot, he’s refusing to operate, and would be protected.
But if he’s told to park the truck, does so, and then is told to walk away and not drive it because the orphans need to be flambéd, AND HE GETS BACK IN THE TRUCK AND DRIVES IT AWAY, then he’s doing a very decent, necessary, human thing. But his firing is not prevented by this law.
Repeat after me: Congress is not my mommy.
The intent of Congress is not to make right all that is wrong. OK? Got it?
The statute does not apply.
There are undoubtedly a host of other laws that apply, but this particular statute does not apply.
Good thing this bat-shit crazy country liberated y’all from a genocidal dictator, drafted a constitution for you based off its own bat-shit crazy ideals, and gets to listen to you lecture us 70 years later on how bat-shit crazy we are.
Itz zee dignity, he tellz me. Itz all in zee dignity.
The german constitution was built from the ground up to ensure that that could never happen again. It is in a great many ways substantially better than the US constitution, from the parliamentary system with explicit controls on how gridlocked the country can become (and no Gerrymandering!) to the no-confidence vote that can trigger new elections if it becomes clear that the government has become dysfunctional in its current state, to that first amendment which protects, above all else, basic human dignity. Meanwhile, what happened to you guys? Your system has pretty much fallen apart.
Listen, don’t mention the war! You mentioned it once, but I think you got away with it. All right. So! It’s all forgotten now, and let’s hear no more about it. So, that’s two egg mayonnaise, a prawn Goebbels, a Hermann Goering, and four Colditz salads.
If a 14 year old girl was “married,” to her 20 year old cousin under Islamic law in Syria, and then the happy couple moved to Bavaria, the 14 year old’s inherent value would be protected by:
(a) leaving the lovebirds to wedded bliss
(b) separating the couple because Germany’s minimum age for marriage is 18, or 16 with parental consent
So far as I can tell, the German federal court decision that recognizes the legality of that marriage and holds they may not be separated has been appealed by the city with no final decision yet, but I’m curious if you agree that 14 year olds married to adults in German in 2017 are having their inherent value respected. And I am told that child brides as young as 11 are similarly situated. Any thoughts on them?
Not really. Haven’t heard of the case. You may disagree with how the court ruled on this one, but the fact is that fundamentally, the court must consider that all-important first amendment. And that’s already a massive step up from a court system that doesn’t have to consider the dignity and inherent value of human life.
