Well, Scalia at least likes to opt for Original Meaning when interpreting the US Constitution and has been known to refer to dictionaries from those times to see what a word “means”. His interpretation states (simplifying here) that the Constitution means what the common man, the guy on the street, understood it to mean at the time it was written.
I do not know if that interpretation can or does apply to the California constitution but as a legal matter it seems some justices actually do go in for the dictionary…200 year old dictionaries at that.
Personally I have never understood the legal profession’s tendency to want to make the language so impenetrable that only they are able to decipher it. Sort of the high priests of old who cannot let the common rabble figure out what is actually in those books the clergy use. Is there a good reason laws and constitutions cannot be written plainly for the average person to be able to look at it and have a sense of what they are on about?
If an amendment denying gays and lesbians the right to bote in California elections was passed, would that be Constitutional? (neverminding, how such a ban would be enforced)
No because that would clearly violate the US Constitution (I think it was Baker v Carr, but I’m too lazy to google). But it would also violate the 26th amendment and the equal protection and due process clauses of the 14th amendment. I think the only citizens who can be denied the right to vote are minors and felons (variable by state).
Awhile back I made a thread on the current Prop 8 and other similar state efforts violating the US Constitution. I think there is a very good argument to be made on that count. Unfortunately I am willing to bet the current conservative SCOTUS will not see it that way. We’ll have to wait for a more liberal court and as noted above that wait could be awhile (Scalia is getting up there in age a bit but he can easily make it another 8 years or longer…the rest are a fair bit younger and not likely to go anywhere soon).
Oh Christ. This again. Such tendency does not exist. Language is not a precise as mathematics, but legal language must describe the legal consequences of every human interaction. By definition, it cannot. Therefore, language must be interpreted, and then the next time a similar but not exactly congruent situation arises, it must be interpreted further. You’re complaining about the complexity not of lawyers or the law, but of life. And baby, there’s only one solution to that.
Not to hijack this thread but there have been efforts in states to ease the legal mumbo jumbo. For instance:
Not sure where such things stand these days but clearly it is not an unusual notion if the states themselves were attempting to clear up the language of the law.
I agree that prop 8 violates the due process and equal protection guarantees of the US Constitution, but I’m not entirely convinced that the current SCOTUS would disagree.
In 2003 they reviewed Lawrence v Texas (and struck down state anti sodomy laws as unconstitutional) and Kennedy wrote the majority opinion. Surpise surprise, the dissent consisted of Scalia, Thomas and Rehnquist but they still got a 6:3 so I think the current SCOTUS striking down state anti SSM laws has hope, even with the current court.
That’s not what textualism says. Textualists look at the meaning of the word as it appears in the context of the law which it appears, not just by going to the dictionary.
A dictionary is only one piece of evidence as to what a word means. It’s not the beginning and the end of a legal argument.
Personally, I’ve never understood people who think their opinions are meaningful when they can’t be bothered to even read the relevant literature. We have prior court cases that address the revision/amendment issue. Did jtgain bother to read them? Did you? They’re not hidden in some secret vault somehwere.
If you want to provide a coherent argument as to what these words mean, then you have to read these court cases. At the very least, the cases will show you what the likely counterarguments to your position are.
This is like complaining that doctors don’t listen to your opinion about a particular medical procedure when you haven’t bothered to read the relevant medical literature.
People can’t even write posts on this message board without having their words misunderstood or interpreted differently. That’s the way the English langauge (and I guess all language) works. When there’s a dispute over the meaning of a word, it goes to court.
Once the court makes a ruling over the meaning, then that creates a precedent. Until another court case comes along with different facts, and the court issues another precedent. All of these precedents start building up, and then you have a body of common law defining the term. And in our system, you have to look at those precedents if you want to argue that a new definition of the term should be used, because the court will certainly look at those precedents.
In this case, the relevant things to look at are: (1) the text of the CA constitution, (2) any prior court cases dealing with the definition of amendment/revision, (3) any legislative history surrounding adoption of this particular provision. You would also probably want to look at the way the terms were being used in Federal court and New York courts at the time of the adoption of this provision. And, yes, you would want to look at a few dictionaries, but not ones from 1776, but from the year of adoption of this provision of the CA constitution. And once you’ve done all of that, I will find your opinion very valuable to listen to.
Since when do recent court cases matter even in a legal sense?
Just one recent example: You had Bowers v. Hardwick that said it was perfectly legit for a state to make homosexual sodomy illegal.
Then you had Lawrence v. Texas less than 20 years later, and one Justice (O’Connor) even voted a different way than she did before.
If the U.S. Supreme Court shows so little value to prior judgements (not one 150 years ago, but one in their own term) then why should legal scholars pretend like they mean something?
First, courts have been known to overturn precedents set by earlier cases. Courts very rarely cite Plessy v. Ferguson as precedent any more. Lawrence explicitly overturned Bowers to the extent they overlapped.
Secondly, the subject matter of the two cases, in legal terms, was somewhat different. And neither of them said specifically what you’ve claimed they said. Paying a smidgen of attention to the content of the case, and not to what some political or religious writer claims it said, is usually a worthwhile endeavor.
Because they do mean something. If you had even bothered to read Lawrence, you’d see that all the opinions spend a great deal of time discussing Bowers and the legal reasoning used in that case to arrive at its conclusion. If you want people to take your opinions seriously, you should at least make a cursory effort to learn about the subject of your discussion.
While I don’t agree with Prop. 8, using the Courts to overturn an amendment that was voted by the People doesn’t wash right with me - Unless there is good reason; frankly, I don’t think there is any compelling reason why Prop. 8 requires the intervention of the judiciary. The People have spoken - isn’t that what democracy is about? If it isn’t, then what is democracy?
No, that’s not what our democracy is about. I don’t know where you got that idea.
The main argument being made here is that under the California Constitution, this amendment was not passed properly. I don’t know what the court is going to rule, but you don’t get to pass laws in our system in any old fashion. You have to follow the rules for passing them as well. I’m unaware of any modern democracy that lets you pass laws without following the rules for passing them.
That is not how I understand Scalia to interpret the Constitution. He is only one justice of course and others have different opinions but I was noting Scalia in particular.
To wit (bolding mine):
And…
See above. Seems to depend on the justice and their judicial philosophy. I agree it is not likely to be the end-all, be-all of a decision but apparently some will use it as an important part of their decisions.
This is a public message board. Only some very few are trained in legal matters here. It is unreasonable to expect Board participants to read up on all relevant case law. Few have access to Westlaw or the like. We do the best we can and read the language as, surprise, laymen would. If the language actually means something else and you (or others) know better as a lawyer then by all means set the record straight.
Expecting me or others, here, to become a legal eagle for the purpose of a thread is not reasonable. Not on this message board.
And clearly even judges dispute “meanings” of words. The point of this board is for us to argue over it for our own entertainment.
The above makes it clear that you don’t just pull out a dictionary. You have to look at how the word is used in context. The wiki article is a gross oversimplification, however, because textualism has a number of other rules about how to interpret things when these basic rules fail. If you were actually interested in learning about textualism, why not start a GQ thread, so you can better understand it?
It appears to me you have a fundamental misunderstanding of Scalia’s textualism. If you would like to hash it out in this thread, we can, but it might be better to start another thread over it.
The decisions that are pertinent are readily available on the internet. I did post a link to Jerry Brown’s brief, which contains all the pertinent arguments (and if jtgain had read it, he would find a lot of information to support his viewpoint. I don’t expect everyone to have detailed legal knowledge. What I object to is people thinking that their lack of knowledge is somehow superior to others who have studied the issue. If either you or jtgain would be interested in learning, why don’t you try asking questions about an issue rather than making pronouncements? I’m sure many dopers would oblige.
Then stop making pronouncements about subjects which you have no desire to learn anything about. I frequently post to threads about topics which I’m not an expert on, and I do so in a polite way in order to learn more about the subject. I don’t go around lecturing people on things which I haven’t studied.
Fine. Entertain yourself. I don’t have to respect anything you say if you are just spouting out nonsense for your own entertainment, though.
I feel the tone of my last post is probably a bit harsh. I dislike jtgain’s posting style, but I shouldn’t automatically transfer that dislike to Whack-a-mole simply because he’s defending him. I will try to revisit this thread in a few days, but it’s Christmas, so I’m outta here.