Thursday, July 28, 2005

The Law: More Than Just The Text

Or, The Law: Epilogue.

There's a new U.S. Supreme Court Justice on the horizon, John Roberts. I don't know how much of a fight the Democrats will put up over his nomination. What interests me is that Conservatives seem to accept that he fits the bill of a judge who will perform a strict reading of the Constitution, not some constructionist who will find things like a "right to privacy" tucked away in the text.

It appears that Conservatives - in the U.S. and Canada - want the written law to be strictly held to, as if it is a static text who's meaning is plain to everyone. As if the only relevent factors in a given decision are 1) The evidence and 2) The strict text of the law.

I want to suggest this is basically impossible; since the law is a social activity, other factors will inevitably appear. A judge, in a case where a law or procedure is being challenged, will always engage in several layers of interpretation.

Case in point. Beliefnet has helpfully provided a handful of excerpts from John Roberts' decisions regarding religion in schools. From the Beliefnet description:

In the Lee v. Weisman brief, the government argued that public high schools should be allowed to hold religious ceremonies as part of graduation ceremonies.

From Roberts' decision:

We believe that evidence, including that adduced in Marsh and Lynch, shows that the Framers fully assented to the appearance of non-coercive religious practices in civic life. To focus, as the lower courts have done, on the fact that the specific type of ceremony at issue did not exist when the Constitution was adopted is to blind oneself to the broader truth on which Marsh was founded: that public ceremonial acknowledgments of religion were welcomed by the Framers and are deeply rooted in the Nation's heritage. /17/ Indeed, history suggests that listening to a religious invocation at a civic ceremony was seen not as an establishment of religion by the government but, on the contrary, as an expression of civic tolerance and accommodation to all citizens. . . .

Moreover, we agree that Establishment Clause concerns are triggered not only by coercion in the form of direct, legal compulsion, but also in the form of more indirect social coercion. For instance, we recognize that the special character of the public school setting has heightened this Court's sensitivity to subtle forms of coercion. See, e.g., Engel v. Vitale, 370 U.S. 421, 430-431 (1962). We do not believe, however, that graduation ceremonies pose a risk of coercion. Such ceremonies typically occur but once a year. They are addressed not to children alone but to families as a whole which are, as the Stein court noted, a natural bulwark against any coercion. Indeed, children in the family setting may hear similar invocations and benedictions at inaugurals and other public ceremonies. In short, whatever special concerns about subtle coercion may be present in the classroom setting -- where inculcation is the name of the game -- they do not carry over into the commencement setting, which is more properly understood as a civic ceremony than part of the educational mission.

Roberts is calling upon particular views gleaned from history and sociology - not the text of the law. Roberts isn't "giving a plain text reading" of the Constitution here; he's developing his own understanding of the social circumstances. The text of the law is only one factor, and not even necessarily the deciding factor.

This is something that needs to be remembered when Supreme Court judges tackle other contentious issues. Judges don't simply read the text of the law and hand down decisions; they have to choose between various interpretations of just about every field of human knowledge.

I'm not saying Roberts' reading is incorrect; he actually seems like a reasonable guy. But here we have an obvious example of why the law can be so messy, and why some court decisions can be so inscrutable.

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