December 15, 2003

Intent is 9/10ths of the Law

Once upon a time in the Land of Make-Believe there was a small band of thieves that stalked a public park wearing KISS make-up. They would jump out of the bushes and snatch the purses of old ladies, take the watches from yuppie men, and the candy necklesses from little boys and girls.
"I have no idea who they were or what they look like," each victim would tell the police. "They were wearing frickin' KISS make-up!"

The local citizenry was outraged that common criminals would conceal their facial features and make it impossible to indentify them in a police line-up.
The town's Council passed an ordinance making it unlawful to wear greasepaint, or any mask, to conceal one's true identity while on public property.
The townfolk were very pleased with this new law. Until Halloween came around.

"Oh, no! We've killed Halloween!" one mother of four cried to the Mayor as she consoled her sobbing children in the Town Hall, "and the Council is out of session until January! Whatever will we do?"

"Go to the Courts!" one brave high school student roared.

"That ain't gonna work," said the local florist. "The law is plainly written: 'No masks in a public place'. I'm afraid there'll be no trick-or-treating this year."

But the moms and dads of the Land of Make-Believe took the case to court anyway...and won.
The Justices of the Court wrote this very brief opinion:

This court finds that the statute at issue in this case does not prevent the celebration, observance or practice of Halloween; nor of any festivities heretofore traditional and appropriate including, but not limited to: individual mask-wearing, trick-or-treating, bobbing for apples or any other similar produce, assembled masquerade parties, keggers or any other activities associated with Halloween at time previous to the enactment of said statute.

Why not?
Because the Court looked at the Legislative intent of the statute and found that it had been originally intended to stop thieves from hiding their faces during the commission of a crime. Since there was never any intent by the Council to interfere with the traditions of Halloween, the Court ruled (since the Council was out of session and could not clarify the law) that Halloween could go forward.

Determining the "legislative intent" of a law is one of the major tools of settling case law. In order to adjudicate the Law, a Court must know what the People -- via their elected legislators -- have intended that Law to be.

The Supreme Court of Massachussetts has recently ruled that the right of homosexual men and women to marry within their own gender is guaranteed by the Massachussetts state Constitution. They argue that to forbid marriage on the grounds of sexual identity is discrimination under the Law. But is it?
From Merriam-Webster's online dictionary:

mar┬Ěriage ('mar-ij) noun 1 a : the state of being married b : the mutual relation of husband and wife : wedlock c : the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family. 2 : an act of marrying or the rite by which the married status is effected; especially : the wedding ceremony and attendant festivities or formalities. 3 : an intimate or close union
The word "marriage" meant to John Adams -- author of the Massachussetts Constitution -- just that: a legal union between a man and a woman. The fact that recent cultural shifts (and the resulting etymology) has resulted in our use of such terms as "same-sex marriage" is irrelevant to the Law. The intent of the Law's authors and ratifyers -- the People -- trump any foggy notions of what any altered usage of the language might, to the selectively undereducated, imply.

What the Massachussetts Supreme Court has done is to take the language of the People as it was (and intended to be) understood, and translated it into the modern colloquial usage.
Whether or not you or I support or oppose the legalization of gay marriage or civil unions isn't at issue. (I happen to support them.) The issue is: Who, in a republic of laws, not tyranny, writes the Law?

Judicial tyranny is the fine art of changing existing Law by redefining the words that already make up that Law. The rule of Whim -- of a few black-robed government appointees over the People -- is the most dangerous and insidious of the ways in which the rule of the People may be undermined because it imposes upon them a Law which they did not write and to which they have not consented.

Oh, and that Gene Simmons guy? That was me. (hey, Tongue is 9/10ths of the Kiss y'know...)

Posted by Tuning Spork at December 15, 2003 10:23 PM
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