Posts Tagged ‘legislative intent’
May 12th, 2010 at 2:37 pm
Elena Kagan Promotes Legal Fiction

No, President Barack Obama’s Supreme Court nominee is not moonlighting as a shill for the latest John Grisham novel.  Instead, a law review article of hers peddles the notion that federal courts should try to divine a government’s “intent” when deciding whether a regulation on speech is constitutional.

According to CSNEWS:

In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.

In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.

You’d probably need a complex framework to figure out the single intent of a law that results from a process including hundreds of people, all with different backgrounds, educational levels, and points of view.  Indeed, the exercise is a legal fiction whose use stretches back to the New Deal Court where justices poured over legislative histories, committee reports, and floor statements in the vain attempt to arrive at one, definitive purpose.  Discovery of that purpose enabled the enlightened justice to then judge whether that purpose was proper.

You can see the potential for abuse.  If judges signal they will go beyond the plain text of a law to discern its intent, then members of Congress and the President will do everything they can to shade the law’s meaning their way.  Vapid floor statements, detailed presidential signing statements, even carefully worded statements of purpose in sub-committee reports suddenly become more important than the actual words that everyone agreed to.

And who gets to pick the “right” document for finding the government’s intent?  None other than an unelected, un-consulted judge.  Nice work if you can get it.  We’ll see if Elena Kagan does.