THE DEFENSE NEVER RESTS
THE INTENT OF THE
DRAFTER SIDES WITH SCALIA WHEN THEY ARE CORRECT.
Justice Scalia fashions the law as it fits... to his liking. The
New York times reports on a recent case wherein Justice Scalia fashions his
view of interpreting text, his view of using legislative discussion as a
tool of guidance as to what the legislation means.
“Do I have to defer to John Paul Stevens because he’s the author?” Justice
Scalia asked. “ ‘Oh, John, you wrote Chevron. You must know what it means.’
Of course not! John doesn’t know what it means! Once you let loose the
judicial opinion, John, it has a life of its own, and it means what it
says.” “Now why should legislation be any different?” Justice Scalia added.
“Once Congress floats that text out there, it has its own life. It means
what it means. It means what it says.” http://www.nytimes.com/2009/05/12/us/12bar.html?hp
It means what "it" says. Well we know that the text doesn’t say anything.
The text is read and interpreted. Basically Scalia is saying
Stevens/Legislator don’t tell me what you meant when you wrote it. “It means
what it says”. Which translates to ‘It’ means what - I - say it means and I
wont tolerate a trump card like the original intent of the drafter....
Justice Stevens points this out:
The court’s decision in Federal Communications Commission v. Fox
Television Stations , the “fleeting expletives” case, was issued four days
later. In it, Justice Stevens accused Justice Scalia of practicing the
opposite of what he preached by using “isolated statements by members of a
Congressional oversight subcommittee” as evidence of Congressional intent.
Justice Scalia’s majority opinion, Justice Stevens said, “would make even
the most ardent student of legislative history blush.” Justice Scalia
responded, of course. He said he was using the statements to show not the
intent of Congress but the influence Congress exerted over agencies. “Surely
Justice Stevens knows this,” Justice Scalia wrote. http://www.nytimes.com/2009/05/12/us/12bar.html?hp
The former paragraph bears out the "it says what it says" equating to it
says what Scalia means it says as long as what "it" says agrees with Scalia.
We don’t use legislative intent to help us understand “IT” (the statute). We
use legislative dialogue to assist in the goal of effectuating the
legislatures intent as is the stated policy of the United States Supreme
Court. The province of legislation is in the hands of the elected leaders as
borne out in Marbury v. Madison. In order to maintain this stated goal their
discussion of the very act which was voted to law becomes essential to a
full understanding of the statute at issue or to help any areas which have
come under debate.
Trial lawyers utilize the notion of “if the law is not on your side - argue
facts and if the facts aren’t on your side - argue the law”. At the
beginning of the dispute between citizens such a methodology is appropriate.
Once the arena becomes solely the regulatory or the legal one using what
helps you win ends. Consistency is a necessary quality of just proceedings.
Appellate courts deciding the law and Supreme Courts deciding policy cant
shop for the source of a winning argument. It is not a competition but a
methodology of maintaining rules by which disputes are decided by.
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