The Duc Pond

I’ve been really fascinated by law lately (and by comic books, but that’s another post for another day). I’ve always liked Law & Order, A Few Good Men, movies based on John Grisham novels, etc. and I took part in Mock Trial during high school. I was even happy to be called for jury duty, though dismayed when I realized both the prosecutor and the other lawyer were systematically getting rid of anyone who was young or a professional.

The courts are a powerful motivator and activator of social and legal change. But I’m not just enamored of their power, I also like the decorum and formalized procedure. I’m not sure why. Probably because it’s the mark of a civilized society that we’re able to rule ourselves with intellectual argument rather than violence and oppression. Being a lawyer would be so awesome. This power combined with civility (usually) is also why I’d love to be a politician. I’m an idealist at heart and I love to think that I could make the world a better place.

Problem is, people’s ideas of “better” differ wildly. Liberals hate Supreme Court Justices Clarence Thomas and Antonin Scalia. A lot of people make jokes about Thomas ruling in favor of slavery if he could. So when Ben said that Scalia often makes very good arguments my first thought was that despite his seemingly superliberal exterior, it was possible he secretly hated women and gays (this is a joke by the way, in case it doesn’t come across in writing). Then I thought, maybe I should give my old D&D buddy a little more credit.

I used Google to find Supreme Court opinions and such. I should note that I found this weirdly titled site: Cult of Scalia. Maybe Ben should join! Haha!

Anyway, in his dissension on United States v. Virginia et al. (which I think is about allowing women into Virginia Military Institute) Scalia writes:

Much of the Court’s opinion is devoted to deprecating the closed mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed minded they were–as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society’s law trained elite) into our Basic Law.

We know this argument pretty well these days thanks to the Bush administration’s liberal use of the term “activist judges” (which annoys me), but Scalia does make some good points. I still take issue with his and others’ assertions that such rulings “create new rights,” as is often stated. When you determine that an act is unlawful, how is that creating a new right?

Back to Scalia, kind of, it’s like that episode of The West Wing where the President strikes a deal to get his top choice appointed to the Supreme Corut. In order to get a very liberal and very female judge into the Supremes (as chief justice no less), he agrees to appoint a very conservative guy. Toby remarks, “I hate him! …but he’s brilliant.” I wouldn’t call Scalia brilliant by any means, but the point is you can easily respect those you disagree with. I think people should keep that in mind before they fly off the handle in a heated office political debate.

Anyway, back on track, the court is also interesting when you look at the kind of low-level bullshit they have to examine.

Chief Justice William Rehnquist writes in United States v. X-Citement Video:

The critical determination which we must make is whether the term “knowingly” in subsections (1) and (2) modifies the phrase “the use of a minor” in subsections (1)(A) and (2)(A). The most natural grammatical reading, adopted by the Ninth Circuit, suggests that the term “knowingly” modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces. Under this construction, the word “knowingly” would not modify the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. But we do not think this is the end of the matter, both because of anomalies which result from this construction, and because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.

This is (I think) what I was talking about with Ben and Melissa a few months ago about the grammatical structure of the 2nd Amendment. I think that it was President Bartlett (to again quote The West Wing) who said they should rewrite the second amendment because “nobody knows what the hell it means.” This kind of ambiguity can be fatal (sometimes literally, if you believe in stricter gun control)!

Anyway, isn’t this stuff awesome? Part of me wants to dump this computer science stuff and become a laywer. But I love programming so much! But my job will probably be shipped overseas anyway. But maybe through innovation and hard work American programmers can keep jobs here! Or not… Being a lawyer probably won’t happen and I’ll have to live vicariously through those on TV and through Ben.

Anyway, next update will hopefully contain pictures from the Star Trek convention. No more of this boring stuff!