The Problem with Ben Bateman's Reasoning:

On Dust in the Light, Ben Bateman writes:

See, this is all agonizingly clear for me because I'm a lawyer by trade. I write legal documents for a living. Legal documents are not tea leaves. They are not the entrails of sacrificed animals. They are expressions of somebody's intent. The reason that you create legal documents is to make your meaning clear and unambiguous. We sign written leases so that landlords won't have to argue with tenants about how much rent is due. That's the whole point! That's what it's all about! You write things down so that people won't come up later with nonsensical claims about what it is that you meant to say.

And earlier Ben wrote:

How Consitutional Law Could Me Save $992 a Month

For example, suppose that my office lease says that I must pay my landlord "$1000 per month." After studying the mental processes of eminent liberal jurists, maybe some month I should try paying only eight dollars. My landlord might object, of course. I'll be ready with brilliant legal insights gleaned from the majorities of Goodridge, Roper, and other recent cases.

"You may think that I have to pay you a thousand dollars every month," I'll explain to the landlord. "But you're just interpreting the lease at its surface level. We should consider how times have changed. We should consider the rent that other tenants pay in other buildings. And most importantly, we should consider alternate understandings of these words."

"For example," I'll go on, "you assume that '$1000' means a thousand dollars. But that's just one restrictive, decimo-centric way of reading it. I prefer to interpret it in a more modern binary mindset, where the number '1000' would be expressed in the old decimal system as '8'. So here's my check for eight dollars."

My landlord might sputter for a while and issue all sorts of threats and profanities. But his most interesting response would be to point out that he believed that '1000' meant a thousand, and had he known that it meant something else he wouldn't have signed the lease. "Too bad," I'll respond sympathetically while suppressing the triumphant sneer that half the US Sup Ct must struggle with daily. "You really should have chosen your words more carefully."

Is that how we should read constitutions, ResIpsa? The people vote on the words, and then the judges twist the words to mean something that the people obviously never intended?

The problem with Ben's reasoning is that legal documents are written with such specificity that often there is no wiggle room; because if you give wiggle room, someone will try to wiggle. And if they are successful, then the next time the document is drafted, it will be even more specific.

That's why his $1,000 example is so terribly flawed. No reasonable person could argue over the meaning of $1,000, just as no reasonable person could argue over the meaning of the Constitution that "[N]either shall any Person be eligible to that [the Executive] Office who shall not have attained to the Age of thirty five Years...."

The problem is that the phrases over which we argue are all written in broad generalities, and the Framers left behind no "book" of specific intent that tells us exactly how the norm is to be applied vis-a-vis every single thinkable specific factual scenario.

In European "civil code" nations, they attempt to do this with their legal codes and the result is hundreds of thousands of pages in civil codes. In common law nations like America our laws tend to be more general and we expect Courts to fill in the many of the specific gaps, with the result being hundreds of thousands of pages of appellate case law.

For instance I teach copyright law. There is an exception written into this democratically enacted federal copyright statute known as the "fair use" exception. In short, you can use someone else's copyrighted work as long as it qualifies as a "fair use." So what exactly does the statute say?

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work...is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

That's it. So answer me these questions: If I own a VCR, and I copy television shows, keeping in mind TV shows are copyrighted material and "copying" is one of the rights of copyright holders, is that a fair use (Supreme Court said yes). Or what if I want to copy an article from Time Magazine and distribute it to my students (the first time is most likely a fair use, but if you distribute the same article the next semester, it may not be. A court has never ruled, but copyright guidelines tell you to ask permission after the first time). Or what if I want to take excerpts from some books and turn them into a course-packet for my students (it depends, but in most circumstances, you'd have to secure permission and pay royalties, according to two federal court decisions, not the Supreme Court). Or what if I am a corporation like Texaco and I do scientific research. Can I just subscribe to one copy of each journal I want and let my scientists photocopy that one copy among themselves? (A federal court said no, each scientist had to buy their own copy of the same journal).

What's the point of all of this? We have a very general statute, and yet many specific-fact questions arise under that statute? Who fills in the gaps? Courts do (sometimes administrative agencies help them out. But even there many "originalists" question the constitutionality of such agencies). This is not to say that the courts just "make things up." No, the fair use test, even though it is written in a very broad manner, points us in certain directions with its four part test. But it hardly answers any specific questions. A lawyer drafting a contract wouldn't dare leave such gaps by writing in such general terms. She'd be sued for malpractice.

That Constitutions tend to be such relatively short documents, with many provisions written in broad generalities, like "cruel and unusual punishment," or "the freedom of speech," or "privileges or immunities" signifies a specific intent on the part of the Framers to construct a document with "built in flexibility" whose meaning could change over time.

Back to the $1,000 example. Here's a more reasonable one: Let's say a landowner rents out a huge parcel of land to a community for 200 years. The landowner is to charge the community a "reasonable" amount from year-to-year.

So 125 years later, what's a "reasonable" amount? That's what Constitutional interpretation is like.