Originally Posted by bumpy
Ah, I think you have confused me with James Brown.
What a horrible fate, Bumpy! I wouldn't wish that on anyone.
I've been gone for a bit being abused by my doctor, and I see that once again my mouth got ahead of my brain, for which I do apologize. Ann says that I made my living by the sweat of my tongue for too many years. The grossly misnamed USA Patriot Act is such a hot key for me that once again I jumped in without troubling myself to read your posting with care. Mea culpa.
I will try to make amends, unavoidably at some length.
After looking at this thread as it has developed in my absence it would appear to me that several of our gentle readers are struggling with a legal issue the courts have struggled with since the very beginning of our country with its three branches of government, each owed some, but not too much, deference from the other. The pigeonhole a lawyer would stuff the issue in might be labeled "Legislative Intent."
Let us pose a situation where Branch A, the legislature, enacts a law saying, for example, "It shall be a crime to let domestic pets run free," and at the same time publishes a record of legislative hearings making it abundantly clear that the intention of the legislature was to prevent persons from letting dogs run free -- only dogs.
Then Branch B, the executive, acting through its police department, arrests Mary, one of our TCSers, for permitting her cat to run free. This, in our case, fits squarely within the words of the legislative enactment -- she has without any doubt "let her domestic pet run free."
Then Branch C, the judiciary, enters the picture when Mary's defense lawyer says to the judge, "They can't do this, Your Honor. The record of the legislative hearings, the background showing precisely why this law was enacted, the 'legislative intent,' makes it abundantly clear that Mary is innocent of doing what the legislature intended to prohibit."
And here we see the dilemma faced by the court. On the one hand Mary is as guilty as can be if one reads the law as enacted without looking behind those words. On the other hand, however, the legislative history of the law discloses without the slightest doubt that the legislature never intended to make what Mary did a criminal act.
Does the court -- can the court -- look behind the clear words of the law in this case to see what the legislature really intended?
And there is the question. It is not always an easy question, and our courts go both ways, depending on the precise situation faced at the time. In a particular case would a severe and unacceptable injustice result? Of course the court must give due deference to the legislature, but what does this mean? Must it give due deference to the strict words used in the law, or must it give due deference to the real intention of the legislature? The courts know, as we all do, that legislatures do dumb things from time to time. They inartfully, or even carelessly, word a law which makes it mean something quite different than what was intended. Even worse, they sometimes enact a law without ever having read the words -- relying on some staffer to tell them what it is they are doing. Occasionally we wonder whether they can read at all.
Sometimes the courts will send Mary to jail, if only to send a message to the legislature: "Get your act together, and stop leaving these messes for us to clean up." Sometimes the courts will invent an ambiguity in the law which really isn't there, and then look behind the law to its history in order to determine "what the legislature really meant." Sometimes they will interpret a law which is really very clear in order to make it mean something quite different than the strict wording of the law.
In Mary's case, for example, Mary is accused of permitting "a domestic pet," her charming little kitty cat, Samantha, to run free. Now Judge Amy is a cat lover, and she has had cats all her life. The judge knows full well that it is absurd to think that you can "domesticate" a cat. The expression "domesticated cat" is an oxymoron. Therefore, the judge sends Mary home to care for Samantha, ruling that even within the strict words of the law Mary is not guilty -- she has not let a domestic pet run free. And the judge just read the guts out of the statute, without even having to mention "legislative history." Recognize, though, that her only other option was to send Mary to jail, leaving nobody to care for Samantha.
Once again, I apologize for carelessly confusing things -- that was unforgiveable.
All the very best to all our friends,