How you get there still matters: After Obergfell

On the role of legal interpretation, from the protein wisdom archives, 2015

Regardless of where you stand on same sex marriage, Obama Care, or the very idea of “unintended discrimination,” the process of how we interpret and apply law — and what counts as liberty, in the sense it was intended by the Founders and Framers and to the extent it exists in a representative republic — is crucial to the protection of the individual and the frustration of the State, whose natural impulse is to forever increase it’s own power. It should be of no debate that a country forged in revolution against a faraway King and whose political and social ideas are expressed in the Declaration of Independence, was born of a distrust of centralized authority and a desire for liberty, which was always defined by negative rights. Separation of powers was a key element to the genius of our Constitution, an un-compromisable check on the coalescing of power around a single unified entity. And yet what we have today is an Executive that makes law; a Legislative branch that makes law; an administrative state that makes law; and a SCOTUS that makes law.

That’s about as unified as one centralized federal power can get.

Proper interpretation of law — and adherence to the process, when it is joined with a clear idea of what it is we think we’re doing when we interpret — is one of the foremost safeguards of liberty, in that it assures the stability of law and in so doing allows for equality before it. Without a fixed and repeatable process, the rule of law is surrendered to the rule of caprice, the rule of whim, the bald assertion of power — all carefully camouflaged as legitimate “interpretation.” It is not: in the context of legal hermeneutics, certain conventions apply. First, the court, in order to even begin the process of interpretation, has to acknowledge that the text presented them was intended as a text written to function as law; this seems fairly self-evident, but too many ideas of interpretive theory would try to kill off the author(s) in order to claim power of the meaning of a text for themselves. Second, because we are dealing with law (and not, say, Joyce’s Ulysses), legal convention requires that the texts produced by lawmakers and handed over to courts for application and interpretation must be as clear as possible in their practical expressions. That is to say, because we want laws to be understood, they need be written in such a way that the intent behind them is as clear and unambiguous as it can be made to be. This is how convention serves intention, and why we use convention as one of the tools to determine intent. In law, that convention is crucial: because the force of law carries with it the potential for fines, imprisonment, and even death in some instances, we insist that it be clear and easily determinable. Bad law that isn’t clear should be returned to the legislative branch for revision.

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Unfortunately, we now have courts that believe it is their job to rewrite the bad text of the legislature to comport with what they claim is legislative intent. But if a court is aware of a legislative intent that doesn’t appear in the text of the law in any comprehensible way, they aren’t “interpreting” it at all: