LEGISLATION AND THE COURTS

I am in the middle of reading a book by Stephen Breyer, called Reading the Constitution, and it triggered a thought about the relationship between legislation and the courts. The thought is: Why don’t the two groups coordinate their work so that laws can be updated on a regular basis? Let me develop that argument.

      I have often thought that many legislators, and consequent legislation, never think about how a piece of legislation could be actually implemented or, for that matter, whether it would even be possible to implement it, and by whom. To quote the joke often told about Werner Von Braun, the German scientist who developed the “V” weapons for Hitler and masterminded the U.S. rocket development in the US after the war, “Once the rockets are up, who cares where they come down, that’s not my department, said Werner von Braun”. Similarly, legislators tend to think it’s not their job to worry about the implementation of what they produce as laws – that’s someone else’s problem. The result is many laws and regulations that are impossible to implement and even less likely to be enforced. I’m sure they mean well, although the cynic in me says it is all about the promotional impact on their next campaign for re-election that actually drives their legislative zeal.

      These comments relate to Stephen Breyer’s book in that the courts, and ultimately the Supreme Court, have to interpret those laws as they relate to real lawsuits filed today. Reading Breyer’s book made me realize that interpreting what legislators wrote in recent laws is hard enough, but interpreting what they wrote many years ago when language nuances and the realities of everyday life were often quite different from those that exist currently, is a huge challenge. Breyer divides his analysis into two groups within the Supreme Court and, by inference, into other lower courts; the two groups are (1) those who believe the laws should be interpreted and followed based on the exact wording in the original document and (2) those who believe they should be interpreted in light of today’s reality – he calls the two approaches “textualism” and “pragmatism”. There are obviously problems with each approach; (1) how can we know what the founding fathers (for example) actually meant by the exact words they put in the Constitution when we are reading them 250 years later and (2) how could they possibly have been able to understand our world today. I am using an extreme example, but that same concept applies to legislation that is a hundred, fifty, or even twenty years old.

      In this context, when the Constitution talks about the right to bear arms, that was written in an era when it took several minutes to reload a rifle. Today’s automatic weapons that can fire multiple rounds a second, a concept that the writers of the Constitution couldn’t possibly have understood. I should add here that they actually wrote that the right to bear arms was a right to be exercised only as part of a state militia. They did not give that right to any one person on an individual basis – the NRA, of course, has twisted this reality.

      The other element in this scenario that I think would need to be addressed is the deliberately vague approach to creating legislation. Many legislators seem to forget, and this happens probably more at the state level than it does at the federal level, that what they write applies to everyone and everything within the law’s jurisdiction, and not just for the pet project for which they are writing it. This has many unfortunate consequences and can make people’s lives far more complicated at times than they need to be. My cynical nature tells me that a significant reason legislators write vague laws is they are creating “jobs for the boys”, since most legislators are lawyers themselves.

      OK, enough background and cynical comments. What is my idea about coordination between legislation and the courts?

      What if a formal feedback system was created whereby the court system could provide suggestions to the legislature for revising legislation that is outdated, vague, unenforceable, or even stupid based on their experience of trying to interpret that legislation in real court cases. Legislatures could even set up new departments/divisions that would receive such suggestions and place suggested revisions before today’s legislatures. Such a system would not only provide the general public with more clarity, but would streamline the legal process and possibly cut down on the huge backlog of cases at all levels.

      One downside would be less work for lawyers but, since 75%, roughly, of the world’s lawyers operate in the U.S., that wouldn’t be such a bad idea. 

      This idea certainly needs developing further but, it seems to me to be a sensible approach to what can only be described as a somewhat arbitrary process of decision-making at all judicial levels based on the judges’ belief in pragmatism or textualism.