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OT: Law is not Code

DAxelrod on 2006-09-12T22:29:34

I've read several times now that computer geeks don't usually take the same approach to law as, say, lawyers. For example Eben Moglen characterized this as "the hacker belief that laws are form of code that are executed without errors or ambiguities." EDIT: Alias rightly points out that this is a strawman. I think a statement closer to what I'm getting at might be "the hacker belief that laws are a form of code that are intended to be executed without errors or ambiguities". End Edit

I'm starting to see why that might be the case.

Something that fascinates me is how the US Supreme Court has bootstrapped itself into its current role. (Basically, for those unfamiliar, a lot of what the US Supreme Court does is issue rulings on whether various laws are constitutional or not (unconstitutional laws are nullified), but the Constitution does not explicitly give the Court this power.)

It ocurred to me that the only reason the Court uses precendent in its decisions is precedent.

How's that for circular logic?

Yes, I am aware that if they completely decided to drop precedent, it would most likely cause other branches of the government and citizens to take actions that would undermine the court. That's beside the point here.

Strawman argument..

Alias on 2006-09-13T01:15:12

"the hacker belief that laws are form of code that are executed without errors or ambiguities."

I think that's a false argument. The law is a form of code, it's just that it is executed via non-deterministic wetware processors and subject to the vaguaries of any other interpreted language :)

But seriously, I doubt any "hackers" think the law is "without errors or ambiguities". That doesn't mean it still doesn't act like code.

Re:Strawman argument..

DAxelrod on 2006-09-13T01:52:05

Hrm...

You're right, that may be a bad example.

However, law is based neither on formal logic, nor reproducability, which is certainly different than most systems of rules I'm used to thinking about.

The thing is, it doesn't even try to be unambiguous. It's slippery by design. Which may make it optimized for the wetware that runs it. :)

seems like code to me

jmm on 2006-09-13T07:38:27

It has bugs, both obvious and subtle.

Users have different ideas about how it should work.

It is constantly becoming out of date as the environment around it changes.

There's also continual ongoing maintenance; second system syndrome (the all-singin, all-dancing replacement of a simple original law).

The agenda is controlled by the people with the money, which doesn't always correlate well with the people with the necessary knowledge or with an impartial viewpoint.

Oh, but it is code.

Abigail on 2006-09-13T09:56:45

Except that it's run on an architecture far more complex than the puny Von Neumann architectures hackers typically code for.

Law is run by a couple of billions of non-deterministic processors, each capable of running a myriad of threads. Processors that never reboot.

No explicit authority?

pudge on 2006-09-14T15:55:31

I am not sure how you reconcile this:
a lot of what the US Supreme Court does is issue rulings on whether various laws are constitutional or not (unconstitutional laws are nullified), but the Constitution does not explicitly give the Court this power.

with this:
The judicial power [of the Supreme Court] shall extend to all cases, in law and equity, arising under this Constitution

Re:No explicit authority?

DAxelrod on 2006-09-14T18:06:38

Quite easily. :)

It does not explicitly say anything about nullifying laws. It says they can decide the outcome of specific cases, but it says nothing about nullifying an entire law based on its constitutionality.

Or maybe I'm reading it differently than you.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority...

If you read that sentence it as saying "The judicial power shall extend to " the following list "all cases...", "the laws of the United States", and " treaties made..." I guess I could see where you're coming from. I tend to read that instead as saying "The Judicial power shall extend to all cases arising under ... the laws of the United States".

Still, even with the former reading, what exactly does "judicial power" over "laws" mean? It seems obvious that it would include interpretations of the wording of laws. But does it include the ability to decide that some laws are inconsistent with others?

I have to dig up some sources on this, but if you're one of those Original Intent people, the framers basically left the constitution vague about nullifying laws on purpose because they couldn't come to an agreement on whether to put it in or not. Ah, design decisions. :)

Re:No explicit authority?

pudge on 2006-09-14T18:39:41

Quite easily. :)

I don't think so.

It does not explicitly say anything about nullifying laws.

It's absolutely implicit.

It says they can decide the outcome of specific cases, but it says nothing about nullifying an entire law based on its constitutionality.

I don't understand how this is interesting at all. If someone sues over whether a law is legal/Constitutional, that obviously falls under the Supreme Court's mandate. There is nothing excluding that (either explicitly or implicitly), and it is a "case arising under the Constitution," so it is therefore included in its explicit authority.

If you read that sentence it as saying "The judicial power shall extend to " the following list "all cases...", "the laws of the United States", and " treaties made..." I guess I could see where you're coming from. I tend to read that instead as saying "The Judicial power shall extend to all cases arising under ... the laws of the United States".

You're reading it wrong. :-) As Federalist 78 says:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.


Judicial review was understood as a part of the package, although -- as the following discussion in #78 makes clear -- our courts today have gone far beyond mere review and have actually taken the position of superiority to the legislature, which it never should have had.

Still, even with the former reading, what exactly does "judicial power" over "laws" mean? It seems obvious that it would include interpretations of the wording of laws. But does it include the ability to decide that some laws are inconsistent with others?

No, I don't think so. I do think it has the authority to decide cases where two statutes are conflicting, and this might have the subordinate result of a de facto ruling that one statute is above another; that's unavoidable. But they don't have the right to say one law is illegal because it conflicts with another (unless, of course, one law literally is higher than the other, such as in the case of the Constitution vs. legislated statute).

I have to dig up some sources on this, but if you're one of those Original Intent people, the framers basically left the constitution vague about nullifying laws on purpose because they couldn't come to an agreement on whether to put it in or not. Ah, design decisions. :)

No, I don't agree with that at all. As #78 shows (e.g., "Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power") there was widespread agreement that the (at the time) proposed Constitution granted the power of nullification to the Supreme Court. The debate was primarily over whether this was wise, not whether the Constitution granted it.

Re:No explicit authority?

DAxelrod on 2006-09-14T21:01:56

First of all, let me make clear that my argument is not that the Court overstepped their authority in declaring that they could decide the constitutionality of laws. (And whether or not they've overstepped their authority today is an entirely different question.)

It's absolutely implicit.

How is anything implicit absolutely so? Are you asserting that it logically follows from that sentence?

It says they can decide the outcome of specific cases, but it says nothing about nullifying an entire law based on its constitutionality.

I don't understand how this is interesting at all.

Because we're talking about whether the Supreme Court has the power to nullify a law on the basis that that law is inconsistent with the constitution.

If someone sues over whether a law is legal/Constitutional, that obviously falls under the Supreme Court's mandate. There is nothing excluding that (either explicitly or implicitly), and it is a "case arising under the Constitution," so it is therefore included in its explicit authority.

There is nothing excluding that, but there is nothing explicitly including that either. And wanting to challenge a law as inconsistent to the constitution is not in itself the basis of a lawsuit that the Court will hear. (Although rules about standing like this have been created by the Supreme Court themselves, so let's leave this aside for a second.)

My argument is really that the fact that the Supreme Court can decide the constitutionality of laws was established as a decision of the court and that the Constitution does not provide a clear model of deciding when the court should uphold its previous decisions or not.

Re:No explicit authority?

pudge on 2006-09-14T21:15:35

How is anything implicit absolutely so? Are you asserting that it logically follows from that sentence?

Yes, precisely.

Because we're talking about whether the Supreme Court has the power to nullify a law on the basis that that law is inconsistent with the constitution.

Right, but the conclusion is necessarily reached from the language. Whether it is explicitly stated is not relevant.

There is nothing excluding that, but there is nothing explicitly including that either.

Then it is therefore included. ALL CASES arising under the Constitution, it says. So unless it is excluded, it is included, since obviously a citizen suing the legislature for overstepping its Constitutional limits is a case arising under the Constitution.

And again, Hamilton is on my side, so you have to be far more convincing than saying you simply think it is not implied, because he said it was. :-)

And wanting to challenge a law as inconsistent to the constitution is not in itself the basis of a lawsuit that the Court will hear.

Oh, yes, but that's beside the point. The Court does not hear such cases. Consider the recent Pledge case, where Newdow's suit was thrown out because he didn't have legal standing. That he thought the law was unconstitutional was insufficient.

My argument is really that the fact that the Supreme Court can decide the constitutionality of laws was established as a decision of the court

And my argument -- clearly backed up by Hamilton -- is that you are wrong, that this is a part of the Constitution.

and that the Constitution does not provide a clear model of deciding when the court should uphold its previous decisions or not.

This, I agree with. And I am glad it does not.

Re:No explicit authority?

DAxelrod on 2006-09-14T21:24:44

Right, but the conclusion is necessarily reached from the language. Whether it is explicitly stated is not relevant.

I tend to think that reaching conclusions is still a form of interpretation.

And again, Hamilton is on my side, so you have to be far more convincing than saying you simply think it is not implied, because he said it was. :-)

Aha! You're appealing to Hamilton. Which is a fine thing to do. But it is an application of a particular framework of interpretation.

and that the Constitution does not provide a clear model of deciding when the court should uphold its previous decisions or not.

This, I agree with. And I am glad it does not.

I assert that because constitutionality determination is a previous decision of the court, it will not neccessarily always be upheld. I guess you're arguing that it doesn't need to be, because it's the only reasonable conclusion one could get.

Re:No explicit authority?

pudge on 2006-09-14T21:38:44

I tend to think that reaching conclusions is still a form of interpretation.

Given the laws of integers and base 10 and addition, is it an "interpretation" that 2+2=4?

I think the language gives absolutely no room for any other interpretation.

Aha! You're appealing to Hamilton. Which is a fine thing to do. But it is an application of a particular framework of interpretation.

Sure, though you are the one who brought up original intent.

I assert that because constitutionality determination is a previous decision of the court, it will not neccessarily always be upheld. I guess you're arguing that it doesn't need to be, because it's the only reasonable conclusion one could get.

I assert that it was true -- and was well-understood at the time -- that the power of judicial review belonged to the Court long before Marbury v. Madison, that this was only the first example of its use (recall also that Justice Marshall was personally trained in proper Constitutional interpretation by Hamilton's colleague in the writing of the Federalist Papers, James Madison).

I say nothing about whether this will always be upheld. It *should* always be upheld, but the Court does not always follow the Constitution. And even conservative originalists admit to this. Judge Bork wrote:
Almost all justices have agreed with Felix Frankfurter's observation that "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." The obvious exception, of course, is that the nation has developed in ways that make some returns to original principles impossible. No judge of whatever disposition would, pace Senator Kennedy, plunge the nation into chaos by dismantling government as it exists today.

That is, he is saying, even though the ultimate touchstone of Constitutionality is the Constitution itself, and even though much of government today is quite clearly unconstitutional (such as a federal minimum wage) ... they still wouldn't overturn it, because the consequences are too great.

So whether our Supreme Court will continue with judicial review in the future, I won't guess. But I will assert, sans evidence to the contrary, that it was a part of the Constitution when it was written, debated, and ratified, long before Marshall asserted it in Marbury v. Madison.

Re:No explicit authority? Original Intent?

DAxelrod on 2006-09-14T22:03:02

you are the one who brought up original intent.

I was foolish to bring up original intent. It appears my source was nothing more than a textbook which has a section that presents some arguments for and against Judicial Review. An argument in support says

The Framers left juidical review out of the Constitution because they did not want to heighten controversy over Article III review, not because they opposed the practice.(p.59)
and the argument against that point is
The participants at the Constitutional Convention rejected the proposed Council of Revision, which would have enabled Supreme Court justices and the president to veto legislative acts.(p.59)

The textbook then notes at the end of that section that "this framework" was adopted from "David Adamany, "The Supreme Court," in The American Courts: A Critical Assessment, ed. John B. Gates and Charles A. Johnson (Washington DC: CQ Press, 1991)".

Re:No explicit authority? Original Intent?

DAxelrod on 2006-09-14T22:15:50

Upon more research into the Council of Revision, I found this debate but most of it seems to be about Executive plus Judicial review.

Re:No explicit authority?

DAxelrod on 2006-09-14T22:08:33

Given the laws of integers and base 10 and addition, is it an "interpretation" that 2+2=4?

Possibly. 2+2=4 is not axiomatic. However, keep in mind that English is a whole lot less precise. :)

I think the language gives absolutely no room for any other interpretation.

And I assert that the Supreme Court is required to actually make that interpretation.

Re:No explicit authority?

DAxelrod on 2006-09-14T21:07:27

I was going to say that the fact that reasonable people can disagree on this point means we need a body to interperet the language of the constution to settle the disagreement. A body like the Supreme Court.

Of course, then you could legitimately challenge the premise that I'm a reasonable person. (Which makes sense, if I go around making incorrect claims all the time, who's to say I'm reasonable?)

Then I'd have to point out people who disagreed with Marshall's decision in Marbury vs. Madison and you could claim that none of those people were reasonable, and we would quickly get mired in hard-to-defend ad hominem attacks. :)

Re:No explicit authority?

pudge on 2006-09-14T21:19:37

You're wrong because you're stupid!

Re:No explicit authority?

DAxelrod on 2006-09-14T21:25:42

And you're right because I'm stupid. :)

Re:No explicit authority?

pudge on 2006-09-14T21:24:29

Sorry, couldn't resist that last one. :-) Still, I don't think there's significant room for disagreement on this. However, I would change my mind, if you produced contemporaneous writings (such as Anti-Federalist Papers?) that showed people who disagreed with it.

Speaking of Marbury v. Madison, Federalist 78 is also cited there, as an example of Hamilton laying out the concept of judicial review as being a part of the proposed Constitution, and also quotes John Yoo saying, "[N]o scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing."

So, again, if you can show me any evidence that anyone at the time thought it did NOT authorize judicial review, I'll reconsider.

Re:No explicit authority?

DAxelrod on 2006-09-14T22:19:35

Would transcripts of the debate of the Constitutional Convention be sufficient? Or would you only accept an interpretation after the Constitution was finished being drafted?

Re:No explicit authority?

pudge on 2006-09-14T23:45:36

Any contemporary who thought that the proposed Constitution (the one Hamilton wrote about, that was ratified) did not grant the power to overturn legislation that conflicted with the Constitution (should it be as part of a properly brought case before the court etc.).