Thursday, February 16, 2006
The Myth of the Rule of Law
Stop! Before reading this Article, please take the following quiz.
The First Amendment to the Constitution of the United States provides, in part:
“Congress shall make no law … abridging the freedom of speech, or of the press; … .” (2)
On the basis of your personal understanding of this sentence's meaning (not your knowledge of constitutional law), please indicate whether you believe the following sentences to be true or false.
_____ 1) In time of war, a federal statute may be passed prohibiting citizens from revealing military secrets to the enemy.
_____ 2) The President may issue an executive order prohibiting public criticism of his administration.
_____ 3) Congress may pass a law prohibiting museums from exhibiting photographs and paintings depicting homosexual activity.
_____ 4) A federal statute may be passed prohibiting a citizen from falsely shouting "fire" in a crowded theater.
_____ 5) Congress may pass a law prohibiting dancing to rock and roll music.
_____ 6) The Internal Revenue Service may issue a regulation prohibiting the publication of a book explaining how to cheat on your taxes and get away with it.
_____ 7) Congress may pass a statute prohibiting flag burning.
Thank you. You may now read on.
A long and thoughtful article on interpretations of law and while indeterminate laws aren't necessarily bad. I'm not sure if I agree with the author, but I haven't fully digested the full article yet. But it is thought provoking.
And while I quote below the answers the author gives to the questions quoted above, you should really read the article to get an understanding of why the author answered the questions above as he did.
Unless your responses were: 1) False, 2) True, 3) True, 4) False, 5) True, 6) True, and 7) True, you chose to interpret at least one of the words “Congress,” “no,” “law,” “speech,” and “press” in what can only be described as something other than its ordinary sense. Why did you do this? Were your responses based on the “plain meaning” of the words or on certain normative beliefs you hold about the extent to which the federal government should be allowed to interfere with citizens' expressive activities? Were your responses objective and neutral or were they influenced by your “politics”?
I chose this portion of the First Amendment for my example because it contains the clearest, most definite legal language of which I am aware. If a provision as clearly drafted as this may be subjected to political interpretation, what legal provision may not be? But this explains why the legal system cannot be reformed to consist of a body of definite rules yielding unique, objectively verifiable resolutions of cases. What a legal rule means is always determined by the political assumptions of the person applying it. (24)