From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: Making law (was: Shouting "Movie!" at a Fire Station)
Organization: University of Colorado, Boulder
Date: Fri, 22 Jan 1993 02:41:52 GMT

In article <1993Jan20.201107.16448@midway.uchicago.edu> thf2@midway.uchicago.edu writes:
>>However, the interpertation is constrained by the initial law.

>Which is why you'll never see someone interpret "The President must
>be 35 years of age" to mean "The President must be reasonably mature."

>Quick, tell me what "due process" means.

Since the phrase is vague, there isn't a exact meaning. However, the
term, and the context in which it is used (i.e. the initial law) still
constrain the meaning: There must be _some_ legal standardized, legal
proceedures which the government must follow, before taking away
someone's life, liberty or property. From context, these proceedures
protect the individual from arbitrary or unfair punishment. The 
Amendment forbids the government from denying these protections,
so no agency of the governemnt can decrease them. Therefore,
"due process" is constrained to mean, "those legal proceedure protecting
individuals from arbitrary or unfair punishment which were commonly
practiced in the past." That isn't much of a definition, but you
have to agree that even so vauge a phrase is, to some extent, 
constrained.

>>...That is, I'm objecting
>>to "interpertations" which alter, as opposed to adding detail and
>>specificity to, laws.

>I don't think anyone here would disagree with that basic assertion.
>You seem to be using it to implicate decisions and philosophies that
>aren't really implicated by it.

Currently, the commerce clause of Article One, Section Eight
(perhaps the worst victim of modern interpertations), is 
"interperted" to allow the federal government to regulate anything,
in any way, so long as there is even the most infinitesimal 
connection to interstate commerce (to the extent that _everything_
falls into this catagory.) I can safely say this goes _far_
beyond "adding detail and specificity to law."

>The problem here is your expansive definition of the word "alter."
>Anything that adds detail and specificity to laws will alter those
>laws, if you have a broad enough definition of the word "alter".

"Alter" is, perhaps, a poor choice of words. However, I don't 
think the specific word is important: There is some distinction 
between filling in grey areas, and changing aspects of a law
which had previously been black and white.

>I think we would find once we go through your choices of which Supreme
>Court decisions are proper "interpretations" and which ones are "alterations"
>that you too are letting your own biases determine which are which.

Not exactly: These rulings could, perhaps, be considered "filling
in grey areas", but they do so in an overly broad way: By also modifying 
aspects of the law that, before the ruling, had been black and white.

>How is it that Lochner v New York, say, is an "interpretation," while
>Justice Holmes's dissent is an "alteration"?  Why not vice versa?  Or
>could it be the case that both are valid interpretations of a gray area?

I'm not sure I'd call either "alteration", since the case turned (largely)
on interpertation of the Fourteenth Amendment (which is extremely 
vague). I would personally say that the Article One Section Ten
clause on the "obligation of contracts," is also important, but
Holmes doesn't mention it. In any case, I'd say either opinion
is within the (extremely broad) constraints of the Fourteenth
Amendment.

                                                   Frank Crary
                                                   CU Boulder
Xref: sparky misc.legal:23437 misc.int-property:1600