January 10, 2013

The curse of right-wing textualism

Revealed, yet again — and yet again by a “conservative” lawyer.  Starting to see a trend?

[H]ere’s what we’re talking about. 31 U.S.C. § 5112(k):

The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.

[...]

Is the platinum coin legal?

Several folks on the left have taken the lead claiming that the platinum coin trick is illegal. Kevin Drum over at Mother Jones and Tom Maguire at Just One Minute are in that camp, but this argument takes two flavors.

Drum argues that the platinum coin trick is illegal because it’s not what Congress intended by the platinum coin statute. I’m not sure where Drum has been living all these years, though, because what Congress intends and what the laws actually accomplish do not generally have much to do with each other. Certainly there is no legal requirement that laws accomplish Congress’ purpose in passing them. Look no further than the so-called Affordable Care Act.

Legally, if statutory text is unambiguous on its face, there is no reason to look outside the text — at either the context or at congressional intent — to determine its meaning. In short, if the text is clear, we already know its meaning. It is irrelevant what one, two, or even a hundred legislators intended when they passed something if the text is clear.

In the case of the platinum coin statute, the language is simple and direct. There is no ambiguity and it therefore doesn’t matter a lick what Congress thought it was doing when it passed the law.

Without dealing with the specifics of the statute under dispute, and without going too far down the path of redescribing the role of guild-like conventions on interpretive communities– in the case of law, legal conveniences for making sure that the lawmaker’s aren’t trying to hide their intent,  made manifest in the requirement that language used in legislation be straightforward for the purposes of interpretation — and how those conventions are merely shortcuts to determining what was meant, or intended, by the agency responsible for giving the signs being interpreted their fixed meaning (be that an individual or corporate intent), let me just point out the kernel assumptions on offer from Mr Malor, and then draw those out and show where they lead ideologically and politically.

To begin, let’s take Malor’s assertion that “what Congress intends and what the laws actually accomplish do not generally have much to do with each other,” offered as a form of proof that intention doesn’t matter, which to textualists is (sadly) a truism.  Unfortunately, it’s also an admission that they don’t much care what a law is intended to do, only that they be able to use it in ways that allow them to massage out of the signifiers on offer whatever it is they wish to see.  That is to say, they privilege the marks — the squiggles on the page that look like language — over the signs (which are the marks attached to their signifieds, their referents, to the very couplings that make them into language), and then resignify the marks to suit their purposes.  Worse still, they then offer as a defense of such an incoherent and decidedly improper theft of another’s text the fact that they’ve long gotten away with just such thievery and linguistic incoherence.

Malor then asserts that “there is no legal requirement that laws accomplish Congress’ purpose in passing them,” which is just another way of saying sometimes Congress passes bad laws, largely because they’ve failed to signal their intent.  But rather than force Congress to clarify, we instead play a game in which we give ourselves permission to use their failure to signal their intent as a justification for suggesting that their intent is now irrelevant — and that we are now free to do with their marks as we see fit.  This, again, is a perversion of what it means to “interpret,” if by interpret we mean understand what it is the message we receive is supposed to be relaying to us.  Failure to take into account context or intent is a failure to address the text before you.  Instead, you are addressing what looks like a text — what looks like language — and then turning it into language yourself by applying your own signifieds to the signifiers before you.

That is, you are re-writing the text, then pretending that what you’re doing is interpreting it rather than creating it, then attributing that creation either to the lawmakers or to “the text itself.”

In the first instance, you have transferred your own meaning onto that of the lawmakers, which is linguistically absurd:  the lawmakers had a meaning, which they set down in the signs you now claim you can ignore.  In the second instance, you operate under the strange idea that a text can exist outside of our intent to a) see it as language, and b) assume that, because we see it as language, we recognize that it carries with it some intent.   Once you concede that a text can only be a text when it is presumed to be language, then it follows that an interpretation of that text relies on intent.  The upshot being, whose intent are we to privilege when we claim to be interpreting, those who turned the text into language, or those who wish to pretend that the text is some free-floating thing that they get to reconstruct on the fly?

Malor writes, “Legally, if statutory text is unambiguous on its face, there is no reason to look outside the text — at either the context or at congressional intent — to determine its meaning. In short, if the text is clear, we already know its meaning. It is irrelevant what one, two, or even a hundred legislators intended when they passed something if the text is clear.”  But that begs the question:  if the text were clear and unambiguous on its face, we wouldn’t be questioning the breadth of its application.  And the reason we are doing so is because we are arguing that a text can’t be anything without having been signified by either its authors or its receivers.  In fact, a statutory text can’t ever be unambiguous on its face except through legal convention, but legal convention is merely a shortcut for trying to glean likely intent.

So Malor has it precisely backwards:  the text can’t, as a linguistic matter, ever really be clear without an appeal to the intent of those who wrote it — even if that presumption of intent is merely a function of habit on behalf of those who engage the text, the interpreter having internalized the idea that what he’s dealing with is language, and so has attached to it a specific intent and a specific meaning.  And as that meaning comes either from the originary authors of the text or the text’s textualist rewriters, it makes no sense to argue that it is “irrelevant what one, two, or even a hundred legislators intended when they passed something if the text is clear,” because if the text were truly clear, it would signal the legislative intent.

To argue that it “doesn’t matter a lick what Congress thought it was doing when it passed the law” is to argue that it isn’t Congress that writes and passes the laws — rather, it is up to the clever textualist to determine what the law means.  And so in that way, the textualist becomes the owner of the law — though s/he would never frame it that way.

Instead, they’ll tell you that their hands are tied, the text is “clear and unambiguous,” and so therefore it doesn’t matter what was meant by it because what is meant by it is an ongoing exercise in rewriting, revision, and recontextualizing.

It is a power grab based on the idea of consensus of interpretive communities.  And it is precisely the mechanism through which the left robs the individual of his autonomy and replaces that with the collective will.

To see many on the right so committed to the linguistic sophistry at the heart of their own demise is dispiriting.   And yet sadly, it is all too common.

Plus, egrets!

(h/t geoff B)

 

Posted by Jeff G. @ 12:09pm
132 comments | Trackback

Comments (132)

  1. And yeah, I know. This one takes some concentration.

  2. Egrets. I’ve had a few.

    But then again…

    [Seriously, it was worth the ride - even if some of your stuff is like having to make my brain do more push-ups than it wants to.]

  3. What seems unambiguous to me is that the law quoted by Malor doesn’t say the platinum coins can be legal tender. I’m pretty sure that if we were to dig up the laws authorizing Treasury to mint dimes and nickels we would see something about legal tender in those laws. They might even be in a separate body of law from the one about platinum coins.

    Lawmakers can be sneaky like that. You have to check on them all the time.

  4. So why would the Fed want to “buy” (back) the non authorized treasury fiat money with their own authorized fiat money again? That would essentially be handing their particular super power, over to the treasury and to be on the hook for whatever foolishness the treasury might get up to. Undermining one’s own importance doesn’t seem like the way big bureaucracy generally works.

  5. The Executive claims it can mint platinum coins because they are not explicitly prohibited from doing so as they are with paper, gold and silver. Kind of puts the last nail in the enumerated powers thing, doesn’t it?

    I think they should mint the trillion dollar coins from water vapor. It would have the benefit of being as substantial and as hard to track down as the contents of the Social Security trust fund and all the QE-forevah money put into circulation (or non-circulation as the case may be) by the Federal Reserve. It also has the benefit of being virtually inexhaustible.

  6. I saw somewhere that even if the Treasury prints them the Federal Reserve is under no obligation to accept them as legal tender. And if they would, why not print 17 of them and have an instant surplus. Doing so might help even Big Media talking heads to begin to understand how corrupted the central banks have become.

  7. Malor has never been even a “conservative in quotation marks.”

  8. From the Mother Jones piece by Kevin Drum.

    During the very short floor debate on this amendment it was repeatedly referred to as a “technical correction,” and that’s obviously what was intended. Oklahoma Rep. Frank Lucas described it this way:

    Also contained in the bill is a clarifying section inserting the word ‘‘platinum’’ inadvertently dropped when Congress authorized production of platinum and platinum bullion coins a few years ago….This is a small bill, but important to the mint and important to coin collectors. It has no cost implications whatsoever.

    No particular restrictions were placed on the design or issuance of platinum coins, but this paragraph was plainly intended to apply to bullion and commemorative issues for coin collectors. That’s all.

    And others:

    Mr. LAFALCE. Mr. Speaker, I rise in
    support of the bill.

    Mr. Speaker, I rise in support of the United States Mint Numismatic Coin Clarification Act of 2000. The Act operates to introduce a ‘‘technical correction’’ into the language of the Dollar Coin Act of 1997. The Act that we consider today, will permit us to achieve the purposes of the Dollar Coin Act by removing the requirement that newly minted dollar coins be
    composed of 90% silver and 10% copper. Instead, the silver/copper content requirement will apply only to half-dollar, quarter-dollar and dime coins. A dollar coin, minted in gold coloring with manganese-brass content will be included with the proof sets. The Act also grants the Secretary of the Treasury the discretionary authority that he or she may exercise from time to time to mint and issue platinum bullion coins.

  9. Malor has never been even a “conservative in quotation marks.”

    And he is easily the most foolish voice the “right” has on fake money, its causes, uses, and end results. Undoubtedly it didn’t matter what the Framers intended* once Y2K Ponzi America rolled around and everybody got owned.

    No, got owned. You conservative.

    *”I sincerely believe that banking establishments are more dangerous than standing armies, and that the principle of spending money to be paid by posterity under the name of funding is but swindling futurity on a large scale.” –Thomas Jefferson to John Taylor, 1816.

  10. Hmm. Maybe somebody misread “bullion coin” with “dollar coin” and thought, “Hey, bullion dollar coins? Why not trullion dollar coins!?”

  11. Come on: how awesome would it be for Biden to go to China, drop eight coins on the table, and say “We’ve paid our debt, bitches!”

    …Seriously, is this so that we can no longer compare the debt to the Empire State Building? Uh, we reelected Obama, guys, this country obviously has lost the concepts of economies and math.

  12. Worth repeating: Platinum Coin: Crossing the Monetary Rubicon

    Currently it is against the laws of the land for the Treasury to issue debt, and for the Fed to buy it directly, as opposed to running that debt through the test and discipline of the markets. I researched this a number of years ago, and do not recall the particular law offhand, but in effect the Treasury cannot sell debt directly to the Fed. It must pass through the marketplace first to be valued.

    This is all the difference between a democracy, as imperfect and occasionally corrupted as it may be, and a diktat by a central authority.

    The platinum coin solution uses a statute regarding commemorative coins to evade that law of money. If the Treasury creates money out of nothing on its own volition, whether it be by assigning a purely whimsical value to a platinum coin, a wooden nickel, or a magic money wand, and deposits that symbolic object with the Fed, it is a game changer. It is purely arbitrary monetization.

    And that step requires debate and a proper law, if the country chooses to accept it.

    Malor is an idiot. Intent was already legislated.

  13. Certainly there is no legal requirement that laws accomplish Congress’ purpose in passing them

    That’s a neat trick. Is it even “a law” if there is no attempt to accomplish the purpose?

    For example, Congress, by law (or not), must pass a budget. They don’t, but there is no legal recourse to enforce “the law”. So, if there is no legal requirement to accomplish the purpose of the law (pass a fucking budget ya incompetent assholes), is it really even a law? Sounds more like a suggestion to me.

  14. . . . Biden to go to China, drop eight coins on the table, and say “We’ve paid our debt, bitches!”

    And the Chinese gov’t., reciprocally, to fly a representative to NY, plop the same coins down on a table in an agreed trade, to say “we now own this 8 trillion dollar item”.

  15. “And the Chinese gov’t., reciprocally, to fly a representative to NY, plop the same coins down on a table in an agreed trade, to say “we now own this 8 trillion dollar item”.”

    That gets them some real estate to hold and pay taxes on, not sovereign territorial rights. And it might be a good deal if the real estate owners selling their real estate accept the coins and they can continue to be traded as a sort of mega-bond that has value only as long as there is wide consensus that the mega-bond can be paid off someday. And if the US showed any capacity for austerity and cutting their spending down to manageable levels then it MIGHT even be a decent bet if we could also get the restrictive central planning style regs and taxes thrown out and start the economy GROWING again.

    Funnily enough, the US isn’t about to sell off its assets like real estate to private entities pay down its debts like we would have to if we were so deep in debt.

  16. Poor Wall Street. If that happened, then they’d be forced to admit their own insanity and melt into a puddle of their own implausibility, a la the wicked witch of the west.

  17. Seriously: If I ever have the President knock on my door and give me a trillion dollar coin, it would be so weird to refuse it because I know that no bank would ever be able to honor it.

    Now, maybe it would be worth the trillion to just see the look on his face, but still.

  18. accept the coins and they can continue to be traded as a sort of mega-bond that has value only as long as there is wide consensus that the mega-bond can be paid off someday.

    Which was the whole point of Fort Knox when we were on the gold standard. Even the old Silver Certificate notes that used to circulate alongside Federal Reserve Notes were, in effect, debt instruments — with each noteholder a creditor against the U.S. Treasury.

    I’m beginning to see more deeply into JHo’s favorite subject, and it’s all Paul Krugman’s fault.

  19. For example, Congress, by law (or not), must pass a budget. They don’t, but there is no legal recourse to enforce “the law”. So, if there is no legal requirement to accomplish the purpose of the law (pass a fucking budget ya incompetent assholes), is it really even a law? Sounds more like a suggestion to me.

    Regarding fiat power and fiat money, in the last two weeks we’ve established that two of the three branches of the federal government are acting and/or operating deeply and fundamentally illegally, in whole or in part. Within the last six months, that all three of them have violated the Constitution.

    Recourse? A conservative would think impeachment, prosecution, and/or some degree of very serious and very broad housecleaning. I haven’t even heard the subject of any of these come up. I have seen a variety of conservatives make fools and cowards of themselves.

  20. Mr. Dickens said it best: “The law is an ass!”

  21. Recourse? A conservative would think impeachment, prosecution, and/or some degree of very serious and very broad housecleaning. I haven’t even heard the subject of any of these come up. I have seen a variety of conservatives make fools and cowards of themselves.

    Impeachment lost its lustre in 1998, when even a Republican Senate couldn’t bring itself to take a bill of impeachment seriously agauinst Bill Clinton. The GOP Establishment had already been captured then, as hinted when the Senate didn’t buy into the Contract With America (and some even deplored it despite its success at the polls) four years earlier.

  22. As I so brilliantly observed in that one thread Jeff linked: “Either a text is a Rorschach blot or it isn’t.”

    The fact that I’ve forgotten what it means should not dim its luster, I trust.

  23. At the rate we’re going, the only currency anyone in this country is going to respect is lead –backed by the full faith and credit of chemical propellant.

  24. A conservative would think impeachment, prosecution, and/or some degree of very serious and very broad housecleaning. I haven’t even heard the subject of any of these come up.

    The GOP would be the Pharisees and Scribes dragging the woman caught in adultery before Jesus, asking whether she should be stoned (Moses says yes; Rome says no—gotcha!), and then being advised that those not guilty of adultery may commence with the execution.

  25. Jeff,

    When Malor asserts that “there is no legal requirement that laws accomplish Congress’ purpose in passing them,”. He is stating a truism but not commenting on intentionalism. Any law can be interpreted consistent with the meaning of the words and still not gain the intended effect of it’s implementation. Consider the three statements:

    1. The intended meaning of the words.

    2. The intended effect of the implementation of the intended meaning of the words.

    3. The intended net result of the intended effect of the implementation of the intended meaning of the words.

    Only the first deals with intentionalism as i understand it but they all assert an intention.

    From above “To begin, let’s take Malor’s assertion that “what Congress intends and what the laws actually accomplish do not generally have much to do with each other,” offered as a form of proof that intention doesn’t matter, which to textualists is (sadly) a truism.”… The challenge is to distinguish between “intention” as an interpretive construct in deriving meaning and “intention” as a forecast describing the desired outcome or as the intended effect of implementation. From my observation this small distinction is the great wall of china that separate “textualism” and “intentionalism”.

    -JLS

  26. In current matters of impeachment, Madison foreshadowed the circumstances in which we find ourselves set off today as the ‘country party’ over-against the ‘ruling party’ — Federalist 10:

    ** No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? **

    Once the formerly divided powers unite under a single interest (their own together), enforcement of law bows to tyranny.

  27. In post-Constitutional America, none of this matters anyway. Obama will simply do as he pleases. There’s not enough votes in the Senate to convict on an impeachment.

  28. At the rate we’re going, the only currency anyone in this country is going to respect is lead –backed by the full faith and credit of chemical propellant.

    Hey, don’t forget whiskey! Whiskey always commands respect. It’s like the anti-Malor.

  29. Any law can be interpreted consistent with the meaning of the words and still not gain the intended effect of it’s implementation.

    Yes. Hence the law of unintended consequences. A failure to signal your intent to the extent that what you intend is carried out the way you intended it is not a flaw in intentionalism, which just is. Instead, it is a commentary on the imperfectability of a second-order system of representation.

    Malor and other textualists take this imperfectability and use it to dismiss intentionalism altogether, asserted that a text exists free of the intent that imbued it with the status of language. And the point is, if you use that as your model, you can’t interpret in any way other than by privileging your own intentions. The fact that they may align with the originary intentions doesn’t forgive the mistake of replacing authorial intent with convention.

    Malor states explicitly that it is “irrelevant what one, two, or even a hundred legislators intended when they passed something if the text is clear.” To which I respond, if the text is in fact clear, than what those legislators intended is already obvious, and because their intent is what matters in making law, it is anything but irrelevant.

  30. What seems unambiguous to me is that the law quoted by Malor doesn’t say the platinum coins can be legal tender.

    That doesn’t preclude there being other laws that do, does it?

    Thompson v. Butler seems to argue that a gold bullion coin is worth only its face value if presented to pay a cash debt, but that it is legal tender. I’m not sure how the court would have ruled, had the value of the gold been less than the face value.

    But I would guess that occurrence would be no more offensive than a dollar being worth much, much less than one dollar in material value. And I’d tend to think that the quick-kick that the trillion dollar coin represents would have some more difficulty in execution as has been mentioned by e.g. Maguire, as well as having some freight of notoriety.

  31. …but I do agree that the intent of the law may not be being hewed to, here.

  32. - Actually in the coming Utopia the only thing of value will be toilet paper sheets. The organic version, fern leafs, will also be a hot ticket item.

    – Stock up hobbits.

  33. Malor states explicitly that it is “irrelevant what one, two, or even a hundred legislators intended when they passed something if the text is clear.”

    There’s significant SCOTUS case law that backs this.

    I remember reading one of Cardozo’s decisions years ago on something or other where the law’s plain language differed from congress’s supposed “intent”. The one sentence in decision that supported the law as written that stayed with me was telling: “Words matter.”

    Cardozo was saying it not the court’s job to unfuck a fucked up law if it meets a strict test of constitutionality.

  34. Now I’m agreeing with mutually conflicting arguments. Time to get off the Internet.

  35. -What Parker said at 12:28 pm.

    -Jeff wrote:

    In the first instance, you have transferred your own meaning onto that of the lawmakers, which is linguistically absurd: the lawmakers had a meaning, which they set down in the signs you now claim you can ignore. In the second instance, you operate under the strange idea that a text can exist outside of our intent to a) see it as language, and b) assume that, because we see it as language, we recognize that it carries with it some intent. Once you concede that a text can only be a text when it is presumed to be language, then it follows that an interpretation of that text relies on intent. The upshot being, whose intent are we to privilege when we claim to be interpreting, those who turned the text into language, or those who wish to pretend that the text is some free-floating thing that they get to reconstruct on the fly?

    If you separate the text from the intent of it’s creators and allow free interpretation of said text, you are promoting Chaos, because (1) another, say, judge can come along and re-interpret the text ['privileging your own intentions'] and (2) meanings/definitions respected equal stability. Also, when you detach a word from it’s meaning, you are undermining effective communication between people because they will never be able to put their trust in what they instinctively believe to be the message they are receiving as there is no standard set of definitions they can turn to. To have The Rule Of Law and not The Rule Of Man [ie: of Whim], there has to be order and you cannot have order unless you have stability in a number of areas, most especially in the meaning of words.

    Further, this instability, this Chaos, is exactly the outcome the Left wants because they intend to take advantage of it and, while confusion reigns, move in and seize power. The Left thrives on Chaos.

  36. Some years ago I came across a statute that prohibited a divorced parent’s claim of unemployment from interfering with a child support obligation. By the time gender feminism and the family law industry arrived its common use was to allow any degree of unemployment to end child support payments — almost entirely by remarried moms who had traded up — so long as they didn’t argue on the basis of willful unemployment. Be it but don’t admit it.

    In other words, be willfully unemployed but don’t say “I can’t pay because I chose to be unemployed”. The court had to divine litigant intent.

    The effect was precisely the opposite of the legislature’s clear intent, which was to not leave children unsupported by parents working out their anger on the other parent via stopping cash payments. The fact nobody cared was as evident as the fact that family law by then had become a gender discrimination industry.

    I think the only way to unfuck this situation would have been to cite all sorts of prior rights, not least of which is that the right to parent is not ended by someone deciding to go sleep with money and have it, you know, enact another kind of rage entirely equipped to harm children.

    In this setting naturally those prior and most fundamental rights didn’t mean jack. In other settings clearly they don’t mean jack today.

  37. JHoward, I bet I got reamed in divorce court worse than you got reamed in divorce court.

    I’m not sure the legislators true intent wasn’t served, ie., degrading marriage and family to the point the only people that want to marry are homosexuals.

  38. OT: I had to issue multiple “Fuck Yous” to Mara during the FauxNewz panel. Even Krauthammer needs to be knocked in the head a bit.

  39. There’s significant SCOTUS case law that backs this.

    I don’t doubt it. There have been a significant number of textualists.

    What I’m speaking about is precisely the idea behind the oft-repeated “words matter”: namely, that for them to be words in the first instance, they must be joined by intent — and if we claim to be interpreting the law as passed, we must necessarily appeal to the intent of the lawmakers.

    Now, if a law is passed that fails to signal its intent — that is, if the lawmakers write the law in such a way that it defies the agreed upon conventions for legal interpretation by being less than clear — we’re dealing with something else entirely. In such a case I favor a judge telling a lawmaker to rewrite the law to be more exact. Justices expect the law to mean what they will most readily read it to mean. It’s a kind of professional agreement, which is why in my post I called it a “guild-like convention.”

    Cardozo is just saying its not the job of the court to go out of its way to understand what was meant when the court doesn’t readily see it that way, provided the way it sees it can be appended believably to the text and passed off as a plausible and legal reading. That’s giving himself and the courts a lot of power while simultaneously laying blame for what is in fact an interpretative usurpation on the stupid lawmakers who have practically forced the poor courts to decide what they meant for them.

  40. OT: I had to issue multiple “Fuck Yous” to Mara during the FauxNewz panel. Even Krauthammer needs to be knocked in the head a bit.

    Seconded, as I just suffered hearing the same insulting talk. With complacent allies like Krauthammer, who needs enemies? The man would give away the store.

  41. Now, if a law is passed that fails to signal its intent — that is, if the lawmakers write the law in such a way that it defies the agreed upon conventions for legal interpretation by being less than clear — we’re dealing with something else entirely.

    Which would force Dickens to revise, to wit: “The law is a word salad.”


  42. Malor states explicitly that it is “irrelevant what one, two, or even a hundred legislators intended when they passed something if the text is clear.” To which I respond, if the text is in fact clear, than what those legislators intended is already obvious, and because their intent is what matters in making law, it is anything but irrelevant.

    Again the challenge is the ambiguity of “intended”. If Malor was using it as “intended to accomplish” then the question is resolved and there is no issue. In Malors quote:

    In short, if the text is clear, we already know its meaning. It is irrelevant what one, two, or even a hundred legislators intended when they passed something if the text is clear.

    In the case of the platinum coin statute, the language is simple and direct. There is no ambiguity and it therefore doesn’t matter a lick what Congress thought it was doing when it passed the law.

    Here Malor equates “intended” with “thought it was doing” which leads me to believe he was using “intended” in the sense of “intended to accomplish”. Earlier he said:

    Drum argues that the platinum coin trick is illegal because it’s not what Congress intended by the platinum coin statute. I’m not sure where Drum has been living all these years, though, because what Congress intends and what the laws actually accomplish do not generally have much to do with each other

    I read this to mean that Malor is saying that “because what Congress intends [to accomplish] and what the laws actually accomplish do not….” Malor appears to be consistent in using intended in the sense of “intended to accomplish”.

  43. There is a simple elegance to the constitution that proggs hate, in that the only way to have a government that isn’t tyrannical, is to have a government limited in size by clearly defined functions.

    We are assaulted on all sides; every effort taxed, heavy police presence with no relative assurance of personal safety, a justice system that inflicts cruelty on the innocent in it’s mercy to the guilty, an ever tightening of regulations and liabilities, thousands of new laws every year, constant pressure applied to rights that are sacrosanct. All of it, ALL, is totally predictable from history and an understanding of human nature.

    The only way to avoid tyranny is by limiting the size of government.

    When you have a government spending a trillion dollars more than they have every year, despite taxing everything that moves, you have a government with no limits. We are already living under tyranny, all they want and need now is to disarm us, and achieve permanence.

  44. Did Madison intend that the separation of government powers be overridden by a covert agreement of the powers to be separated to simply ignore the clear meaning he gave the idea of separation — opposition of interests — simply because what is accomplished de facto today in a mutually agreed union of interests is accomplished? Or did he have something altogether different in mind in his intention?

  45. Malor appears to be consistent in using intended in the sense of “intended to accomplish”

    If you say so.

    But I repeat: “There is no ambiguity and it therefore doesn’t matter a lick what Congress thought it was doing when it passed the law.” This seems to suggest it doesn’t matter what their intent was, what matters is that he sees no ambiguity.

    But of course, ambiguity arises when contexts change, or when the meaning is brought up for dispute. The 2nd Amendment was perfectly clear to those who wrote it; and yet it took going back and looking at what they intended to rule that what is perfectly clear is, in fact, perfectly clear.

  46. Bullion coins are valued by the weight of the metal and the going price for it. They can mint an eleventy-kazillion dollar coin and it’s still only worth its weight in whatever it is.

  47. ” the going price for it”

    it is backed by baracky’s ego

  48. Justices expect the law to mean what they will most readily read it to mean. It’s a kind of professional agreement, which is why in my post I called it a “guild-like convention.”

    The flip side of that is that a law is the language that the majority of legislators agreed upon, despite the fact that individual members of the majority might claim a meaning other than the obvious one. Legislation ought to be clear and unambiguous.

  49. Here’s the bottom line:

    Textualism is how lawyers, (legislators, lobbyists, political aides, judges, administrators –but why keep repeating myself?) lie to themselves, each other and the people whom they claim to serve.

    Case in point, the Obama Care penalty fee fine tax.

    Whatever they have got to call it today to fool enough of the people so as to keep on fooling them into tomorrow.

  50. But I repeat: “There is no ambiguity and it therefore doesn’t matter a lick what Congress thought it was doing when it passed the law.” This seems to suggest it doesn’t matter what their intent was, what matters is that he sees no ambiguity.

    I read it differently: ““There is no ambiguity[meaning the language is clear and their intent in understood] and it therefore doesn’t matter a lick what Congress thought it was doing [intended to accomplish] when it passed the law.”

    I read it as the lack of ambiguity means the language is clear and therefor the intended meaning is clear and what they were trying to accomplish doesn’t matter a lick.

  51. Case in point, the Obama Care penalty fee fine tax.

    See, on that one I think Roberts actually reached out for their actual intent, when he should have stuck to the letter of the law.

    Speaking of O-Care: Obamacare Amendment Forbids Gun and Ammo Registration

  52. I read it as the lack of ambiguity means the language is clear and therefor the intended meaning is clear and what they were trying to accomplish doesn’t matter a lick.

    Presumably the lack of ambiguity would mean the legislature successfully communicated it’s legislative intent, and therefuor accomplished whatever they intended to accomplish.

    Which makes Malor’s statement an oxymoron in your interpretation i.e. they succeeded in doing what they set out to do, so what they thought they were doing when they set out doesn’t matter.

  53. See, on that one I think Roberts actually reached out for their actual intent, when he should have stuck to the letter of the law.

    Thus proving Jeff’s point that debasing the language debases not only the ability to communicate, but to reason logically.

  54. This reminds me of DeLillo in White Noise. Great tone for a writer.

    For Malor? Something else entirely.

  55. I see that one more as that they lied to us, Roberts knew it and let them get away with the subterfuge. They called it one thing to pass it and another to pass Constitutional muster.

  56. I read it as the lack of ambiguity means the language is clear and therefor the intended meaning is clear and what they were trying to accomplish doesn’t matter a lick.

    That’s a strange thing to say though, right?

    If one’s intent is clear then it doesn’t matter a lick? Perhaps a better way of saying this would be, “When one’s intent is clear, interpretation is easy and immediate.” But, that’s hardly worth saying, isn’t it?

    Perhaps I’m missing the essential idea behind “what they were trying to accomplish”. Certainly we don’t mean to say “what they meant to have happen” or “what could happen from such legislation”. How’s about a simpler “what they intended to convey”?

    I feel this is overcomplicating things at a simple enough point that we should still have universal agreement.

  57. Perhaps I’m missing the essential idea behind “what they were trying to accomplish”.

    start with the
    Affordable Health Care for America Act

  58. I feel this is overcomplicating things

    proggtards luvsde. some complication and chaos. see code, tax

  59. How’s about a simpler “what they intended to convey”?

    I feel this is overcomplicating things at a simple enough point that we should still have universal agreement.

    What complicates things is that they’re conveying with sleight of rhetorical hand. “We really mean this, but we don’t want to say it to you rubes because you’ll freak so here’s something similar that can be transmogrified later.”

    Little wonder I want to burn DC down with everyone in it and let the new Congress convene via Skype.

  60. i blame the buggy mouse

  61. Now, if a law is passed that fails to signal its intent

    This is often the case. Frequently law is sneaky though in that its nominal title may say one thing, to fool the rubes about its intent, but its actual operational text does something else entirely. Most recent example – the “affordable” health care act, which was explicitly designed to raise healthcare costs when the actual text is examined.

    Another common trick is to redefine common usage words to mean something else entirely in the “definitions” sections of a legislation — IOW, a “word” means whatever congress cares to define it as. This sort of shit has to drive judges nuts, but its SOP in legislation. There’s even sections in the tax code where words are redefined on the fly multiple times as pertains to the “next paragraph” and shit like that. Quite maddening.

    With congress being so explicit and sneaky in its legislative word jujitsu, I find myself pretty sympathetic towards judges who just say “fuck you, we’re ruling on the words, not intent” because you clowns think you’re the best wordsmiths in town, and if you can’t express your intent with plain words, then ummm…suck our collective dicks

  62. i liked to know what the “intent” of barackycare was from those who wrote it? why is it we never hear about the “felon”? who outlined barackycare and his intentions?

  63. Thusly, transmogrification becomes the one and only constant, Pablo.* What’s so absurd about this entire form of argument is that anyone at anytime can just pretend to have heard them say the exact opposite and go about on their own merry way. Which, we’re probably all going to start doing that at some point here in the not so distant future.

    Purple Avenger, it seems to me that the judges have a perfectly good and time-saving retort to all of that: “Your legislation is muddled and incomprehensible. Try again.”

    *I’ll drink a Busch Light later in penance for using both “thusly” and “transmogrification”.

  64. I’m not referring the euphemistic titles. I’m talking about the legislation in toto. From my point of view, passing 2700 pages of legislation you haven’t read — and that you don’t have to follow — should be a hanging offense. For that reason alone the justices should have shitcanned the thing.

    And sure, legislators can make things difficult on interpreters with all sort of caveats and sleight of hand, but the difficulty of the task doesn’t affect the appropriateness of the methodology. How you get there matters.

    My form of sympathizing would be to direct judges to send what they believe to be intentionally convoluted law back to be the legislature to be rewritten.

  65. Oops. bh beat me to it.

  66. The Act also grants the Secretary of the Treasury the discretionary authority that he or she may exercise from time to time to mint and issue platinum bullion coins.

    Definition: Bullion coins

    Precious metal (gold, silver, platinum) coins valued according to their metal content, such as the Krugerrand (gold) and the Noble (platinum), in contrast to the numismatic value of rare coins.

    This ain’t rocket science.

    Congress intended this act to authorize the Sec. of the Treasury “to mint and issue platinum bullion coins.” Bullion coins are “valued according to their metal content.” If the Sec. of the Treasury wants to issue a $ 1Trillion platinum coin that is fine, it just has to contain $1 Trillion worth of platinum at market prices. Roughly 19,231 metric tons would be the weight of such a coin.

  67. Well done Geoff.

    Next you’ll be telling us angels don’t need to dance on pin heads.

  68. *I’ll drink a Busch Light later in penance for using both “thusly” and “transmogrification”.

    Wait, you’re going to punish yourself with shitty beer? Just punch yourself in the head one time and we can call it good. Friends don’t let friends drink shitty beer.

  69. I think “pin heads” need angels dancing all over their noggins to help them not be so fucking stupid.

  70. Congress intended this act to authorize the Sec. of the Treasury “to mint and issue platinum bullion coins.” Bullion coins are “valued according to their metal content.” If the Sec. of the Treasury wants to issue a $ 1Trillion platinum coin that is fine, it just has to contain $1 Trillion worth of platinum at market prices. Roughly 19,231 metric tons would be the weight of such a coin.

    Right. An American Gold Eagle has a face value of $50. If anyone knows where I can buy Gold Eagles for $50, please let me know because they’re selling for $1700.

  71. Maguire, following Drum, makes the same points and they’re simply dismissed by Malor, Geoff.

    How are they dismissed? Dismissed much as a child would dismiss his teacher during a tantrum.

  72. My form of sympathizing would be to direct judges to send what they believe to be intentionally convoluted law back to be the legislature to be rewritten.

    But what does said law mean until that happens? Ideally, nothing. Sadly, I can’t think of a case where that’s happened.

  73. i always wondered why roberts never took on the lack of a severiability(sp) clause to toss it back to congress.
    ain’t be baracky’s fault.

  74. Friends don’t let friends drink shitty beer.

    It’s my understanding that friends don’t only let you drink shitty beer, they also draw cocks on your face and then take pictures.

    Perhaps you mean friends who are girls.

  75. but i suppose roberts wants to be a part of the “total fail sh@t system” with other hardon grads.

  76. Depends on your definition of “friends.”

  77. Perhaps you mean friends who are girls.

    No. I mean friends who are actually friends and not just guys you hang out with. When I was in the service one of my “friends” passed out drunk and we shaved off half of his mustache and one of his eyebrows. We left the rest of the decisions up to him. Friends is relative.

  78. Just remembering my misspent youth, Geoff. Don’t know when it wore off but we were complete bastards to each other for a good decade or so. Laughs were had at one anothers’ expense. Hearty laughs. Belly laughs.

  79. they also draw cocks on your face and then take pictures.

    Drawing a chicken on your face can’t be so bad.

    Oh, wait . . .

  80. No. I mean friends who are actually friends and not just guys you hang out with. When I was in the service one of my “friends” passed out drunk and we shaved off half of his mustache and one of his eyebrows. We left the rest of the decisions up to him. Friends is relative.

    A guy I gave a Hitler* to when he was passed out is coming over to my place this weekend for the Packer game about twenty years later. That was clearly a bonding moment.

    *Self-explanatory: to shave his facial hair into a Hitler mustache.

  81. Sophistry begets sophistry.

    Not that PW’s semiotic deconstruction of the Left’s technique is sophistry.

    But that sophistry is what it is always portrayed to be in the polemicist’s retaliatory upbraid.

    The charge of Sophistry itself, may be suspect, predicated as it is on the accuser’s discovery of a subjective flaw in the text.

  82. [Don't get me wrong, I know what you guys are talking about, Pablo and Geoff.]

  83. Science understands bh. Or as Bill Cosby always said, “Children are brain damaged.”

    The definition of “friends” is different in the “brain damaged.”

  84. Less meta, more exposition, Steve.

  85. The charge of Sophistry itself, may be suspect, predicated as it is on the accuser’s discovery of a subjective flaw in the text.

    you be in the read the bill after it has been passed camp?

  86. It’s shocking that any of us made it through our teenage years, Geoff. No accounting for it.

  87. Agree bh, in spades.

  88. No accounting for it.

    Which is probably why Homer is always reaching for some god or goddess making people do thus and such. He could no more account for his own survival than we can.

  89. Sophistry begets sophistry.

    it is like perpetual motion things?

  90. It’s shocking that any of us made it through our teenage years, Geoff. No accounting for it.

    I blame the dad…

  91. I read it as the lack of ambiguity means the language is clear and therefor the intended meaning is clear and what they were trying to accomplish doesn’t matter a lick.

    I had to skip all subsequent comments to reply to this, so apologies if I’m only echoing…

    If the intended meaning is clear, wouldn’t that be what Congress was trying to accomplish?

    Silly me. This is (mostly) lawyers we’re talking about. If the intended meaning is clear, Congress obviously made a mistake.

  92. “they also draw cocks on your face and then take pictures.”

    Well if they draw faces on your cock then they aren’t really friends so much as scary weirdos that you need to distance yourself from.

  93. The “try again” ploy sounds quite appealing, but as a practical matter probably won’t actually be implemented much at lower level courts because judges reps are staked on their overturn rate.

    The govt appealing a “try again” ruling would just shop the case to a sympathetic higher court to get the answer they wanted.

    Sometimes you’ll see a SCOTUS justice write a strike down opinion on a case that’s only a few sentences long. I imagine the subtext on those is a “try again” slap in the face.

  94. “, it just has to contain $1 Trillion worth of platinum at market prices. Roughly 19,231 metric tons would be the weight of such a coin.”

    And if you tried to sell it to the British they’d be all like “What are you trying to pull here yank? This is merely a thousand billion dollars worth of platinum! “

  95. There’s a decent chance I shouldn’t have gone off on my “drawing cocks on a passed out dude’s face” tangent. Sometimes you draw a cock on your own face in the comments, metaphorically mind you. It happens. Like just now for instance.

    Purple Avenger, I’m curious about what you wrote here:

    “The “try again” ploy sounds quite appealing, but as a practical matter probably won’t actually be implemented much at lower level courts because judges reps are staked on their overturn rate.”

    That shouldn’t be an issue with someone we’d call a judge with a straight face even though it might now be the case. Perhaps a simple yet hard solution is to demand better of them.

    I don’t mean to say this like a naive believer. I’m not. I just don’t think we can do much better in those regards than re-invigorating our institutions with peculiar things like trust and integrity.

    At a certain point either there’s a reliable structure or there isn’t. We can be cynical to a discrete point. After that it’s all moot one way or the other.

  96. i always wondered why roberts never took on the lack of a severiability(sp) clause to toss it back to congress. ain’t be baracky’s fault.

    a) he ain’t what he was billed to be, or
    b) Obama has something on him that would be very embarrassing.

  97. Consider the three statements:

    1. The intended meaning of the words.

    2. The intended effect of the implementation of the intended meaning of the words.

    3. The intended net result of the intended effect of the implementation of the intended meaning of the words.

    Design and make a hammer…. (intended meaning)

    Use the hammer to drive nails into wood and bind them…(intended effect)

    Make better homes and the world a better place. (Intended net result)

    The law says that you may intend the net result to be a better world and it seems reasonable that a hammer would be a fine tool for binding wood but if your legislative language builds a shovel then it is time to start digging.

  98. b) Obama has something on him that would be very embarrassing.

    with a life time appointment so what?

  99. shall hold their Offices during good Behavior

  100. if you had a hammer you’d hit yourself in the crotch jlsmslsd

  101. Make better homes and the world a better place. (Intended net result)

    so commie faggots and jimmie carter and coke are the ghouls. you go loser.

  102. Twice in one week that song shows up.

  103. i’d like to teach the world

    pure billy ayers

  104. if “our” side had sumthing silly billy would be sh&t.like mr. silly billy what do you think of of the sc TEACHER that your loser org at edu who made a stupid attempt to recreate your silly billy pose of 9/11/01? when do they own it?

  105. That shouldn’t be an issue with someone we’d call a judge with a straight face even though it might now be the case. Perhaps a simple yet hard solution is to demand better of them.

    I don’t mean to say this like a naive believer. I’m not. I just don’t think we can do much better in those regards than re-invigorating our institutions with peculiar things like trust and integrity.

    At a certain point either there’s a reliable structure or there isn’t. We can be cynical to a discrete point. After that it’s all moot one way or the other.

    That is not only brilliantly stated but it gets to the very heart of what I’ve struggled to say he for a decade.

    Bronze it. And give it a ribbon for good measure.

  106. silly billy news:

    featuring : baracky in Technicolor on the intertubes with islamo/communisttary by algore

  107. Shit, you remain a true mensch, Jeff.

    You’ve not struggled to say it, you’ve helped/taught others to say it.

  108. BH,
    Good Delillo reference.

    Re Monetary policy: I’m a fan of Jim Grant, of Grant’s Interest Rate Observer. I’ll warrant resident sharpies JHoward and GeoffB share some space with him, though he’s not explicitly partisan in his take. Then again, common sense is now partisan, so perhaps he’s a dissenter from established state-sanctioned orthodox idiocy.

  109. At a certain point either there’s a reliable structure or there isn’t. We can be cynical to a discrete point. After that it’s all moot one way or the other.

    it is moot. please plan accordingly

  110. . Then again, common sense is now partisan, so perhaps he’s a dissenter from established state-sanctioned orthodox idiocy.


    I Am Sick And Tired – Hillary Clinton

  111. it wouldn’t hurt for our mewling congresswhores to have a vote on a bill clarifying that magic coins are not allowed

    maybe boehnerfag could get on that as a practice run at being useful

  112. i like how hillary “tells the peeps” what dissent “is”. ax bill or silly billy

  113. We shall go on to the end, we shall mock them fight in France, we shall mock them fight on the seas and oceans, we shall mock them fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be, we shall mock them fight on the beaches, we shall mock them fight on the landing grounds, we shall mock them fight in the fields and in the streets, we shall mock them fight in the hills; we shall never surrender

  114. ohnoes bad news for our piggy piggy union whore friends

    Supervalu Inc (SVU) struck a $3.3 billion deal to reduce its burdensome debt by selling five of its supermarket chains to an investor group led by Cerberus Capital Management LP (CBS.UL), the No. 3 U.S. grocery store operator said on Thursday.

    Cerberus bought 655 stores for around $1 billion.

    [...]

    The group is likely to sell and close stores, as it did the last time around, supermarket consultant David Livingston said.

  115. More registrations and taxes. Dem-SOP.

  116. “Onry one probrem with pran – it STUPID! It stupidest pran I ever hear!”
    — Murder by Death

  117. Pingback: Language Has to Transmit Meaning and Intention – Or It’s Not Language | Daily Pundit

  118. “Slartibartfast says January 10, 2013 at 3:44 pm
    Now I’m agreeing with mutually conflicting arguments. Time to get off the Internet.”

    That’s called being “almost persuaded”.

    http://www.youtube.com/watch?v=ZKmVgaqmRFQ

  119. Lawyers tend to be textualists because it gives lawyers interpreting or applying laws more power.

    Not rocket science.

  120. Laurence Tribe [rocket-lawyer, fizzling out, reading the egret's tracks and the voices in the wind blowing between his ears. Sad that.]

    I don’t think it makes sense to think about this as some sort of “loophole” issue. Using the statute this way doesn’t entail exploiting a loophole; it entails just reading the plain language that Congress used. The statute clearly does authorize the issuance of trillion-dollar coins. First, the statute itself doesn’t set any limit on coin value. Second, other clauses of 31 USC §5112 do set such limits, but §5112(k)—dealing with platinum coins—does not. So expressio unius strengthens the inference that there isn’t any limit here.

    Of course, Congress probably didn’t have trillion-dollar coins in mind, but there’s no textual or other legal basis for importing this probable intention into the statute. What 535 people might have had in their collective “mind” just can’t control the meaning of a law this clear.

    It’s also quite clear that the minting of such a coin couldn’t be challenged; I don’t see who would have standing.

    Bottom line: This is a situation where the political and economic considerations, not the legal considerations, have to drive the decision-making about this option. It’s certainly a lot better from just about every perspective than having the nation stuck on either horn of the very real dilemma you outlined below, which I agree offers no plausible way out as long as enough leaders in Congress insist on playing Russian Roulette with our economy and risking our full faith and credit by using the debt ceiling as a bargaining chip as they are threatening to do.

    At Harvard you may get what you pay for but you’re not paying that much for the education, no it’s just for the contacts and the lovely framed paper.

  121. Bullion coins are “valued according to their metal content.”

    Valued. Meaning: that is the price at which they are sold to a consumer. If that consumer were to then (foolishly) try and spend that coin at the corner drugstore, it’d be worth its face value. Per the case law I cited upthread. I think that’s a plausible thing, even if it’s stupid.

    Bullion coins are fundamentally different in that they’re not circulated; they’re sold. I don’t know that that distinction is mandated by law, though. Certainly the government might elect NOT to sell.

    I agree that it’s a ridiculous thing to even consider minting a trillion dollar coin. It’s also a break with previous behavior to try and mint a bullion coin whose face value is much, much larger than the value of the metal in that coin. Normally we save worth to face value ratios like that for our currency. But is it illegal? I can’t see that it is. But I think, once again, that Maguire may be getting more to the point of that actually trying to get such a thing minted might not be all that easy.

    If it does turn out to be legal, I’d want to see them stamp them out of platinum as thin as a postage stamp, because I have this feeling we’ll need a lot of them.

  122. It’s the biggest fucking junk bond EVER. And you HAVE to buy a piece of it. It’s the law.

  123. If thou were but a shade upon the shore of river Styx,
    Dour Charon would not ferry thee across the winding depths
    If thou paid him with a false coin cruelly left upon thy tongue
    By delusional and feckless fools that flee their mounting debts.

  124. But is it illegal?

    Or conversely is it legal?

    This turns on exactly what is meant by the term[s] legal/illegal. Is legality determined by what the legislature passed? By what the prosecutor, prosecutes under color of what the legislature passed? By what the bureaucracy decides to do to implement what the legislature passed? By what the court[s] decide that they think is what the law says, that the legislature passed. is legal/illegal?

    What I am arguing and what I believe both Tom Maguire and our host are arguing is that it is the intention of the legislature, expressed in the language of the law and clarified in the speeches made about what the legislators intended the law to make legal/illegal that determines what legal/illegal means in the context of a given law.

    Back at 1:14 pm and at 7:16 pm I quoted from the legislators who wrote this bill and linked to the Congressional Record where others spoke about what they intended this law to be.

    What this argument seems to be getting to is;

    It is legal for the executive to do anything that is not expressly and specifically forbidden by the legislature in a law?

    Or is it only legal for the executive to do what is expressly allowed to do as written in a specific law?

    Everything which is not forbidden is allowed is a constitutional principle of English law — an essential freedom of the ordinary citizen. The converse principle — everything which is not allowed is forbidden — applies to public authorities, whose actions are limited to the powers explicitly granted to them by law.

  125. The government is expressly empowered to mint bullion coins and sell them. Whether it can simply deposit them to its checking account seems to be one of the burning questions, to me.

  126. It is legal for the executive to do anything that is not expressly and specifically forbidden by the legislature in a law?

    At the federal level, the underlying principle of the Constitution used to be that what the executive wasn’t authorized to do, was prohibited. Under that principle, if Congress has not authorized Treasury to mint trillion-dollar coins out of platinum as legal tender, it is therefore not legal for Treasury to do so.

  127. It’s also been argued elsewhere that the Federal Reserve can’t treat a coin as legal tender until it has been paid the face value in previously existing money — otherwise it becomes the issuance of unauthorized debt.

  128. You keep using this phrase, “bullion coins”, but it does not mean what you are implying it does.

    The value of a “bullion coin” is not the number stamped on it, which is arbitrary, it is whatever the market will pay for it. Coins which are valued by the number stamped on them are covered by a different law which specifies the denominations to be minted and their composition.

  129. As I have pointed out at least twice, once with a link even, those bullion coins are legal tender in their face value amounts only.

  130. I’m not going to link to it again and have you not read it, again.

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