This Needs Fixin'

Let’s take a moment to look at the Supreme Court’s new-ish standard for deciding whether the State is allowed to do a new thing: does the State have a “history and tradition” of doing that thing?

In other words, the State is only allowed to do new things if it’s already been doing those things for a while.

That is, without a doubt, one of the stupidest things I’ve seen crawl out of the fetid swamp of U.S. judicial thought.

It is the essence of the fundamentalist conservative ethos: the State may only do the same things that the State has “always” done (for whatever definition of “always” the judge involved wants to use).

It is a standard that, by definition, cannot be met by any substantive change.

It legally forbids any real change at all..

The goal, obviously, of establishing this as a legal standard is to declare some point in the past as the unchanging standard any deviation from which is forbidden.

It quite literally outlaws change.

Though given the poor historical scholarship shown by judges, it’s even worse than that. It’s less “some point in the past” than it is “the ignorant pop-culture view of some point in the past”.

At best, it is a profoundly ignorant and stupid standard for interpreting Law.

At worst, it’s a deceitful attempt to declare a momentary advantage to be an unassailable victory in the culture war and also a profoundly ignorant and stupid standard for interpreting Law.

That’s not to say that the opposing approach of interpreting previous generations’ legal texts only in the light of current cultural fashion is any better.

Though that is to a significant degree a straw man, as very few judges actually support the most extreme version of that concept.

It is, regardless, also a profoundly stupid idea for how to interpret Law.

A pox, as the Bard wrote, on both your houses.

The only sane approach to interpreting the Law, both that passed down from previous generations and that created new today, is to read the actual words used in the texts both in their context at the time of writing and in the time at which they’re being interpreted.

And to read the discussions and commentaries from the lawmakers and observers at the time the text was created.

The goal being to construct an idea of what the creators intended and then view the actual text that was chosen through an interpretive framework that takes account of:

• the original stated intent and expectations
• the literal meaning of the text at the time

and then compares that interpretation to:

• the drift in that meaning over the intervening years

This would, of course, require that judges be able to declare a law to have become pathological if the meanings on which it depends have drifted too far for the historical and modern meanings to be reconciled.

And to then require that it be re-drafted to match the modern world.

This is the correct approach, for example, to the problem of having Laws passed down from a country where only property-owning white males had political rights into a world where society expects other races and sexes as well all the less wealthy to be treated equally.

To say nothing of the legal mostrosities created by considering “common law” as anything other than an outdated cultural influence.

Rather than trying to construct some twisted interpretation to render these old laws usable in a modern context, the judge should be empowered to declare a law pathological and give the legislature a deadline by which it must be rewritten.

Stop trying to govern the modern world with old and inappropriate laws.

It’s OK, good even, for the judicial system to say that a law has become unusable and require the legislature to rewrite it.

We can do better than “history and tradition”. Indeed, ignoring “history and tradition” is the only way we can do better.

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