Tuesday, May 11, 2010

Sample Letters to the Editor #3 -Our Constitution, "Strict Construction," and Justice

I am posting a series of "letters to the editor" designed to try to change the focus of political questions and discussions. Humbly {G} I offer them to all as models

Feel free to copy (and edit them) for your own locations. (Please add a comment to this blog entry, or email me at rjw.progreesive@gmail.com if you use one.)

I believe a significant short coming of Democratic politics is the failure to affect the focus and language of political discussion. I'm aiming to make the letters succinct with easy to grasp concepts.


To The Editor:

Our Constitution, "Strict Construction," and Justice

Throughout the history of Anglo-American law, there have been periods when we insist on strict interpretation and application of laws and of procedures in the courts. In such periods, justice may be and is sometimes frustrated simply because a party has not followed some exacting, complex dance step, or is denied a right because of some obscure provision of law. In such periods, proper "i" dotting and "t" crossing sadly sets the standard for the courts and for "justice."
In such periods, some folks try to reduce the law to the playyard simplicity of "calling balls and strikes." In the real world, life is far more complex than nine innings on a grassy field, and the law needs to recognize the complexity of human interactions.

These periods of strict construction alternate with those when our society emphasizes justice by the courts, and recognizes that role of judges: is to judge. We ask "does the failure to dot an 'i' lead to an injustice for one party or the other? Does rigorous insistence on 't' crossing lead to just results?"

We are slipping from a period of focusing on justice and with strident calls to refocus on "Strict Construction," "Original Intent," and sanctified and elevated "t" crossing.

Application of true "Strict Construction" standard would defeat the central concept of checks and balances in our government, because the Supreme Court (and other levels of our courts) would not be allowed to hear any constitutional challenges to laws. The Constitution does not confer any such power on the Courts and they did not have it until the Supreme Court created law in Marbury v. Madison in 1803. The power of federal courts to hear constitutional cases is: judge-made law. And that power of judges to make law was embraced by the founding fathers

As monied interests have become close to all powerful in lobbying for, drafting and passing legislation which protects those very interests, the din calling for "strict construction" rises, and the attempts to strip of judges' of their power to exercise their judgement increase, with the result that we are distracted from the central and essential role of our courts: to do justice.

Shakespeare taught us in the 'Merchant of Venice' that, were the court in Venice to invoke "strict construction," justice would not be served. (Ironically, Portia, disguised as a judge, does justice through the extreme "strict construction" of ruling that the lender may take a pound of flesh in payment of a loan in default, per the contract, but because the contract does not provide for taking any blood, the lended may take only a pound of flesh, and not spill a drop of blood, frustrating the "original intent" of the parties but delivering true justice.

Worshiping dried ink on dusty pages and straining the quality of justice by forcing a result which ignores juctice in our courts does not serve our best interests.

PORTIA: The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes.

The Merchant Of Venice Act 4, scene 1, 184–187

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