Sunday, May 21, 2006

Scalia on foreign law

The Washington Post reports Scalia tells Congress to mind its own business.

The US is a common law country. It is undisputed that the basis of US law is English common law. The nationalist breast beating that takes place on this question is quite ridiculous.

The case in which the citation of common law is controversial is of course the Supreme court interpretation of the constitutional ban on 'cruel and unusual punishment'. It is pretty difficult to understand how the term 'unusual' could be interpreted except by reference to other jurisdictions.

What seems to have escaped notice however is Scalia's comments on the weight to be given to the legislative history of a bill which is very little. There is good reason to treat legislative history with skepticism. It is frequently contradictory and it is impossible to know quite what the legislators intended when they voted on a bill. Allowing legislators remarks to trump the stated intention of the act means that a single legislator can in effect negate the entire purpose of a bill by reading a tendentious interpretation of the measure into the record. Instead of having to fillibuster the civil rights bill Strom Thurmond could have simply stated that none of the measures in the bill were intended to actually inconvenience the predjudices of racist thugs like himself.

Which brings us neatly to the issue of the 750 Presidential signing statements which are alleged to change the meaning of virtually every Act of Congress during the Bush administration. If legislative intent is to be interpreted skeptically then a presidential signing statement that is not subject to rebuttal or correction must be interpreted with even greater skepticism.

Legislative intent and foreign authority are both tools to be avoided but nevertheless have occasional justification. One of the main justifications is in the field of technology.

Very few laws are so baddly drafted that they are ambiguous when originally drafted. Ambiguity is usually the result of social or technological change. Execution of minors was certainly not considered cruel or unusual when the constitution was drafted but the framers certainly did intend to prohibit hanging drawing and quartering, the traditional English penalty for treason. It is arguable that the framers also intended the phrase to be interpreted in the context of contemporary ethical standards.

Technological change is often the cause of thorny legal problems. If Congress enacts a bill requiring telephone providers to support lawful intercepts they probably intend the provisions to apply to voice communications established through a telephone number regardless of how the communication itself is actually achieved. When Congress passed CALEA the legislators clearly did not understand or anticipate the implications of VOIP.

I don't think it makes sense to read CALEA in a way that creates an exception for VOIP based telephone operators such as Vonage or Skype. If the courts rule otherwise Congress is certain to react by passing an even stricter set of requirements than CALEA.

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