From the book The New Doublespeak - Why No One Knows What Anyone is Saying Anymore :
Cannot be reprinted without permission.
One of the courts
greatest influences on our lives is its ability to “define.” The
court has the power of law to make definitions that become the only one people
use. Much of law involves learning definitions and ways in which those definitions
can be applied to specific situations.
For example, “what is a country?” In one case, the U.S. Supreme
Court was faced with determining what a country is. Chief Justice William Rehnquist
wrote that “country” simply refers to some land mass and does not
require the existence of an actual political state or sovereign. These types
of definitions can have serious and far reaching consequences.
The preamble to the United States Constitution begins with the phrase, “we
the people.” What does the word “people” mean? Especially
in the Fourth Amendment, which states, “The right of the people to be
secure in their persons, houses, and papers, and effects, against unreasonable
searches and seizures shall not be violated”. This question came before
the court in the case of United States v. Verdugo-Urquidez, in which
a citizen of Mexico was charged with conspiring to ship tons of marijuana into
the United States. Mexican officials had arrested the accused drug dealer and
turned him over to U.S. authorities. After his arrest, and while he was being
held in a U.S. prison, U.S. officers searched the various houses he owned and
seized evidence. Did these warrantless searches violate the defendant’s
Fourth Amendment rights?
Chief Justice Rehnquist upheld the warrantless searches writing that the term
“people” was a “term of art employed in select parts of the
constitution.” Justice Rehnquist then defined this term of art as “a
class of persons who are part of the community.” Of course, we might want
to ask what it means to have a “sufficient connection” with this
country, and what is meant by a “class of people,” and what the
“national community” is? But Justice Rehnquist achieved what he
wanted with his definition. Within the United States the rights of foreigners
against a warrantless search depends on their status or “connection with
this country.” The defendant in this case held a green card, so apparently
possession of that card doesn’t move you into that special class of “people"
who are protected by the Fourth Amendment. Of course, U.S. agents would have
to be more careful in Mexico because no searches are allowed in Mexico without
a warrant.
Classifying people according to two principals simultaneously can lead to confusion
and invalid classifications. For example, we could classify all the cars on
the parking lot according to size, then reclassify them according to color.
But if we classify them on both size and color we run into problems. The red
Corolla belongs in the same group as the red Cadillac based on color, but based
on size the two cars belong in different classes. This is exactly what the Supreme
Court did in two cases on sex discrimination, Geduldig v. Aiello and
General Electric Company v. Gilbert.
In these two cases health benefits were denied to pregnant women. Justice Rehnquist
wrote that in each case the health plans did not discriminate against women
because “the programs divides potential recipients into two groups –
pregnant women and nonpregnant persons,” and that pregnancy is just “an
additional risk unique to women.” Because not all women are pregnant,
there is no discrimination. Moreover, pregnancy is “voluntary,”
said the chief justice.
Dividing the members of the insurance plans into pregnant women and nonpregnant
persons is a case of shifting the basis of classification. We might classify
the members of the insurance plan as pregnant and nonpregnant women,
or as pregnant and nonpregnant persons, but women and persons
shouldn’t be mixed in the same classification, since the class “women”
includes women but excludes men, while the class “persons” includes
women and men. As based in error as it was, this definition held as the law
of the land until Congress passed the Pregnancy Discrimination Act of 1978.
Perhaps the most fundamental principle of American criminal law is the presumption
of innocence. You are innocent until proven guilty in a court of law. Because
of this presumption of innocence, the government cannot imprison you until you
are found guilty of the crime with which you are charged. At least that is the
way things used to be.
Under the Bail Reform Act of 1984, courts could order that a suspect
be held in “preventive detention” on the basis that he was likely
to commit further crimes. Lower courts held this law unconstitutional on the
grounds that it violated a suspect’s right to due process of law and violated
the Eighth Amendment’s right to bail. In Unites states v. Salerno,
the Supreme Court decided that putting someone in prison without a trial wasn’t
imprisonment at all, nor was it punishment.
Pretrial detention, as the Supreme Court calls holding someone in jail without
bail, is simply a “regulatory” procedure. According to Justice Rehnquist:
“the mere fact that a person is detained does not inexorably lead to the
conclusion that the government has imposed punishment.” So, as you sit
in jail for months awaiting your trial, you can keep reminding yourself that
you are not being punished. Your stay in that jail cell is just a regulatory
stay, and that when the jury finds you innocent, all the time you spent in jail
will be returned to you by the court that put you there.
In recent years, the Supreme Court has rendered decisions that were so clearly
contrary to the intent of the legislation as passed by Congress, that Congress
has passed subsequent bills to correct the Court’s rulings.
In one case, if the court read the law as written, it was clearly unconstitutional
and the defendant would win. But the Court didn’t want the defendant to
get off, so it just ignored the words of the law and read the law the way it
wanted it to read. Under consideration was the Protection of Children Against
Sexual Abuse Law. Under that law, “any person who knowingly transports
or ships” or who “knowingly receives or distributes” a “visual
depiction” of a minor engaged in sexually explicit conduct faces up to
ten years in jail and a fine of up to $100,000. The defendant was convicted
of selling videotapes that were made by a well-known sex film actress before
she was eighteen years old.
The problem with the law is the placement of the adverb “knowingly.”
As written, it modifies “transports or ships” and does not modify
anything else in the sentence. Read literally, the law requires only that the
transport, shipping, receiving, or distributing be intentional, with no such
requirement for sexual contents or for the age of the performers. As Chief Justice
Rehnquist wrote, the literal interpretation “would produce results that
were not merely odd, but positively absurd." How to solve the problem?
Easy, according to Justice Rehnquist. “We do not assume that Congress,
in passing laws, intended such results.” The Court would invoke
a presumption that a knowledge requirement applied.
This is a wonderful new principle of law. Don’t like the law the way it
is written, then just read it the way you want it to read. So written words
don’t mean what they appear to say, or even what most of us would agree
that they say. What they really mean is what the Supreme Court says they mean.
Is there any greater power than this?
Cannot be reprinted without permission.