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Did you look behind the cushions?

I should know better than to blog while in a bad mood, so I'm not even going to touch on such matters as the Diversity Reception here at Columbia Law School. (No, I don't like diversity, as the term is generally used in such things, but you have probably had your fill of my Grutter posts.). Besides, while I may not like such things as a matter of policy, it's unrelated to anything at which I'm actually annoyed. But as long as I'm venting:

Today in Legal Methods, I found myself defending a very strict interpretation of the Federal Railroad Safety Appliances Act of 1893 (Section 2), which reads:

That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.

Now, the Supreme Court, in Johnson v. Southern Pacific, announces what is undeniably true--that the legislators who wrote the bill undoubtedly meant for the text to have a comma after 'uncoupled', which would apply the 'without the necessity of men going between the ends of the cars' language to coupling as well as uncoupling. But as I see it, the intent of a legislature isn't read from what the individual legislators said they meant, but by what the legislature actually passed.

So I ended up making the point that by inserting the comma, the Supreme Court actually changed what the law meant, and I didn't think it was proper for them to do that. [1] True, it's very technical, and most members of Congress undoubtedly meant for it to be read as if the comma were there--but it wasn't.

Back at home, I had to start pondering why I felt such revulsion at a comma. Finally, I settled on the fact of that comma being a simple single step towards one of my real annoyances in constitutional law: the 'penumbras and emanations' that are found by 'realists,' particularly in the Due Process clause.

One day I'm going to write a stage play about the Supreme Court Justices, and it's going to have a section that includes this:

JUSTICE KENNEDY: Hmm... so, is there a right to homosexual intercourse? Let us look in the penumbras of the Constitution. Hmm... not there. In the emanations? In its pencil case? No. Let's see, where else? Have I checked behind the Constitution's couch cushions?... a lot of rights have seemed to fall between the cracks there...

I've been told that textualism is a pretty lonely road, especially in law school. Maybe I should just hope it's some kind of mental infection that will go away...

[1] I didn't get the chance to say that for the sake of that case, I don't think it mattered--while it didn't explicitly say, I somehow doubt that the cars that didn't couple automatically would come apart without need for a man to go between the cars.


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you're ridiculous. Relax, man.
Oh, look, it's my favorite anonymous troll... and to think, I'd been missing you.
If ASDF's parents are reading this could they please cut his web access? I think he needs to spend some time with real people of his own age. Anyway, back to Tony, I thought the US was one of the nations where courts were supposed to work out what the lawmakers meant to say when interpreting the law. Now admittedly all I know about this is the runup to the American Civil War, but most of the argument there revolved around whether the founding fathers meant to include blacks in their 'all men are created equal' statement. M
I think we've had this conversation before, Martin, but the founders, that is to say those who signed the Constitution, only have a partial overlap with those who signed the Declaration of Independence, which holds the language you refer to. That slavery was constitutional was pretty explicit (being listed in the Constitution for purposes of, for instance, representation). While it's a bit fanciful as a work of history, we've been reading Gilmores The Ages of American Law as a kind of overview of American legal history, and you might enjoy it. He traces the origins of a pernicious formalism in interpretation to the conflict that otherwise creative judges had over slavery.
I remember that case. . . as I recall the problem was not the coupling but the uncoupling - they solved the whole "without the necessity of men going between the cars" bit by having cars that coupled automatically, then sending people to perch on top of the cars to uncouple them -- not exactly safer than between. Or maybe I'm making that up. Last August is kind of a blur.

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