On 4/23/11, JBoppjr@aol.com <JBoppjr@aol.com> wrote:
The danger Brad and Paul speak of, and others, is
why our Founders sought to make government regulation of campaigns unconstitutional
in the most definitive way: mandating the Congress "shall make no law."
Unfortunately, some judges don't know what "no" means. Jim Bopp
Jim, I don't believe the judicial branch escapes the problem
legislatures have, even if the problem of self-dealing is attenuated
with that fraction of judges who are appointed instead of elected. As
long as judges have the power to interpret the law or Constitution,
they operate, (necessarily) as a kind of meta-legislature for the
following basic reason:
Linguists can confirm, as can one's own personal perusal of a
dictionary, that "simple" words have many more definitions, leading to
greater ambiguity. In response, professions, such as law, create
specialized complex vocabularies that they control the meaning(s) of,
but this comes at the cost of incomprehensibility by the layperson.
Thus, no matter whether the language of law is "plain" or "legalese",
that language is and always will be open to competing interpretations.
Indeed, no case reaches a higher level court unless the legal
language is subject to competing reasonable interpretations.
Appellate courts don't judge facts (generally) and more specifically,
unreasonable competing interpretations would not reach higher courts -
they would be dismissable or sanctionable in lower courts.
To use Jim's example of "no law": historically the language "Congress
shall make no law" has been greatly contested by parties who have not
been sanctioned.
It is unavoidable that judges engage in interpretive acts regardless
of whether they are truly strict constructionists or judicial
liberals. As such, all courts are "activist" courts, differences are
a matter of degree only, and the "activism" is intrinsic, and of
necessity.
Paul Lehto, J.D.
In a message dated 4/23/2011 8:58:41 A.M. Eastern Daylight Time,
lehto.paul@gmail.com writes:
On 4/22/11, Smith, Brad <BSmith@law.capital.edu> wrote:
Dear David,
A constant theme in my scholarship, my legal briefs, and my popular
writing
for many years has been that a major problem with virtually all campaign
finance measures - perhaps *the* major problem - is that they are
particularly prone to abuse for partisan purposes.
This is the intractable problem of election law generally.
Non-campaign finance laws that are nevertheless election laws are made
by incumbents, the vast majority of whom anticipate seeking
re-election under the laws they make for elections.
There is not only partisanship in this, but a large issue regarding
the self-dealing that is inherent in voting on the rules for one's own
re-election campaign. Another very influential group when it comes to
election laws - election officials - have a non-partisan bias to
engage in CYA by, inter alia, avoiding the transparency that is the
predicate condition of accountability.
Rephrased along the lines of the above, I would concur with Brad Smith
that this is perhaps *the* major problem of election law, one that
guarantees that we will be able to discuss, debate and "reform"
election law eternally. Putting on a non-partisan hat and delegating
election rule-making to a "non-partisan" group simply disguises the
partisan preferences at hand (which are likely, but not necessarily,
those favoring "moderation" or "moderate" candidates).
The purpose of elections is solely to measure the will of the people
like a nurse takes a temperature, and not to tamper with the
thermometer to encourage the "correct" readings on the thermometer.
Yet, this "tampering" flows from the unavoidable partisanship of
everyone who would participate in elections, at least absent the
strictest adherence and fidelity to the measurement of the will of the
voters, come what may.
--
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI 49849
lehto.paul@gmail.com
906-204-4026 (cell)
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