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- Xref: sparky misc.legal:23065 alt.censorship:10067 alt.society.civil-liberty:7477 alt.politics.usa.constitution:1525
- Newsgroups: misc.legal,alt.censorship,alt.society.civil-liberty,alt.politics.usa.constitution
- Path: sparky!uunet!elroy.jpl.nasa.gov!ames!agate!boulder!ucsu!ucsu.Colorado.EDU!fcrary
- From: fcrary@ucsu.Colorado.EDU (Frank Crary)
- Subject: Re: Shouting "Movie!" at a Fire Station (Schenck v US)
- Message-ID: <1993Jan22.011520.9966@ucsu.Colorado.EDU>
- Sender: news@ucsu.Colorado.EDU (USENET News System)
- Nntp-Posting-Host: ucsu.colorado.edu
- Organization: University of Colorado, Boulder
- References: <1993Jan20.143807.4762@eff.org> <1993Jan21.035728.25466@ucsu.Colorado.EDU> <1993Jan21.113050.24209@eff.org>
- Distribution: usa
- Date: Fri, 22 Jan 1993 01:15:20 GMT
- Lines: 42
-
- In article <1993Jan21.113050.24209@eff.org> mnemonic@eff.org (Mike Godwin) writes:
- >>I'm assuming the Justices were rational enough to consider the effects
- >>of the ruling.
-
- >Wait a minute--you're saying you want the judges to anticipate the effects
- >of their interpretation of the law and use that in the decision, rather
- >than simply trying to interpret the law itself and deciding the case
- >accordingly?
-
- >That is just the kind of result-oriented judicial activism that people
- >like you condemn.
-
- No, I don't think the a judge should uses the results a ruling will
- have, as part of the reasoning behind an interpertation. That would
- be activism (to base the ruling on a desired result). However, that
- doesn't preclude considering the effects of an interpertation
- _after_ arriving at an interpertation. You have been debating a
- good example of this receintly: Justice Homes "Clear and Present
- Danger" test for freedom of speach. When he first proposed
- it, it appeared to adaquately protect free expression of ideas.
- After looking at it's effects, however, the Court deceided that
- the test was not, in fact, a good interpertation since it didn't
- effectively protect the right, and adopted a different test.
- Both tests were not "activist" interpertations. They were an
- effort to simply interpert the Constitution without basing
- the resoning on some desired result. However, a consideration of
- the results helped the Court choose one over the other. The
- process is essentially the same as a scientist who develops
- a theory (interpertation) and compares it to experimental
- results (the effects of the ruling and the intent of the lawmakers):
- If the two match, everything is fine and he can pubish (rule on
- the case); if they don't, he realizes that there is some flaw in
- his logic, sits back down, and develops a new theory (interpertation).
- The interpertation shouldn't be based on its results, but it's
- validity can (and should) be double-checked by considering these
- effects. (I.e. no matter how well reasoned, an interpertation of
- the First Amendment which allowed the establishment of the
- federally-subsidized "Church of the United States", would be
- a poor interpertation.)
-
- Frank Crary
- CU Boulder
-