Interpretation v. "amendment"
SLevinson at MAIL.LAW.UTEXAS.EDU
Tue Nov 28 15:32:39 PST 2000
Mark Scarberry writes:
This assumes the US S. Ct. agrees that the Fla. S. Ct.
>did not simply interpret the Fla. statutes but rather rewrote them....
For me this evokes a topic that I've brought up before, which is whether we
as professional lawyers can tell the difference between "interpretation"
and "amendment." What Mark is suggesting, I believe, is that the Florida
court illegitimately "amended" the Florida statutory scheme rather than
engaged in good-faith (albeit possibly erroneous) interpretation of a
complex set of seemingly inconsistent directives. Similarly, opponents of
one or another Supreme Court decision (e.g., Blaisdell, Baker v. Carr
and/or Reynolds v. Sims, Hans and/or Alden) would make similar accusations
of courts as "amenders," just as their supporters would say that they were
perfectly legitimate (albeit possibly erroneous) interpretations of the
constitution. My position is that these serve as rhetorical placeholders
and nothing more, at least in the absence of a widely-recognized
professional method of distinguishing "interpretation" and "amendment."
Should the United States Supreme Court actually accept the Bush argument,
then I think it will perhaps be the most important (and, quite possibly,
foolish) opinion in its entire history, since it will have to explain
exactly how we tell the difference (and, of course, will also have to
persuade us that the explanation makes even the slightest bit of sense).
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