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Essay on Letter of Law vs Spirit of Law

“Law students, having drunk at this intoxicating well,” come away thinking that the highest function of the judge is “devising, out of the brilliance of one’s own mind, those laws that ought to govern mankind. How exciting!”

Now to fully understand the meaning behind this quote by Justice Scalia, it is important to note the origins of judicial-policy making. Judicial policy-making arose in the old common-law system in England where judges, unconstrained by any means of a written constitution exercised the “exhilarating” function of creating law! Alas, American students who studied in England brought it back, so that eventually it spread to modern American law schools where impressionable young law students eagerly grab at this idea like a new toy.

With that in mind I will now move along to my definitions, which I have acquired, from Black’s Law Dictionary and Richard Heymann, a professor at the University of Wisconsin Law School to clarify the resolution:

When in conflict the letter of the law ought to take priority over the spirit of the law. When in conflict between the letter of the law and the spirit of the law are situations in which judges seek to substitute their own prejudices and biases for the will of the legislature or the constitution.

Letter of the Law refers to the strict literal meaning of the law, contrary to the millions of twists that could be put on it by people.

Spirit of the Law is defined as the twists on the law opposed to its literal meaning. Spirit is defined by Webster as (1) an inclination or tendency (2) a particular mood or emotional state characterized by vigor or animation (3) the predominate mood of an occasion or period- in sum spirit is simply a broad word referring to the general mentality surrounding a particular event. Thus the spirit of the law is the predominant mood or inclination which existed at the time the law was adopted.

I would also like to bring up another definition, one that is not in the resolution but relates much to my case and that is textualism. Textualism is not to be confused with liberalism, nor a driving machine but instead compared with Lady Justice who with her eyes veiled applies the law.

The Affirmative offers the value of Justice, which is, defined by Webster as The rendering to everyone his due or right. Furthermore, my criterion is Consent of the Governed. Instead of allowing a group of appointed actors to take the law into their hands, the letter of the law allows for an equal, elected law system. For this purpose I offer the following contentions:

Contention 1: Affirmation of the resolution is sound and logical.

Sub Point A: There is no clear definition for the Spirit of the Law. First of all it is necessary to look at the U. S. Congress. 535 people are responsible for voting pro or against a bill. It is naïve to believe that such a large number of people could hold to one solid belief while voting. Therefore the concept of legislative intent is misleading. Even in the situation that there was a collective intent, there is no way to precisely determine what the legislature intended. However the goal of a textualist is clear and just, as associate professor of law, Nicholas S. Zeppos would explain it; “It seeks to eliminate what it views as the judges injection of his or her own values into the statute of being interpreted.” The only way that the spirit of the law can be determined is through examining the letter of the law. Because the letter of the law includes the preamble to any bill passed by Congress, that itself establishes legislative intent without having to look to committee reports and hearings.

Sub Point B: Plain meaning best deals with the particular issues being dealt with. According to Justice Scalia a legal text’s apparent plain meaning must be the alpha and omega in a judge’s interpretation. The apparent plain meaning is that which any ordinary English speaking person could understand. This principle has not only been upheld by Scalia, but the British House of Lords and Justice Oliver Wendell Holmes who followed the same idea in the late nineteenth and early twentieth centuries.

Sub Point C: Legislative History is becoming outdated In Stanford Law Review, a series of article show a study conducted in 1981. Both Judge Wald and Professor Thomas Merrill surveyed frequency with which the Court has been consulting legislative history in its statutory interpretation opinions. The results? Collectively, the study shows a notable decline in the Court’s use of committee reports, floor statements, and similar materials. Further, Merrill’s analysis of the 1922 Term identified an even more striking decline. He reported that in the 1992 Term, the court used legislative history only 18% of the time in its statutory cases! While legislative history use is declining, textualism, literal interpretation is being used more and more.

Contention 2: The idea that we are under a “living Constitution” is a false concept.

Sub Point A: Living Constitution is merely an excuse for judges to subvert it. According to Justice Scalia, those who believe in the living constitution have transformed constitutional interpretation into a common law method of ruling. The idea of a Living Constitution is not only undemocratic but it allows judges to at will act as legislators! This poses a threat to the Bill of Rights: “If the Courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process see to that. This of course, right here is the end of the Bill of Rights, whose very purpose is to protect against the majority.

Sub Point B: Constitutional Principles do not change. Rather, the constitution was established to prevent change! The purpose of a constitution is to set certain rights in such a manner that future generations cannot readily take them away. Any change MUST be written as an amendment, through the checks and balances of government. In other words, it must be written.

Contention 3: Affirming the resolution is democratic.

How many times have you heard the expression “But I had good intentions…” You’ve probably retorted with something along the lines of “Your intentions don’t matter, it’s the outcome!” Likewise when interpreting the law, it is necessary to take the textualist approach or as Michael Slade, of Harvard University would put it–the letter of the law, not legislators’ “unexpressed intentions” should govern judges. We should not be governed by what the lawmaker MIGHT have meant over what the lawmaker has established. Government by unexpressed intention is similar to tyranny. It is the law and only the law that governs not the intent of the lawgiver. Further, in a democracy we have a separation of powers. Justice Scalia explains that the constitutional role of the legislature is to enact, not to have intent of purposes. He continues that the role of the courts is to apply the words and only the words, without regard to arguments of fairness or political equilibrium.

It is vital to keep in mind that federal judges are appointed not elected. By what right are they given the power to make the laws that bind other citizens? In order to uphold justice in this nation it is necessary to maintain balance of power and in order for equal, democratic trials, it is necessary to stick to the textualist approach of interpreting the Constitution.

In conclusion in order to uphold Justice and Consent of the Governed, I urge you to affirm the resolution.

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