05 September 2005

So You Thought Virginia Would Have Conservative Courts . . .

How do you define a conservative court? I would define it as a court which relies on textual interpretation and original intent of constitutional matters. A court which is reluctant to expand the meaning of a statute beyond that which is plainly spelled out in a statute, even if the result would not be optimal or lead to a result everyone agrees is bad. It's the legislature's job to fix a statute as long as it doesn't trespass upon constitutional issues; even when the constitution is trespassed upon a conservative court will not amend the statute, it will merely strike down the section which is unconstitutional and leave the repair to the legislature. Above all, conservative courts sneer at legislative intent arguments, recognizing that statutes are often a compromise between several legislators who have left enough play in the wording so that everyone thinks the statute means what he wants it to mean, and there is never an adequate written explanation of what the majority of the legislators wanted the statute to mean, and that those few legislators who try to develop some sort of written record are probably promoting a viewpoint which they wouldn't have to if the statute supported their interpretation through the canons of interpretation, et cetera, &cetera, etc.

Virginia, that redest of red states, would surely have one of the most conservative courts out there - wouldn't it?

Consider this not atypical passage from Carter v. Commonwealth, 2002, 38 VaApp 116:
Well established "principles of statutory construction require us to ascertain and give effect to the legislative intent." "The plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction; a statute should never be construed so that it leads to absurd results." Thus, "[i]t is a basic rule of statutory construction that a word in a statute is to be given its everyday, ordinary meaning unless the word is a [term] of art." Because the Code of Virginia is "one body of law," we may consult other statutes "using the same phraseology" to assist us in divining legislative intent. "Although penal laws are to be construed strictly [against the Commonwealth], they 'ought not to be construed so strictly as to defeat the obvious intent of the legislature.'"
This one paragraph contains pretty much all the dodges used in Virginia law to avoid giving a statute the written meaning of the statute: legislative intent, absurd results, term of art, use of other statutes to divine legislative intent, obvious intent of the legislature.

Hmmm . . . There seems to be a theme here . . .

[addendum] As well, a conservative court would believe in State rights and interpret things under the State's laws and constitution as much as possible, applying the federal constitution only when it has been imposed upon it by the federal supreme court. What do the courts appellate in Virginia have to say about that?
Jackson v. Commonwealth, 41 Va.App. 211 (2003): Our courts have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution.
Thus, no recourse to the Commonwealth's constitution at all.

OMG! Somebody switched our appellate judges with - shudder - judges from the 9th Circuit! They're going to turn us into California - or worse, remake the whole Commmonwealth in the image of Northern Virginia. We're dooooomed!!!

2 comments:

Have Opinion, Will Travel said...

Surely things have not deteriorated to the point that Virginia and California are indistinguishable?

In all seriousness, your post provoked a few thoughts of my own which I posted over at HOWT. But the abridged version is that I really don't think that the judicial philosophy makes much of a difference in the vast majority of cases. The law is all about rules - Rules of Evidence, Rules of Court, Rules of Procedure, Rules of Statutory Construction, etc.

Judges of any "philosophy" will enforce and not ignore those rules and while, just as a sports official, may call a "looser" or "tighter" game than another official, they may have differing views of what's "close enough for government work" but those differences really don't matter much in the vast majority of cases. Of course, in those few cases where it does matter, it matters a lot.

Anonymous said...

How come it is always someone else that is "ignoring the rules" and nobody says "I am ignoring this rule." I suspect that someone is lying if they claim that only THEY (and their political allies) always follow the rules.