Sunday, February 26, 2012

Post-Semiotic Law

I worry for judges. Their jobs are getting increasingly difficult as legislatures are working to undo 50 years of administrative-made law making. Around the country, Tea Party candidates elected in 2010 are unwinding the administrative balance struck by regulatory agencies on state and local levels, substituting the will of one-term legislators for the judgment of career civil servants. That is the platform that they ran on: "smaller government," less technocracy, and a revolt against expertise.

The example in the news this week is the Virginia Republican Party's attempt to force women to undergo invasive ultrasounds before receiving an abortion. Though this bill likely won't become law, thanks to fantastic organizing among opponents in Virginia as well as the national spotlight from the Daily Show and Saturday Night Live, a costly modification to it is still on its way through the legislature. In this case, the law is taking a hatchet to the judicial-made rule that women must have access to reproductive health care without "undue burden." An unnecessary and costly ultrasound, is at best an undue burden. Of course the original version of the bill, requiring unnecessary vaginal penetration, was substantially larger of a burden and even more inappropriate.

The legislator who introduced the bill, and the governor who championed it, have both admitted that they did not know that the language would have required OB/GYNs to insert a plastic instrument into a woman's vagina. In fact, they had shut out testimony from doctors and experts in health who would have explained that detail to the lawmakers. The bill was fast-tracked to avoid such a discussion, and it was only derailed by effective protest and mockery.

This bill came close to becoming law. One chamber of the legislature had passed it, and other other was days away from sending it to the governor's desk for his signature.

Statutory interpretation is hard enough for judges even in the best of situations. The process requires searching historical records to understand the direction of movement that the change creates as well as its magnitude. It requires a careful combing of legislative history, or the understanding of the dynamics internal to the legislature affecting the bill's language. These clues provide some account of 'legislative intent' which can help clarify meaning where the text of a law is ambiguous on a certain question. However ambiguous a statute's language might be, however, if it occupies the field around a question at issue in a case, it must be the primary source of law on the question. Otherwise, courts go beyond counter-majoritarianism. At the point where courts do not consult democratically-made law, they become dictatorships of opinion.

Written law has served, since the seminal Hammurabi Code, as a semiotic system that creates reasonable expectations for members of a society. Follow this prescription, and the law will favor you; ignore that sanction, and you will be punished. Written rule-making now has many contributors, from legislators to administrative agencies to judges. Lawmakers ideally strive to create a rational and coherent set of laws. A more accurate description of the semiotic-law period is that the legal code was a contested field in which lawmakers strove to enshrine competing visions of society. This is where statutory interpretation began to play a crucial role; which side won, what compromise was necessary, and how can we rationalize the new update into a coherent story?

We have entered a post-semiotic period of the law. The symbols of legislative action are losing their innate meanings. The plain text of the Virginia law would have required a far more invasive procedure than the sponsor of the bill had envisioned. A statutory interpretation which would have accurately reflected the meaning of the legislature could not have appealed to the language of the text or even its context in medical practice and society. Hyperpartisanship has created an environment in which the constitutional system of semiotics cannot be applied. The situation is dangerous. Judges must tread carefully, but appealing to the traditional, idealized rules of statutory interpretation may not be appropriate in every case. Legislators can prevent this situation by doing their jobs, resorting to deliberation, and ratcheting down partisan maneuvers. The spirit of democratic cooperation help us all!

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