Here’s an interesting little legal issue — one that is apparently easier to resolve properly if you have not had legal training. California Penal Code section 288.7(a) reads as follows : Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life. That simple language in bold is apparently too difficult for some judges to understand. Our hypothetical defendant is 19 years old. The evidence shows that he met the victim at her 10th birthday party. One week later, he had sex with her. Is he subject to the penalties provided by this law? As a common sense person, dear reader, you are saying: of course he is! The victim was 10 when he had sex with her. She just had her 10th birthday! And the penalties apply if the victim is 10 or younger. What’s the problem? It turns out that at least one California court saw a problem. That court said “10 years of age or younger” means “exactly 10 years old, not one day more” . . . or younger. In other words, the day after the victim’s birthday, she is no longer “10 years of age of younger” . . . according to these legal geniuses. That conclusion is, of course, absurd. If you asked this girl how old she is, she would say: “ten.” If you asked her mother how old she is, she would say: “ten.” If you asked all her friends and relatives how old she is, they would say: “ten.” If the statute says the victim must be “10 years of age OR younger” and she is “10 years of age,” then the statute applies. I don’t care what the legislative “intent” was. I don’t care about the “rule of lenity” or any other mumbo jumbo. Not in this case. Because here the language is clear. The girl is ten. The statute applies. Next case! This is what I mean when I stress that “legislative intent” should not matter to the interpretation of a statute. This court actually bemoaned the fact that there was no legislative history available to help out. The court also noted that several other cases in other jurisdictions had resolved similar issues in the same silly way (as well as several that resolved it properly). The court further noted that, in many cases, “courts have been able to resolve the issue on the basis of an illuminating legislative history.” Legislative history. Aaaaaargh! So, let’s say a legislator didn’t like the law, and was pushing to make the victim’s age “11 years or younger” before harsher penalties kicked in — but ended up voting for the statute in a pander to the public. He could simply have a staffer slip something into the legislative record talking about how “10 years or age or younger” really excludes anyone who is 10 years and a day. And one suspects certain idiot judges would pay attention to that kind of dishonest crap. Not me. To me, the words mean what they mean. Trying to divine some “legislative intent” from clues in speeches and notes from committee meetings is a fool’s errand. The plain language should control. Luckily, sanity may win out. The California Supreme Court has granted review and the case may not be cited. At least one other court has come out with a sensible ruling going the proper way. But when you throw common sense out the window, the law can take the most obvious, plain meanings of words, and twist them into something that would make the man on the street furrow his brow and say “What now??” It’s not always lawyers who do this, mind you. But they seem to be mighty good at it.
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Another Example of How Lawyers Ignoring the Plain Meaning of Language Go Astray
There’s an argument that’s circulating among liberals that the challenge to the constitutionality of the health care law hinges on mere semantics. “Despite the overheated rhetoric that’s been tossed around in this debate, I don’t believe our forefathers risked their lives to make sure the word ‘penalty’ was eschewed in favor of the word ‘tax,’” Ezra Klein remarked . I think it’s worth addressing this point, because doing so clarifies what’s actually at stake in these court cases. In defending the law against legal challenges, the Obama administration first argued that the mandate was justifiable under the Commerce Clause, but it later advanced the fallback argument that it’s also constitutional because of the federal government’s power to tax to provide for the “general welfare.” While judges who have ruled on the merits of these arguments so far have split 2-2 on the Commerce Clause question, they have unanimously rejected the taxing power argument. It’s true that Democrats went out of their way to call the fine a “penalty” in the legislation to avoid the more politically toxic term “tax” – and that has figured into these decisions – but there’s a much more important reason why the taxing power argument has been thrown out. The reason is that the fine serves a primarily regulatory function, whereas to be justified under the government’s taxing power its primary purpose must be to raise revenue. This has figured into the opinions of the judges who have already ruled on the case. “Although purportedly grounded in the General Welfare Clause, the notion that the generation of revenue was a significant legislative objective is a transparent afterthought,” Judge Henry Hudson wrote . “The legislative purpose underlying this provision was purely regulation of what Congress misperceived to be economic activity. The only revenue generated under the Provision is incidental to a citizen’s failure to obey the law by requiring the minimum level of insurance coverage.” Judge Norman Moon of Michigan, who upheld the mandate on Commerce Clause grounds, rejected the taxation power argument along similar lines. While Moon did note the fact that the legislation used the word “penalty,” he went on to write ( PDF ), “Even more importantly, the assessments function as regulatory penalties – they encourage compliance with the Act by imposing a punitive expense on conduct that offends the Act.” He goes on to write, “the statutory fees were enacted in aid of Congress’ regulatory powers under the Commerce Clause… Although the penalties are expected to raise revenue… they were not included among the ‘Revenue Provisions’ of Title IX of the Act, which indicates that generating revenue was not their main purpose. Indeed, Defendants do not seek to deny the regulatory purpose of the penalties.” Whatever name you choose to give it, the fine is merely a means of punishing those who don’t comply with the mandate. As Georgetown law professor Randy Barnett noted in an email exchange on this matter, “the MANDATE that everyone buy insurance cannot possibly be characterized as a tax.
From Americans for Tax Reform:
A word search of Sen. Harry Reid’s 2,074-page Senate healthcare bill (H.R. 3590) reveals that the term “tax” is used 183 times, “taxable” is used 164 times, and “excise tax” is used 8 times.
Other terms of interest are as follows:
Senate Healthcare Bill (H.R. 3590)
Term Number of uses
“Tax” 183 times
“Taxable” 164 times
“Excise tax” 8 times
“Taxes” 17 times
“Fee” 152 times
“Penalty” 115 times
“Require” 166 times
“Must” 45 times
“Shall” 3,607 times
I thought we were going to get free health care?
