- “Force, no matter how concealed, begets resistance.” – Lakota Siox saying
I do not look to Washington for answers nor do I concede any authority to them other than in their constitutionally enumerated powers. Until 'we' all start taking that approach it will not matter who gets elected nor what laws are enacted nor repealed; nothing will change.
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- DG,You are following the Ayn Rand fiction of Takers and Makers - that the system must collapse or the moochers will not yield to the changes and they plus special interest groups = a majority. That book was fiction when written and it remains fiction today. Yes like 1984 you can related some of it to the current reality but that does not make it factual. Like Horoscopes - they are very general and can be viewed to create most normal situations.Let me outline very briefly how AV should work in the current paradigm.The people in the 50 States need to go to the State legislators one on one asking for them assist in our effort to restore States powers and rights to protect we the people from an OPPRESSIVE Central government. We need 50% plus one legislator to passe the item.The Central government is violating the Constitution using clauses and the Courts to usurp the rights of the people to be governed by each Separate Republic as so stated below
Article 4 - The States
Section 4 - Republican GovernmentThe United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.So as you see each State is a independent Republic [nation for the example of the Compact] The States created the Constitution and therefor own same. The Federal government is one of LIMITED powers shown in Article I section 8. All other powers are vested in the States and then the people.Now we are at the point where the State legislators are to represent the people as they are the closest to the people. Each State Republic is charged with protecting the people per the many letters and papers of the Founders, Framers, and Ratifiers. Article V and the 10th amendment were put in place for a reason and we can now see the reason - Freedoms and Liberties.Freedoms and Liberties are well known and understood by the many people of the many States - the majority of all State Legislators would support restoring Freedoms and Liberties to the State from the DC Central dictators. Look at our schools - as you said they are failed well those rules and regulations that destroyed the little red school house system came from the Federal government dictates and the use of the courts through the 14th amendment - they sized control of the school from the locals.The 16th amendment allows the DC machine to raise all the money they need to bribe the many voters so we effectively become a democracy. Remove the money and we starve the beast.The American Republic will endure until the day Congress discovers that it can bribe the public with the public's money.
Alexis de TocquevilleThe 17th amendment makes the Senate just another House of representatives leaving the States without a seat at the table. It is like if we let the UN make all our laws using a majority vote to create rules and regulations for all independent Nations. States are Independent Republics so they are being ruled by popular vote and the small states are being dictated to by the big population center states. This being said some States did vote for Senators prior to the 17th but then that would be a State right would it not?Let us now construct the 28th amendment using the 21st as a template that is proven to function in the Article V method -Amendment 21 - 18th Amendment Repealed
1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.Only number I. is needed for our purpose so here is the 28th amendment -The 14th, the 16th and the 17th amendments of the Constitution of the United States are hereby repealed.
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- We all need to start contacting our [Local] State legislation members - just think how powerful the message will be if they receive hundreds of thousands of individual requests to use the Article V powers to repeal the 14th, 16th and 17th amendments - we need to explain that this action will restore our States rights and bring the money back home for our local control.The courts again today used the 14th amendment to put down the Louisiana school voucher program. Yes it does matter, the Congress and Executive use money to purchase States agreement to limit our freedoms and liberties to run our own schools, churches, local governments, land use and zoning, water rights, harvesting our natural resources for industrial uses. Yes all this has been co-opted by the Federal Central Government and their one size fits all programs and laws - well what NY or California needs is not required in most RED states.Most State Representatives are well aware of the Federal government using the Supremacy clause force [via Courts] the State to act in a certain manner. The Federal then bribe us with money like education funds to then control our schools, the same with game management, fishing rules, farming rules, development rules, employment rules, wages paid for work, health care insurance, - if the State takes one dime they have agreed and now are contracted to do the wishes of the Federal government. Look at highways, airports and even railroads all controlled in DC.The local elected officials all know these problems but are hesitant to start a fight as they do not want to lose the Federal assistance money for sewer and water systems plus all the previously mentioned items. See we can not vote new people to DC and get out of the problems -we have tried that for 50 years and we have failed to even alter the direction. As Einstein said: continuing to repeat over and over for decades expecting a different result is a form of insanity.Learn about how Article V can be used by the 38+ State legislatures to save the REPUBLIC. It is really not that complicated we the people have a lot of help already in place - keep in mind that 28 States sued over the Constitutionality of Obamacare. There are 6 or 8 other States that have separate actions in the courts as we speak. So, if we the people bring pressure and support to the current legislature we can bring the corrections into the world of reality. yes - it will cause a lot of disruption but those issues can be worked out - Each State must pay it's share of the national debt and the cost of the military but the States would be in control as they have the money in hand not the Federal government.The savings by eliminating the duplication, thousands of agencies and sub-agencies will save trillions over the next 10 years. It will eliminate the high price of government pensions - let them participate in 401Ks and SS like the citizens. Eliminate special pensions for elected officials again a 401k and SS should be good enough for one if it is good enough for we the people.Many here will be working on a presentation that all can take to their own legislator and put it to them that we expect this to be enacted as it is the only way to restore Freedom and Liberty. If they can not support then we must ask them for their alternate plan for the current path leads to a Dictatorship after the nations goes into hyper inflation, making our currency worthless letting them print enough to pay off all debts.The time is now we will succeed as a group or we shall surly fail individually. Just as the Founders said - we might hang together but we will surly hang individually.
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- Shall is a directive order - not optional "may would be used if optional". In Fact it is my opinion and the opinion of some lawyers I have debated That 38 State legislatures passing a amendment can just take it to the Congress using the written procedure in place and it would become the law of the land.The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.If the 14-16-17 plan works and they are repealed then NDRA would not be needed as the Senators would again ONLY represent the State legislatures - they become the seat at the table to protect States rights and Freedoms. Just look at how each Senator has voted and I will guarantee that they all have voted for items that usurp the Constitution as they are just representing many millions and most just keep reelecting them as they have more power to bring more money home due to Seniority. IMO this will be a simple sell when shown that we are only changing who the Senators are in Congress to protect and that is the Sovereign Republic - State - the House of Representative is the peoples house. Again have any tried to communicate with a Senator - you get some lowly intern and a form letter - now if you went to see you local neighbors Senators and Legislators and said can you talk some sense into Senator McCain or Senator Graham = who would get more results?The 14th takes a little work to explain that the FF&R did NOT intend for the Bill of Rights to apply to the States - it has been used for that purpose and that is how the courts order busing school spending, classes, bibles on campus, voucher program rules, and there is a lot of information available but we need to stay out of the woods - it would restore States rights and powers to protect we the people and our Freedoms and Liberties.The 16th is the slam dunk with the people for it ends the IRS and lets the States raise the money to provide for a smaller and limited Federal Government. No more jackboots taking your neighbors home and business. No more automatic tax increases ever few years to pay the costs of all the new agencies created by DC. Keep in mind that there is still a "DRAFT BOARD OFFICE" STILL A CIVIL DEFENSE DEPARTMENT [BOMB SHELTERS?] - There are hundreds more.So in closing we must KISS this idea and stay out of the weeds or we will end up like talking to Atlas - just read the entire 21st amendment it is just that simple - click on the history below the act.Ratification ConventionsThe normal course of events, when an amendment to the Constitution has been desired by the people, is for Congress to pass the amendment and for the state legislatures to then ratify. Congressional proposal of the amendment is by a two-thirds majority vote in both houses. State ratification is by three-fourths majority.The Constitution does provide for one other way to ratify: by convention. A state convention differs from the state legislature in that it is usually an entirely separate body from the legislature. This introduces a different political dynamic into the amendment process.The only time that conventions have been used was in the case of the 21st Amendment, which overturned the 18th Amendment. The 18th abolished alcoholmanufacture or sales on a national scale. The 21st repealed the 18th, stating instead that each state shall have the ability to set its own laws regarding liquor. The text of the 21st specifically stated that it would have to be ratified by conventions held in each state:3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.Why specify conventions over legislatures, as every other amendment had been ratified up to then? The thought was that the people of the conventions, which would typically be average citizens, would be less likely to bow to political pressure to reject the amendment than elected officials would be. Note that the Supreme Court has ruled that a popular referendum is not a substitute for either the legislature nor a convention, nor can a referendum approve of or disapprove of the legislature's or a convention's decision on an amendment.
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- We all need to start contacting our [Local] State legislation members - just think how powerful the message will be if they receive hundreds of thousands of individual requests to use the Article V powers to repeal the 14th, 16th and 17th amendments - we need to explain that this action will restore our States rights and bring the money back home for our local control.The courts again today used the 14th amendment to put down the Louisiana school voucher program. Yes it does matter, the Congress and Executive use money to purchase States agreement to limit our freedoms and liberties to run our own schools, churches, local governments, land use and zoning, water rights, harvesting our natural resources for industrial uses. Yes all this has been co-opted by the Federal Central Government and their one size fits all programs and laws - well what NY or California needs is not required in most RED states.Most State Representatives are well aware of the Federal government using the Supremacy clause force [via Courts] the State to act in a certain manner. The Federal then bribe us with money like education funds to then control our schools, the same with game management, fishing rules, farming rules, development rules, employment rules, wages paid for work, health care insurance, - if the State takes one dime they have agreed and now are contracted to do the wishes of the Federal government. Look at highways, airports and even railroads all controlled in DC.The local elected officials all know these problems but are hesitant to start a fight as they do not want to lose the Federal assistance money for sewer and water systems plus all the previously mentioned items. See we can not vote new people to DC and get out of the problems -we have tried that for 50 years and we have failed to even alter the direction. As Einstein said: continuing to repeat over and over for decades expecting a different result is a form of insanity.Learn about how Article V can be used by the 38+ State legislatures to save the REPUBLIC. It is really not that complicated we the people have a lot of help already in place - keep in mind that 28 States sued over the Constitutionality of Obamacare. There are 6 or 8 other States that have separate actions in the courts as we speak. So, if we the people bring pressure and support to the current legislature we can bring the corrections into the world of reality. yes - it will cause a lot of disruption but those issues can be worked out - Each State must pay it's share of the national debt and the cost of the military but the States would be in control as they have the money in hand not the Federal government.The savings by eliminating the duplication, thousands of agencies and sub-agencies will save trillions over the next 10 years. It will eliminate the high price of government pensions - let them participate in 401Ks and SS like the citizens. Eliminate special pensions for elected officials again a 401k and SS should be good enough for one if it is good enough for we the people.Many here will be working on a presentation that all can take to their own legislator and put it to them that we expect this to be enacted as it is the only way to restore Freedom and Liberty. If they can not support then we must ask them for their alternate plan for the current path leads to a Dictatorship after the nations goes into hyper inflation, making our currency worthless letting them print enough to pay off all debts.The time is now we will succeed as a group or we shall surly fail individually. Just as the Founders said - we might hang together but we will surly hang individually.
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Statutory interpretation
From Wikipedia, the free encyclopedia(Redirected from Rules of construction)Judicial Interpretation Forms - Statutory interpretation
General Rules of Interpretation General Theories of Interpretation Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by the legislature or to delegated legislation such as administrative agency regulations.Contents
[hide][edit]General principles
[edit]Meaning
The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Legislation may contain uncertainties for a variety of reasons:- Words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time.
- Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult.
- Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups.
Therefore, the court must try to determine how a statute should be enforced. This requires statutory construction. It is a tenet of statutory construction that the legislature is supreme (assuming constitutionality) when creating law and that the court is merely an interpreter of the law. Nevertheless in practice, by performing the construction the court can make sweeping changes in the operation of the law.[edit]Conflicts between sources of law
Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute.- U.S. Supreme Court: "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254.
- Supreme Court of Virginia: "Every part of an act is presumed to be of some effect and is not to be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 335, 149 S.E. 541, 542 (1929).
- Supreme Court of Alaska: "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage."Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996);
- Arkansas Supreme Court: "When reviewing issues of statutory interpretation, we keep in mind that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent." Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619. (2006)
- Supreme Court of New Mexico: "The principal command of statutory construction is that the court should determine and effectuate the intent of the legislature using the plain language of the statute as the primary indicator of legislative intent." State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) “The words of a statute . . . should be given their ordinary meaning, absent clear and express legislative intention to the contrary,” as long as the ordinary meaning does “not render the statute’s application absurd, unreasonable, or unjust.” State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) When the meaning of a statute is unclear or ambiguous, we have recognized that it is “the high duty and responsibility of the judicial branch of government to facilitate and promote the legislature’s accomplishment of its purpose.” State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994). - New Mexico v. Juan, 2010-NMSC-041, August 9, 2010
- U.S. Court of Appeals for the Second Circuit: "As in all statutory construction cases, we begin with the language of the statute. The first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) "[U]nless otherwise defined, statutory words will be interpreted as taking their ordinary, contemporary, common meaning." United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir. 1994).
Federal jurisdictions may presume that either federal or local government authority prevails in the absence of a defined rule. In Canada, there are areas of law where provincial governments and the federal government have concurrent jurisdiction. In these cases the federal law is held to be paramount. However, in areas where the Canadian constitution is silent, the federal government does not necessarily have superior jurisdiction. Rather, an area of law that is not expressly mentioned in Canada's Constitution will have to be interpreted to fall under either the federal residual jurisdiction found in s. 91 -- known as the Peace, Order and Good Government clause -- or the provinces residual jurisdiction of "Property and Civil Rights" under s. 92(10) of the 1867 Constitution Act. This contrasts with other federal jurisdictions, notably the United States and Australia, where it is presumed that if legislation is not enacted pursuant to a specific provision of the federal Constitution, the states will have authority over the relevant matter in their respective jurisdictions.[edit]Internal and external consistency
It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act. The ejusdem generis (or eiusdem generis, Latin for "of the same kind") rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. The rule results that where "general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated." 49 F. Supp. 846, 859. Thus, in a statute forbidding the concealment on one's person of "pistols, revolvers, derringers, or other dangerous weapons," the term "dangerous weapons" may be construed to comprehend only dangerous weapons of the kind enumerated, i.e., firearms, or perhaps more narrowly still, handguns. A hypothetical court may have to determine whether a sword, a Japanese throwing star, or a Taser fit into the "other" category of the statute. Here, the term "other dangerous weapons" must be given a meaning of the "same kind" as the word of established meaning.A statute shall not be interpreted so as to be inconsistent with other statutes. Where there is an inconsistency, the judiciary will attempt to provide a harmonious interpretation.[edit]Statements of the legislature
Legislative bodies themselves may try to influence or assist the courts in interpreting their laws by placing into the legislation itself statements to that effect. These provisions have many different names, but are typically noted as:- Findings;
- Declarations, sometimes suffixed with of Policy or of Intent; or
- Sense of Congress, or of either house in multi-chamber bodies.
These provisions of the bill simply give the legislature's goals and desired effects of the law, and are considered nonsubstantive and non-enforcable in and of themselves.[1][2][edit]Canons
Also known as canons of construction, canons give common sense guidance to courts in interpreting the meaning of statutes. Most canons emerge from the common law process through the choices of judges. Proponents of the use of canons argue that the canons constrain judges and limit the ability of the courts to legislate from the bench. Critics argue that a judge always has a choice between competing canons that lead to different results, so judicial discretion is only hidden through the use of canons, not reduced.[edit]Textual
Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names.- Plain meaning
- When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. United States, 242 U.S. 470 (1917), reasoning "[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."
- Ejusdem generis ("of the same kinds, class, or nature")
- When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).
- Expressio unius est exclusio alterius ("the express mention of one thing excludes all others")
- Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as".
- In pari materia ("upon the same matter or subject")
- When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.
- Noscitur a sociis ("a word is known by the company it keeps")
- When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.
- Reddendo singula singulis ("refers only to the last")
- When a list of words has a modifying phrase at the end, the phrase refers only to the last, e.g., firemen, policemen, and doctors in a hospital.
- Generalia specialibus non derogant ("the general does not detract from the specific")
- Described in The Vera Cruz (1884) 10 App. Cas. 59 as: "Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any evidence of a particular intention to do so." This means that if a later law and an earlier law are potentially—but not necessarily—in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute. Lawmaking bodies usually need to be explicit if they intend to repeal an earlier law.
[edit]Substantive
Substantive canons instruct the court to favor interpretations that promote certain values or policy results.- "Charming Betsy" Canon
- National statute must be construed so as not to conflict with international law. See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804): "It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains..."
- Interpretation in Light of Fundamental Values
- Statute does not violate fundamental societal values. See, for example, Holy Trinity Church v. United States, 143 U.S. 457 (1892).
- Rule of Lenity
- In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant. See McNally v. United States, 483 U.S. 350 (1987); See, e.g., Muscarello v. U.S., 524 U.S. 125 (1998) (declining to apply the rule of lenity); Evans v. U.S., 504 U.S. 255 (1992) (Thomas, J., dissenting); Scarborough v. U.S., 431 U.S. 563 (1977) (Stewart, J., dissenting); See United States v. Santos (2008).
- Avoidance of abrogation of state sovereignty
- See Gregory v. Ashcroft, 501 U.S. 452 (1991); see also Gonzales v. Oregon, 546 U.S. 243 (2006); see also Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003)
- "Indian" Canon
- National statute must be construed in favor of Native Americans. See Chicksaw Nation v. United States, 534 U.S. 84 (2001): "statutes are to be construed liberally in favor of Indians with ambiguous provisions interpreted to their benefit." This canon can be likened to the doctrine of contra proferentem in contract law.
[edit]Deference
Deference canons instruct the court to defer to the interpretation of another institution, such as an administrative agency or Congress. These canons reflect an understanding that the judiciary is not the only branch of government entrusted with constitutional responsibility.- Deference to Administrative Interpretations (US Chevron deference)
- If a statute administered by an agency is ambiguous with respect to the specific issue, the courts will defer to the agency's reasonable interpretation of the statute. This rule of deference was formulated by the United States Supreme Court in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).
- Avoidance Canon (Canon of Constitutional Avoidance)
- If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the US, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts.[3][4]
- Clear statement rule
- When a statute may be interpreted to abridge long-held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it. This rule is based on the assumption that the legislature would not make major changes in a vague or unclear way, and to ensure that voters are able to hold the appropriate legislators responsible for the modification.
- Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, aka "Last in Time")
- When two statutes conflict, the one enacted last prevails.
[edit]Criticism
Critics of the use of canons argue that canons impute some sort of "omniscience" to the legislature, suggesting that it is aware of the canons when constructing the laws. In addition, it is argued that the canons give a credence to judges who want to construct the law a certain way, imparting a false sense of justification to their otherwise arbitrary process. In a classic article, Karl Llewellyn argued that every canon had a "counter-canon" that would lead to the opposite interpretation of the statute.[7]However, it could be argued that the fundamental nature of language is to blame for the problem of "for every canon, a counter." Interpreting whether a statute applies to a given set of facts often boils down to analyzing whether a single word or short phrase covers some element of the factual situation before the judge. The expansiveness of language necessarily means that there will often be good (or equally unconvincing) arguments for two competing interpretations. A judge is then forced to resort to documentation of legislative intent, which may also be unhelpful, and then finally to his or her own judgment of what outcome is ultimately fair and logical under the totality of the circumstances. Canons of statutory construction give judges the ability to decide questions of statutory interpretation that necessarily rely on an element of judicial discretion.[edit]European perception
Following the German scholar Friedrich Carl von Savigny (1779-1861) the four main interpretation methods are:- Grammatical interpretation: using the literal meaning of the statutory text ("grammatical" is actually the wrong word, but it is commonly used for this trype of interpretation).
- Historical interpretation: using the legislative history, to reveal the intent of the legislator.
- Systematic interpretation: considering the context of provisions, if only by acknowledging in which chapter a provision is listed.
- Teleological interpretation: then the purpose of the law is considered.
It is controversial whether certain interpretation methods must be preferred. Germans prefer a "grammatical" (literal) interpretation, because the statutory text has a democratic legitimation, and "sensible" interpretations are risky, in particular in view of German history. "Sensible" means different things to different people. The common law perception that courts actually make law is very different. All of the above methods seem "logical": it seems frivilous to ignore the literal text, but also to ignore the intent of the legislator, or the system of the statutes. So for instance in Dutch law, NO general priority sequence for the above methods is recognised. It should be noted that the freedom of interpretation largely varies by area of law. Criminal law and tax law must be interpreted very strictly, and never to the disadvantage of citizens, but liability law sometimes is even interpreted contra legem, because here (usually) both parties are citizens.[edit]Philosophies
Over time, various methods of statutory construction have fallen in and out of favor. Some of the better known rules of construction methods are:- The Golden rule
- The Literal rule
- The Mischief rule
- The Purposive approach
[edit]See also
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- Friends, as the Founders said: NOW IS THE TIME TO COME TO THE AID OF YOUR NATION.
Think back to 1775 and INDEPENDENCE HALL in Philadelphia a small group of men held a secret meeting to discuss rejection of tyranny from the King. That rejection would be defined as Revolution and possibly war to obtain FREEDOM AND LIBERTY. Well, today a small numbers of groups and think tanks are again meeting to reject tyranny and a method to restore the ORIGINAL CONSTITUTION as authorizing a LIMITED Federal weak government with few enumerated powers.These men were not convinced that things could not be worked out to remain a British State, the following describes what started the process and how long it took to end in a real Constitution that they intended to last forever creating a Free Independent REPUBLIC.Benjamin Franklin had put forth the idea of such a meeting the year before but was unable to convince the colonies of its necessity until the British placed a blockade at the Port of Boston in response to the Boston Tea Party in 1773. All of the colonies sent their delegates except Georgia, which had its own troubles and needed the protection of British soldiers. Most of the delegates were not yet ready to break away from Great Britain, but they wanted the British King andParliament to act more fairly. Convened in response to the Intolerable Acts passed by the British Parliament in 1774, the delegates organized an economic boycott of Great Britain in protest and petitioned the King for a redress of grievances. The colonies were united in their effort to demonstrate their authority to Great Britain by virtue of their common causes and through their unity, but their ultimate objectives were not consistent. Pennsylvania and New York had sent delegates with firm instructions to pursue a resolution with Great Britain. While the other colonies all held the idea of colonial rights as paramount, they were split between those who sought legislative equality with Britain and those who instead favored independence and a break from the Crown and its excesses. On October 26, 1774 the First Continental Congress adjourned but agreed to reconvene in May 1775 if Parliament still did not address their grievances. In London, Parliament debated the merits of meeting the demands made by the colonies; however, it took no official notice of Congress's petitions and addresses. On November 30, 1774, King George III opened Parliament with a speech condemning Massachusetts and the Suffolk Resolves. At that point it became clear that the Continental Congress would have to convene once again.[2]Americans today face the same issue but the Federal behemoth has replaced the king but is no less demanding and inflecting unconstitutional taxes on the people. Limiting Freedoms and rights; reducing Liberties on all fronts including the right to own property and do on it what you please. Yes, the issues are very similar and the method of correction is going to require the dedication of less than half of the population as it did back then- We must reject the usurped powers and then use the tools of the Founders - Framers and Ratifiers the 10th amendment and then the Article V State amendment process to repeal the offending oppressive amendments namely the 14th, 16th, and 17th.The repealing of these articles of Amendment will restore the powers given the States and the people which include all things not specifically enumerated in the Article I section 8. All items that the Federal government now does can be privatized or assumed by each individual State as they desire. Some or none of the agencies can be used as the States and the people choose.The Federal government is using usurped powers to apply POLICE POWERS which they have no authorization in the Constitution to apply to the States and the people. The 10th amendment clearly reserves those power for the States and the people.[2]It is long since time for action by Patriots to put down this movement for creating a Super Strong Central government that dictates our actions from cradle to grave.Will you take the risk of public defamation to save the REPUBLIC or will you sit back and let the usurpers end our individual protections, Freedoms and Liberties. The future of our Republic and the continue Constitutional protect for our future generations is the question - defend and protect or yield and withdraw - this is the question?1. http://en.wikipedia.org/wiki/Continental_Congress First and Second Continental Congress representing 13 original colonies.
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- listing of the left in the USA
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DESPITE TAX INCREASE, CALIFORNIA STATE REVENUES IN FREEFALL
Proof Natural law is correct in current paradigms of Governments and taxes - the Sovereign individual will use his Natural rights to avoid a tax they feel is unfair . . The Laffer curve and supply side economics is proved accurate once again . .
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