2012/08/17

Most voter ID statutes unconstitutional

Most proposed or enacted voter ID statutes include a requirement to prove eligibility to vote by presenting proof of identity, and require that proof to be some kind of government issued ID. Such requirements are unconstitutional. Voters may constitutionally be asked to prove eligibility, but not identity. The two are not the same.  Eligibility can be proved without revealing identity. It is unconstitutional to deny a right or privilege for failure to present something one is not constitutionally required to possess, and there is no constitutional authority that requires anyone to even have a name.

Eligibility can be proved in various ways that do not disclose identity. The traditional way was for a notary or other official who knows the person to testify that he is eligible. His testimony, such as an affidavit, would be the proof. The individual's identity would be disclosed to the notary, but need not be disclosed to anyone else. Now of course the witness has to be trustworthy, but that is no different from trusting the clerk who prepares and issues an ID card.

Some go so far as to propose a national ID system. Proponents of such a system suffer from a naive faith that government is benign, with only rare exceptions, and can be trusted with the power that would come with control of personal identification in their hands. But such an ID would immediately become a national ID card for all other purposes as well, as the convenience of it would drive the emergent behavior of people everywhere.

Suppose such a proponent says something critical about some government official. Suppose some anonymous clerk then amends his record in the central identification database. Now he is a "fugitive, child-molesting cop-killer terrorist, armed and dangerous". Suppose he goes in to vote, and, just as he is raising his pen to sign the register, a swarm of cops pours in and guns him down, pointing to the pen and saying, "He was holding a weapon!" Cops who shot him are put on paid administrative leave pending the investigation, which finds the shooting justified, and the cops return to duty without even a negative comment on their records.

The elevation of personal identity to the importance accorded it today is an innovation in our legal tradition. Historically it has had much less importance, usually where ownership of property was involved.

Be careful what you ask for. What I described is not some paranoid rant. All of the elements of it are things that are happening to real people right now.
You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered. — Attributed to Lyndon B. Johnson or Hubert Humphrey, but unconfirmed.
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2012/08/15

Construing "strict construction"


It is a common mistake of modern readers to presume that a term used in many instances in a document such as the Constitution has the same meaning in each of those instances, but the 1787 users of English, and particularly legal English, were not that precise or rigid. For that matter, neither are people today. The meanings of terms can and do differ from one context to the next, within the same instrument, and not just because it was the work product of multiple authors.

Legal and constitutional exegesis is an advanced art that must regard words as evidence of meaning but recognize that the evidence is "holographically" distributed over the entire document and beyond. Our problem can be seen in illusions such as this one in which a pattern of light and dark patches is not recognized while still but becomes apparent when animated. When the Framers drafted the Constitution, they were imagining how the words would play out in use, and we must try to do the same when we try to construe them.

A literalist approach to interpretation doesn't work. Justice Antonin Scalia rejects it in his new book (with Bryan A. Garner), Reading Law: The Interpretation of Legal Texts, p. 355, where he calls it "strict construction". That is the meaning that term might have for some of its critics, but is generally not the meaning it has for its proponents, which has its roots in law Latin:
Ex tota materia emergat resolutio. The construction or resolution should arise out of the whole subject matter.

Quae communi legi derogant stricte interpretantur. Laws which derogate from the common law ought to be strictly construed. Jenk. Cent. 231.

Quod factum est, cum in obscuro sit, ex affectione cujusque capit interpretationem. Doubtful and ambiguous clauses ought to be construed according to the intentions of the parties. Dig. 50, 17, 168, 1.

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

Potestas stricte interpretatur. A power is strictly interpreted.
Since a right is a restriction on delegated powers, and a delegated power a restriction on rights, from this last maxim we can conclude that a right against government action must be broadly interpreted, and the presumption must be in favor of such a right. See Presumption of Nonauthority and Unenumerated Rights.
Potestates stricte interpretantur, iura late. Powers are to be interpreted strictly, rights broadly.

Potestates enumerantur; multis iura non enumerata. Powers are enumerated; many rights are not enumerated.
So from our Latin heritage we can construe "strict construction" (stricte interpretantur) not as literalistic but as strict for delegated powers and broad for rights against such powers. The implication is that the courts must never defer to Congress in its claim to exercise a power, and always require strict proof of its authority for such power, lacking which the presumption must be that it does not have the power.

That only leaves the ambiguity of powers delegated to protect rights. Is such a power to be construed strictly, or does it borrow some of the broadness of the rights it is to protect? It depends on which rights with respect to what, and the cost and risk of abuse. Generally, a power to protect rights against government should be construed broadly, and against natural threats or private acts should be construed narrowly. Otherwise every government would have general police powers, and the federal government does not. But that is a matter for future discussion.
Exerceatur constitutio, ruat caelum. Let the Constitution be enforced, [though] the heavens fall.

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