On laws, sausage and power

By Edi Birsan on November 18, 2018

The recurring theme of strict interpretation of written local laws or the Constitution, with an occasional reference to what the author intended, reminds me of what was said in the 19th century: You never really want to know how either laws or sausages were made.

The argument of intent has resurfaced in the “birthright” citizenship debate that is being used to divide the country nowadays, much like the long tedious argument about the 2nd Amendment and how it should be applied to today’s shoulder-held, anti-aircraft rockets or flame throwers.

People only go back to the argument of “what the author intended” when it reinforces their position. When it comes to legislation, what the author intended – or what those who voted on it thought they were voting on (assuming there was any thought at all) – is not even a close second to what was applied at the time or what was interpreted by the bureaucrat, a district attorney or the courts within the new dynamic of the time of the action being examined.

Several years ago, there was an excellent movie about Lincoln and the passage of the 13th Amendment that abolished slavery. It showed quite accurately that for some members of Congress, the focus of the law was becoming the equivalent of the postmaster of the state of Ohio. It’s shocking that something as profound as the abolishment of slavery should be based on elected representatives’ motivation of personal financial security.

Locally, as a Concord City Council member, I am not concerned with what my colleagues intend when they vote for something I propose – I just want them to vote for it. Their intentions could be quite opposite of my intent, or so far off the focus of the issue that it is astounding. For example, I have been told: “If you propose it, then ‘X’ will vote against it just because it came from you.”

Laws are often turned totally upside down from what was first interpreted because the whole society has changed. Consider a Davis/Bacon Act proposed by Republicans in the Depression Era that speaks about local prevailing wage. It was used to keep Southern construction companies using underpaid Southern African American laborers from getting projects in Long Island, New York, taking the federal dollars away from the good ole boys of the area. Labor unions then turned it around to define prevailing wage as union scale 50 years later.

The meaning and scope of the words of the law change over time. What was freedom of the press in 1789 finds us 200 years later talking about a media that has no resemblance to the printed press over two centuries ago. The same words that spoke about equality were used to support segregation. And, of course, the idea of liberty certainly never meant: Do what you want.

Power plays into all laws, which is why we have courts and an occasional awkward moment over Thanksgiving turkey. A law is more than its written words. How it is applied tells us what we have. Is it a spicy sausage, or a bottom-of an-ashtray-tasting English banger of a thing that they call sausage?

It is not always the actual words, but the application of a law within the framework of a changing society, that dominates the story of our legislation. So when you see a sign that says “Fine for Dumping Trash $100,” do not expect that you could ask the judge for $100 – since after all, the sign said it was just dandy fine for dumping.

Email questions and comments to Mayor Birsan at EdiBirsan@gmail.com

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