The Arizona Supreme Court's Use and Abuse of Statutory Construction

 

By now, all know through the magic of modern media the opinion of the Arizona Supreme Court in the case of Planned Parenthood Arizona, et al v. Mayes, et al.  In that opinion it held that a law adopted in 1864, when Arizona was a mere territory, effectively making abortion a crime unless to prevent the death of the mother, is applicable here and now, some 160 years later.

It always disturbs me when a court reaches more than a century into the past to dispose of issues coming before it now.  I think that in many cases, what was the law then was adopted in circumstances so different from those pertaining now that it's applicability is suspect.  This attitude has made me feel embarrassed, often, whenever I've cited legal antiquities after a search reveals that they are the only authority supporting the position I take in a case.  I can't help but think that the court and opposing counsel will conclude that if they are all I can rely on, there is a problem with my argument.

Regardless, though, laws adopted long ago which haven't been expressly repealed or ruled invalid by a court remain.  They exist and are available in a court of law.  They may well be binding from the perspective of the law.  The law is rather like the Internet in that all our statements, decisions, rules and regulations incorporated into the law cannot be erased no matter how evil, unjust or foolish they seem now.  For example, there are laws prohibiting certain sexual acts between consenting adults and laws prohibiting adultery still out there, though for the most part unenforced.

The opinion is lengthy, and I can only review it in summary in this post.  However, review it I will and I think the review addresses the major points and arguments made.

Since the 1864 law (let's call it "Law 1") was adopted by the Territory of Arizona, the State of Arizona adopted a law (let's call it "Law 2") which in pertinent part states that except in the case of a medical emergency, an abortion may not be knowingly and intentionally performed if the probable gestational age of "the unborn human being" has been determined to be more than 15 weeks.  At issue was the question whether Law 1 or Law 2 applies at this time.  In other words, at issue was the question whether an abortion could be performed under Arizona law if it was performed at any time before the expiration of the 15 week period.

Because neither Law 2 nor anything else expressly repealed Law 1, it is our fate as it was the fate of the Arizona Supreme Court to consider the rules of statutory construction, as it was necessary to interpret Law 2 as related to Law 1.  A law adopted by a legislature is to be construed to say just what it says if its language is clear and unambiguous.  If it is, then construction is not required.  If a law is ambiguous, then recourse may be had to a number of other sources in interpreting it, including, e.g., legislative history (the proceedings of a legislature during the debate and adoption of the law).  Generally, a law is considered ambiguous if two reasonable persons would interpret it differently.

Neither Law 1 nor Law 2 strike me as ambiguous.  The majority of the Arizona court decided Law 2 was, however.  As I noted, it didn't expressly repeal Law 1.  However, it clearly stated that an abortion was prohibited when performed after 15 weeks, unless medically necessary.  It doesn't take much in the way of intelligence to infer from this that an abortion performed with the 15 week period is not prohibited.  If you think as I do and the plaintiffs in the case did, you would conclude that the law allowed abortions to take place within the 15 week period; in other words, that it authorized abortions during that period.   Someone could therefore have an abortion in that period under Arizona law without incurring any penalty under the law.

 The majority conceded this was a reasonable construction of Law 2.  However, it determined that there was another reasonable construction.  Law 2, according to the majority, could reasonably be interpreted merely to describe the circumstances in which a physician may or may not be penalized if an abortion is performed. There being two reasonable interpretations according to the majority, Law 2 was ambiguous.

The majority then looked to legislative history.  It decided from that history that Law 2 was adopted in response to the U.S. Supreme Court decision of Roe v. Wade.  It opined that the Arizona legislature only adopted Law 2 because it had to do so to avoid running afoul of that Supreme Court decision.  According to the majority, Arizona never really wanted there to be a right to adoption.  So, Law 2 can't be construed to that effect.  Also, Roe v. Wade now being overruled, Law 2 must be considered inapplicable and Law 1 thereby must be applicable.

It's clear that Law 2 must be deemed ambiguous in order for this opinion to have any basis.  But the grounds on which the majority decided it to be ambiguous strike me as decidedly unreasonable.  If a law says X may be done in certain circumstances, but may not be done in other circumstances, I'm at a loss to interpret it to say X may not be done in certain circumstances, and may not be done in other circumstances as well.  X is allowed, or authorized, in one case and prohibited in another. 

I'm uncertain whether the majority is contending that being allowed or authorized by law to engage in certain conduct doesn't mean one has a right to do so, or something else.  If the former, I don't know how to characterize a legal right except as providing that something may be done without incurring a governmental penalty.  Under Law 1, abortion was penalized in any circumstances if not needed to save the life of the mother.  Law 2 is clearly inconsistent with Law 1.  Law 1 had no effect after Law 2 was enacted.  This would seem to be an implied repeal.  The fact that there are statements which appear in the record that it isn't really intended to be a repeal, which the majority notes, doesn't detract from the plain language of Law 2.  The fact that Roe v. Wade was overturned does not render Law 2 invalid, which the majority seems to believe, as Dobbs doesn't hold that a law like Law 2 is unconstitutional.  So, it's necessary that Law 2 be repealed to be ineffective.

The sad lesson is that the rules of statutory construction, though useful, can be used to support more than one interpretation of the law.  In the end, a judgment must be made regarding when those rules can reasonably be applied.  The Arizona Supreme Court's determination that Law 2 is ambiguous seems to me to be contrary to a common sense reading of that law.  A real effort is required to construe it as saying abortion is not allowed in the first 15 weeks, and construing it to say merely that abortions will not be penalized in some circumstances would amount to codifying a decision not to enforce the law under certain circumstances.  

 

The Modern Eclipse

It wasn't just any eclipse, was it?  I've never witnessed a total eclipse of the Sun, I admit.  So, however enthralling that experience may be, it hasn't been within my experience.  But I was alive when the last totality was visible in these United States, and even know of someone who witnessed it and spoke to him about it.  I saw media accounts of it as well.  But my recollection is that the accounts of that eclipse were not nearly as bewilderingly exclamatory and rhapsodic as the accounts I've seen of the one that took place yesterday.

Media accounts I saw addressed, live, such things as the reactions of those who gathered at a particular location in which totality could be observed to be married during the eclipse; the reactions of various animals in a zoo to the eclipse; the remarks made by people witnessing the eclipse when questioned; and even claims made by employes of Fox News that immigrants were donning black clothes and taking advantage of totality to illegally cross into our Great Republic unobserved, somehow, presumably during the approximately four minutes the totality lasted.  All who spoke agreed the eclipse was wonderful.  There can be no question of that.  But as much as this was emphasized, and repeated--and thus the reference to "rhapsodic" accounts--somehow, the descriptions made were uninspiring in the end.

The media representative assigned to witness the impact of the eclipse on people getting married during the eclipse unsurprisingly declared that doing so was a unique expression of love, and this declaration was confirmed repeatedly by those getting married.  Love was mentioned more than once during that broadcast.

At the zoo, we were told that birds were being noisy, a giraffe was being trailed by a zebra, an ostrich may or may not have laid an egg in the run up to totality, and flamingos and penguins began grouping together as they apparently do at night.  The ominous, and frankly silly, statements regarding immigrants dressing in black to take advantage of the totality on Fox News were made in a clip I saw.  Whether it occurred to them that the same could be done every night, and it was unnecessary and indeed foolish for anyone to await a solar eclipse and a four minute period of near darkness for this purpose, I don't know.

My guess is that most would know that temperature will drop during a total eclipse, at least if they thought about it, in addition to it growing dark, so remarks to that effect didn't strike me as newsworthy.  But I don't doubt that the eclipse itself was newsworthy, as a total eclipse isn't something visible regularly, nor do I doubt that witnessing one personally can be a remarkable and even spiritual experience.  What I do doubt, however, is that successive broadcasts taking place along the path of the eclipse, during which the same amazement was expressed, the same questions were asked,  the same responses were made and the same observations noted, were needed or interesting.  In fact, I think this rendered the eclipse mundane.

We're told that in ancient times in all cultures eclipses were wonderful, magical, supernatural, awe-inspiring and fear-inspiring events which profoundly influenced people and events.  Most of us no longer believe in magic, and know that eclipses are not supernatural.  But wonder and awe still seem appropriate reactions to a full solar eclipse.

Some remarks were made regarding the eclipse which indicated that certain people appreciated the event as reflecting the wondrous nature of the universe,  its sublime workings, its vastness and our small place in it although we are nonetheless part of it.  I think that's what would strike me if I had the good fortune to be present; that together with the acknowledgement that our disputes, conflicts and wars are petty, and our conceit boundless.

But in the main it was clear that coverage was the essential purpose of the media accounts of the event; coverage of everything. What took place, everywhere, over and over again; what was said over and over again; and what the feelings were of those who were witnesses.  The purpose was to describe the same event which took place over and over in different locations and to do so in much the same way in each case.

There's nothing wrong about doing this, but there's nothing significant about it either.  Nothing positive is achieved.  Curiously, this extensive and repetitive exposure diminishes an eclipse.  Our technology allows each of us to have a say about everything that takes place in the world, to express our feelings about them, and plainly most of us think it's important for us to speak and be heard.  Our society caters to this, as does the media.  Unfortunately, though, in most cases what we feel, and think, and say isn't remarkable or insightful or interesting.  

It seems that our media, if not our society or culture, is premised on the belief that what every person thinks or believes or says has equal significance, important and value, and should be known.  Our technology certainly encourages each of us to express our thoughts and feelings by ourselves, without the assistance of anyone else.  I'm uncertain, though, that this premise is useful, and suspect it deadens our appreciation of important things in life.

The Allure of What Might Have Been

John Greenleaf Whittier, in addition to writing the words appearing above, was a poet, abolitionist and Quaker of some note in 19th century America.  Being disturbed by what might have been would seem to be the epitome of what should be avoided by a would-be Stoic.  What didn't happen shouldn't be of concern to a Stoic except perhaps as a learning tool, as one of the rules of Stoicism is not to disturb yourself with matters beyond your control.

Whittier may nonetheless be right in stating that the words he refers to are sad, and perhaps even the saddest words.  The trick, if one can call it that, is to acknowledge they're sad but not to be saddened by them.

Regardless, speculation concerning what might have been can be fascinating in some senses.  Alternate history seems to be something authors of fiction like to write about.  Harry Turtledove appears to specialize in it.  I've read some of his novels based on alternate histories regarding the American Civil War, World Wars I and II and other periods.  I don't know how many he's written and how much of our history remains for him to reimagine, but think we've done enough in, say, the last 100,000 years to keep him and others busy for some time yet.

I myself find it fascinating to speculate on what would have happened if we left each other alone.  That requires some explanation, I know.  Let me try to do so.

We humans have developed separate cultures and societies throughout our history.  In some cases, differences between them are especially pronounced as to those which developed over time in separate areas of the world.  Of all the peoples of the world, Europeans have been most assiduous in NOT leaving other people alone.  They colonized most of it, conquered most of it, subjugated most of it.  They radically changed most of it.  What if that had not happened?

There are still those who believe that in doing so, they improved the lot of other peoples.  Reference is made to improvement in technology and medicine which resulted.  It is to be hoped that improvement in religion, meaning Christianization for the most part, isn't claimed by many anymore.

But it's interesting to wonder how the people of the pre-Columbian North and South America would have developed over time, if time was allowed them, and the Polynesian peoples, and sub-Saharan Africans, and others would have fared and what they would have accomplished but for European intrusion.  How would their technology, science and arts have changed?  If they hadn't changed, or changed differently from the way in which they changed in Europe, what of it?

It's difficult for me to maintain that the changes which actually took place are necessarily or inherently better than what would have occurred without European conquest and influence.  One can't do so without assuming European culture and society are superior and better than all others, and that would be a difficult assumption to make.  If people want to remain hunter-gathers, or nomads, for example, why not let them do so?  Is it appropriate to compel them to do otherwise?  The great pre-Columbian civilizations of the Americas were remarkably sophisticated in various respects.  If they had continued as they were, or developed in ways Europeans would have found strange, what of it?   I think the world would have been far more interesting than it is now if people had left each other alone.

Profound change isn't something which should be compelled.  This isn't to say that there should be no contact between peoples and cultures.  Trade, communication and travel would have influenced the peoples of the word and worked changes, but those changes wouldn't be forced or imposed, but accepted or rejected.  People would be different and, more importantly, the differences wouldn't be seen as strange but instead natural. 

Of course, humans being humans, some people would think they were superior to others or their ways of living better than others, but in the best case scenario of this alternate history they wouldn't feel it necessary or desirable that others become just like them or think it proper to make that happen.

An Ancient Roman Perspective on Good Friday

Today is Good Friday.  It's been a long time since I've been in a church to "celebrate" the gruesome death which we're taught took place that day in the Roman province of Judea.  I wonder how it's celebrated by the One Holy, Catholic and Apostolic Church these days.  If I recall correctly, proceedings in my days as an altar boy were appropriately solemn.  Are they still, or has the effort to make observances cheery and attractive resulted in a kinder, gentler version of the crucifixion? 

Even as idealized in El Greco's painting shown above, a crucifixion must have been a horrible death.  Just how the Romans crucified people is a matter of some dispute, but there's no doubt it took place.  Some question whether the nails were placed as depicted here; sometimes the crucified are shown as tied to a cross.  

Presumably, this particular crucifixion, if it took place as described in the Gospels referring to "Doubting Thomas," involved the use of nails as Thomas is shown the wounds which resulted.  Whether it took place is disputed by some, of course.  

Unless one is a Christian believer and accepts the Gospels, the story of the Passion, the death and resurrection, isn't immediately acceptable.  Some parts of it, though, seem credible.  By this I mean that based on information available, some of what is said to have taken place could have taken place, though very little.  We can conclude that if we take a Roman view, and make reference to non-Christian sources.

We know at least that Pontius Pilate (Pontius Pilatus, properly) existed, and was a prefect governing the province of Judea around the time in question.  This has been confirmed by the so-called "Pilate Stone" which is a damaged block of limestone found in Caesarea Maritima (modern Caesarea), bearing an inscription in which he is named as making a dedication to Augustus and Livia.  Caesarea Maritima was the Roman administrative capital of the province and so would have been where Pilate stayed and from which he governed.  However, he no doubt travelled to and stayed in Jerusalem from time to time and as appropriate, and it makes sense he would have been there at an important period of time such as Passover.

Tacitus refers to both Pilate and "Christus" when he writes of the fire which destroyed much of Rome while Nero was Emperor.  Tacitus relates that Nero sought to blame Christians for the fire, and also notes that "Christus, from whom the name [Christians] has its origin, suffered the extreme penalty during the reign of Tiberius at the hands of one of our procurators, Pontius Pilatus...."  So, there is a non-Christian source which, though it indicates Pilate was a procurator instead of a prefect/governor, states that such persons existed and "Christus" was put to death by a Roman official.

There seems to be no contemporaneous Roman account of the crucifixion, however.  Flavius Josephus makes a reference to it, and Pliny the Younger while a governor famously wrote the Emperor Trajan regarding how to treat Christians, but Josephus and Pliny, like Tacitus, wrote long after these events were said to have taken place.  By the time they wrote, Christians were known of and deemed suspicious and anti-social among the Roman elite.  No sources are cited by any of these writers, and what they knew may have been based on rumor, or have formed part of the "backstory" of the Christian faith for many years at that time.  For that matter, the Gospels were written decades later as well.

We have a reasonable basis on which to say that Pilate existed and was prefect/governor of Judea during the reign of Tiberius.  There is reason to think Judea was a difficult province to govern,  Herod the Great was a client-king of Rome, but the Jews were thought even then to be peculiar and the Herodian dynasty was known to be made up of people who wouldn't hesitate to kill each other as needed.  Augustus once remarked that he would rather be Herod's pig than one of his sons.  After his death Judea was split into smaller kingdoms, and Rome assumed rule of the area after the death of the last Herod, Herod Antipas, circa 39 CE.  The Jews revolted against Roman rule 30 years later.

Herod Antipas is the Herod referred to in the story of the death of Jesus.  Pilate supposedly sent Jesus to be judged by Herod.

So, there is a basis to believe Pilate lived and was the Roman governor of Judea.  We can probably infer that people were crucified while he was governor.  We have a single source which indicates one of those crucified was the "Christus" from whose name "Christians" has its origin.  That's a bit of stretch, perhaps, but it's arguably correct.  That would seem to be the most that can be said based on Roman, non-Christian sources.

From that perspective, we can plausibly infer that there was a person crucified under Pontius Pilate, presumably in accordance with Roman law or the authority of Pilate as governor, for some reason.  That person, if he existed, was decades later associated with the Christianity.  About three hundred years later Christians, of which there were several varieties, made up the ruling class of the Roman Empire.

If the death took place, it likely did so as part of a normal "day at the office" for Pilate, and would have been treated as such by him and his staff.  It probably wasn't even known of by other Romans.  Over the years the death, if it happened, became very important of course.  But again from the Roman perspective, by the time it became important, it simply didn't matter whether it took place or not.  

For someone who isn't a believing Christian, that seems the most sensible way in which to think of Good Friday, given the lack of evidence.  One can dispute with believers about whether the crucifixion took place, but it makes no difference.  It makes a difference to some of them, however, as it seems they hope to find some corroboration for their beliefs.  Perhaps "Doubting Thomas" has had more of an influence than has been suspected.

Politics and Zugzwang

As I've noted in the past, zugzwang in chess refers to a position in which the player obligated to make a move cannot do so without being placed at a disadvantage, which may be serious or even "fatal."  An example of zugzwang appears above.

I've also opined in the past that a particular presidential election was similar to zugzwang in chess, as any vote--at least for a candidate likely to win--placed the voter at a disadvantage.  Are we in a similar situation as to the presidential election coming in November?  Probably, though I think the disadvantages which will result if one of the candidates is elected will far exceed those which will result from the election of the other.  But I begin to wonder whether zugzwang has come to characterize or will characterize most if not all elections in our Glorious Union.  In other words, I begin to wonder whether any choice to be made in any election will necessarily be disadvantageous.

That's a rather broad and gloomy statement, I know.  But our politics and politicians have become so debased I fear it is or will be true.

I think we have to acknowledge that there is less and less about our politics which makes worthy people interested in participating in it.  In fact, it has become so divisive, rancorous and corrupt that anyone with morals or intelligence will want to avoid any involvement in what is becoming to seem a cesspool.  We see even veteran members of Congress, who should be hardened souls, eager to escape the circus it's become.

The proceedings in Congress are already largely futile on important issues, as there is little urge to compromise or, it seems, even to govern if that means reasonably accommodating conflicting interests and positions, which is to be expected in any functioning democracy or republic.  Those who've noticed the anti-democratic leanings of many politicians on the right and fear their prominence may be prescient.  Those who think they know and serve the will of God, or what is truly good and right, have no patience with doubt or questions and won't compromise.  The simple-mindedness which underlies such intolerance is spreading.  People want to be told what to do.  Most of all, I believe, people don't want to think unless they must do so--it's better if others do the thinking for them.

As Congress fails to govern, people will look for other ways to "get things done."  They'll find someone who will at least appear to "make the trains run on time."

If the worthy among us refuse to participate actively in the politics of our Great Republic, the unworthy will quickly take their place.  The venal, the fanatic, the ignorant, the stupid will run for office or determine who will or will not be candidates for them, or obtain them.  Elections and the governmental bodies which those elected will grace with their presence will become freak shows of sorts.  The performers in the shows will be the scraps and leavings of our population, thralls to the rich or corporations, or grim and stunted followers of intolerant ideologies or political "leaders."

It's an old story.  We've seen it all before.  Though we know the past, we may still be doomed to repeat it, as we don't change or refuse to do so.