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Rules of Interpretation and Construction

I want to thank a commenter very early in this blog’s history for pointing me to the “No Points” video. I was reminded of one bit of it when reading Mario Apuzzo’s Brief in the Pennsylvania ballot challenge by Kerchner and Laudenslager. It goes:

Everyone in this room is dumber for having listened to it.

It was apparent that the Brief was not intended for the court – it was intended for the public. A good example of this is the section titled “Rules of Interpretation and Construction.” No judge needs to have interpretation and construction explained to him. Indeed there are no hard and fast “rules” of interpretation and construction1. There are general principles and maxims, but not rules (a lawyer told me that). Leo Donofrio, and now Mario Apuzzo have undertook to “reeducate” the public in their own unconventional methods of how laws are interpreted and constructed so as to make other parts of their unconventional arguments sound better.

No one with a legal education is going to buy any of this for a moment, and so I conclude that the Brief is not for the Court but is rather a publicity stunt in the guise of a lawsuit (as are many birther lawsuits).  After all, Kerchner is the same guy who takes out half-page advertisements in the Washington Times newspaper to sell his theories. This ballot challenge is just another marketing tool. Kerchner isn’t even eligible to file a real challenge in Pennsylvania according to Obama’s attorney.

Anyone who naively reads the Brief will be dumber for having listened to it.

However, no bait and switch with the article’s title this time. If you would like to learn about statutory interpretation, I can think of no better place to go than the Congressional Research Service’s report for use by the Congress that actually constructs those statutes. Here is the report: “Statutory Interpretation: General Principles and Recent Trends” (August 31, 2008) by Legislative Attorney Yule Kim of the American Law Division:

Statutory Interpretation: General Principles and Recent Trends


1The US Supreme Court said in Rice v. Rehner: “Canons of construction are no more than rules of thumb that help courts determine the meaning of legislation…”

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13 Responses to Rules of Interpretation and Construction

  1. avatar
    G February 28, 2012 at 11:22 pm #

    Um…yeah…because he’s only spent over the past 3 years bloviating on this very same crockery… I’m sure it took him oodles of hours to do a bit of cut/paste editing and slap a new title on it….

    *rolls eyes*

    John: It is interesting that Mario was able to come up with 200 page brief in such a short period of time.

  2. avatar
    bebe February 29, 2012 at 12:07 am #

    “rules of statutory interpretation include”

    Cornell School of Law -Statutory Construction:

    Any question of statutory interpretation begins with looking at the plain language of the statute to discover its original intent. To discover a statute’s original intent, courts first look to the words of the statute and apply their usual and ordinary meanings.

    If after looking at the language of the statute the meaning of the statute remains unclear, courts attempt to ascertain the intent of the legislature by looking at legislative history and other sources. Courts generally steer clear of any interpretation that would create an absurd result which the Legislature did not intend.

    http://www.law.cornell.edu/wex/statutory_construction

    Did Justice Gray look at the legislative intent?

  3. avatar
    Lupin February 29, 2012 at 2:06 am #

    More clues that Mario is a paid propagandist — and certainly not paid by Kerchner.

  4. avatar
    Thomas Brown February 29, 2012 at 10:01 am #

    Lupin:
    More clues that Mario is a paid propagandist…

    I am becoming more and more convinced that these efforts are not, as Doc rightly opined, intended as anything that will succeed in a court of law.

    I am now pretty well convinced that the aim of hard-core Birthers: Apuzzo, Corsi, Taitz, etc., is far more malicious than simply propagandizing to affect the outcome of the next election. I started out thinking that they only wanted to make people mad enough about Obama’s spurious “ineligibility” to vote against him. And that may well be the idea behind the majority of the Birther trolls and common deluded Citizens who watch too much Fox News. But I don’t think defeating him at the ballot box is the only aim of the worst of them… people like Rambo Ike, whose vitriol is palpable.

    And when I make my assertion, I don’t want anyone to think I am engaging in the kind of hyperbole the run-of-the-mill Birthers employ, or being flip or disingenuous in any way. Because the issue is serious enough that it wouldn’t be appropriate. And please, those here who disagree, please tell me so; because even I am conflicted about the possibility, and would rather I were in fact mistaken. But I don’t think so, because it explains a lot that otherwise seems opaque about the Birther’s actions, language, and methodology.

    I believe (and again, this only goes for some of them) that, consciously or subconsciously, Birthers really want him dead.

    Think about the total message these people are building: not that Obama is simply too liberal, or a poor leader. They are spending titanic time and effort broadcasting that he has stolen the Presidency, a treason worse than any spy, and illegitimately occupies the office. AND he has done so, not just to steal an election on behalf of his Party, like Richard Nixon (who, whatever else you say about him, plainly loved his country), but to actually destroy the United States of America. They portray him as in league with the Muslim extremists who slaughtered Americans on 9/11. Perversion, murder, drug abuse, identity theft, sabotage of national security… no offense is too horrible to accuse President Obama of having committed.

    I believe they are hoping to make someone (maybe more than one) mad enough to take him out of office with a bullet.

    They are not defenders of the Constitution; if they were, they would engage in reasoned debate (and some do, so I’m not talking about them). They would construct real attempts at legal appeals, or petition Congress to alter their present understanding of Presidential Eligibilty. But that is not what they’re doing, is it? They’re not serious about questions of Interpretation and Construction. What they are doing is the espousal of blind hatred, searing in its intensity, unprecedented in virulence… not just engaging in time-honored partisan ideological propaganda.

    After the Lincoln assassination, there were no overt celebrations. Southerners of the time generally had a strong sense of honor, propriety and decency, so even if in private they thought America was better off without him, they almost universally reviled the despicable act. As far as I know, very very few called Booth a hero.

    In contrast, I think the most virulent Birthers have no such decency. The ones who write in WND’s comments about taking out our President and his “monkey kids…”; I think the worst of the Birther lawyers are stoking such people up to a murderous frenzy. They are, indeed, not speaking to the Judges, but to the public. And I think they would celebrate the violent bloody overthrow of this democratically elected Administration privately and publicly. They are calling Obama an enemy of the Nation… why should they not be relieved, pleased, and feel it was justified?

    Do you think there was no interaction, no causal connection at all, between Bill O’Reilly’s meme, repeated almost daily, of “Tiller the Baby Killer,” and the guy who shot Dr. Tiller dead? Is there really no chance that the same thing is going on with the demonization of Mr. Obama?

    Please tell me I’m wrong. Tell me the all the Birthers would publicly and sincerely denounce a successful assassin and mourn our President.

    But honestly, based on your experience with them, can you?

  5. avatar
    mimi February 29, 2012 at 12:01 pm #

    Raicha said at The Fogbow: “Why would he be trying to bring it in under 200 pages? If I found the right rule, he is limited to 70 pages, double-spaced.

    http://www.aopc.org/NR/rdonlyres/8B8898BD-C1CE-4586-9CC3-069EF03F4780/0/146apctrule.pdf .”

    Mario probably knew he’d never get pro hac vice, what with his same argument being found ‘frivolous’ by a Pennsylvania court earlier.

    It looks like this pile o’ poo was meant solely for the birfers.

    IANAL, and I wonder if the Court can sanction him for filing that before the pro hac vice request was ruled on?

  6. avatar
    Robert February 29, 2012 at 12:16 pm #

    @Thomas Brown

    Like you, I do not mean this to be flip or anything similar to the random hyperbole that the brothers throw around.

    I have long believed that any non WASP male would be killed in office, as we have enough bigots that somebody would eventually act. Yet, as soon as Obama was elected, the KKK, Nazis, and other white-power groups went underground on their anti-Obama positions, most agreeing that it was not right to take him out.
    Now, where did those who are truly biased end up, those who want him gone, realizing their own group threw them out? I would not be surprised if, were the funding ever made public, you would see several ‘donators’ who are of the camp that was kicked out.

    Again, I have no evidence for this, but I noticed that the logic is similar, and the desire to convince somebody of his treason (Orly herself has mentioned capital crime), it just is too similar to the KKK tactics to not be related.

    Dr. C – I harbor no ill feelings if you need to remove this comment for legal reasons

  7. avatar
    Dr. Conspiracy February 29, 2012 at 12:40 pm #

    Aren’t those appellate court rules?

    mimi: Raicha said at The Fogbow: “Why would he be trying to bring it in under 200 pages? If I found the right rule, he is limited to 70 pages, double-spaced.

    http://www.aopc.org/NR/rdonlyres/8B8898BD-C1CE-4586-9CC3-069EF03F4780/0/146apctrule.pdf .”

  8. avatar
    Robert February 29, 2012 at 1:10 pm #

    IANYAL (and will probably never practice in PA), but scanning the court rules (http://www.pacode.com/secure/data/210/chapter67/chap67toc.html) I couldn’t find a page limit except on appeals.

    Dr. Conspiracy:
    Aren’t those appellate court rules?

  9. avatar
    mimi February 29, 2012 at 1:26 pm #

    ok, and sorry. Raicha probably wrote another comment that I missed.

  10. avatar
    G February 29, 2012 at 1:27 pm #

    Which if true, is even a bigger fools errand waste of effort.

    I mean, really – cobbling 200+ pages together, just to preach to the already converted….most who seem to never read anything beyond a headline or summary blurb anyways!

    Talk about an excercise in ego-driven futility!

    mimi: Mario probably knew he’d never get pro hac vice, what with his same argument being found frivolous’ by a
    Pennsylvania court earlier.

    It looks like this pile o’ poo was meant solely for the birfers.

  11. avatar
    G February 29, 2012 at 1:34 pm #

    Thomas, many of us have long suspected such a dark, underlying intent to inspire a “lone wolf” as part of the motive and propaganda agenda.

    Just because we laugh and mock their crazy and stupid antics doesn’t mean that we aren’t concerned about the potentially dangerous ramifications from the hate-crazed unhinged.

    It is actually one of the reasons I’ve always felt that this crazy movement has to be monitored. Any warning sign that indicates a true threat can then be reported to the proper authorities. Vigilance is the best method of prevention that we have.

    Thomas Brown: In contrast, I think the most virulent Birthers have no such decency. The ones who write in WND’s comments about taking out our President and his “monkey kids…”; I think the worst of the Birther lawyers are stoking such people up to a murderous frenzy. They are, indeed, not speaking to the Judges, but to the public. And I think they would celebrate the violent bloody overthrow of this democratically elected Administration privately and publicly. They are calling Obama an enemy of the Nation… why should they not be relieved, pleased, and feel it was justified?
    Do you think there was no interaction, no causal connection at all, between Bill O’Reilly’s meme, repeated almost daily, of “Tiller the Baby Killer,” and the guy who shot Dr. Tiller dead? Is there really no chance that the same thing is going on with the demonization of Mr. Obama?
    Please tell me I’m wrong. Tell me the all the Birthers would publicly and sincerely denounce a successful assassin and mourn our President.
    But honestly, based on your experience with them, can you?

  12. avatar
    Thomas Brown February 29, 2012 at 1:59 pm #

    G:
    Thomas, many of us have long suspected such a dark, underlying intent to inspire a “lone wolf” as part of the motive and propaganda agenda.

    Just because we laugh and mock their crazy and stupid antics doesn’t mean that we aren’t concerned about the potentially dangerous ramifications from the hate-crazed unhinged.

    It is actually one of the reasons I’ve always felt that this crazy movement has to be monitored.Any warning sign that indicates a true threat can then be reported to the proper authorities.Vigilance is the best method of prevention that we have.

    OK, so it’s not just me.

    Thanks.

    I’m just trusting that the Secret Service is very, very good at what they do.

  13. avatar
    G February 29, 2012 at 2:20 pm #

    I always remain concerned that they are understaffed and might be overwhelmed with the amount of nuts they have to keep track of….

    I always worry about something slipping throught the cracks. I also remain concerned that a strain on resources can hamper the ability to conduct proper investigations or to provide adequate preparations as a result.

    Thomas Brown: I’m just trusting that the Secret Service is very, very good at what they do.