To those who grew up with legalism, part 2

In 1996, Utah police raided Larry W. Peterman’s two MovieBuffs video stores, following a petition by 4,000 people calling for his prosecution. The MovieBuffs stores stocked a wide range of videos from Disney’s Dalmatians to Bruce Willis’s blood and gore, but some adult titles were also on offer. Peterman would later testify in court that the latter constituted only 11 percent of all rentals from his shops.

Peterman’s chances in court were slim, to say the least. There was no denying that pornographic videos were found in his stores, and Utah, the stronghold of mormonism, is perhaps the most conservative state in the United States.

Fortunately, Peterson’s lawyer, Randy Spencer, took an inspired tack. He got his investigator to check into a nearby Marriot hotel and, using a video camera, collect evidence of eleven adult channels offered by the hotel’s video-on-demand service. He then subpoenaed the hotel’s revenue records for these channels. He also went after similar revenue information from local cable and satellite television providers’ adult channels.

What he found was “a nearly fathomless pit of hypocrisy,” reported Eroticabiz, an e-book. Local citizens “rented far more porn flicks per capita than did people in the rest of the United States.”

Spencer went on to show that consumption of pornography was hardly outside “community standards”, the usual barometer of what constituted moral depravity. Moreover, the amount of porn Peterman supplied through his stores paled in comparison to the vastly larger quantity enjoyed by the public via those other sources. The prosecution of Peterman with his two small stores (and in response to a sectional demand expressed by way of a petition) when larger purveyors were not targetted, raised the serious question of whether the action was just towards Peterman.

The jury acquitted him.

Juries

In To those who grew up with legalism, part 1, I wrote that we should not be regarding the letter of the law as the final word. Law must be seen in terms of its meaning and applied with context in mind. Meaning can change, especially in the light of new knowledge. Context varies from place to place and time to time. Most important of all, law is not there to hand control over us to those more powerful than us, such as governments; it is there to protect us from those who would harm us, and render justice.

Interposing a jury has interesting effects. Because they are laypersons, they will tend to pay less attention to the letter of the law than to an inchoate sense of right and wrong, and fairness. This was at work in the above-mentioned case. One could argue that relying entirely on jurists tends to bias courts to a more literal reading of the text, rather than take in the bigger picture, but I don’t know if this is so. It won’t be fair to the profession.

Singapore used to have a jury system. One of the chief reasons it was abolished, as articulated by Lee Kuan Yew, was because juries were reluctant to convict a person for murder when it meant a mandatory death penalty. Lee felt juries were wrong and so he got rid of them. I could argue this instead: Since law is meant to give form to our sense of order, justice and morality, perhaps our juries, in their reluctance to see someone executed despite being a murderer himself, were beginning to express an emerging morality — that we collectively should not be responsible for taking yet another life.

A simple solution was there to reflect this emerging morality: allow juries to recommend life imprisonment instead. This was a road not taken. Apparently it was more important to preserve the punctilious letter of the law (hang them!) than to let law evolve with the times.

On the other hand, let’s not romanticise juries. Popular opinion, or prejudice, can oftentimes be injurious, and the law may need to be invoked to protect targetted persons from discrimination.

Prop 8

As most readers may know, a high-profile case is wending its way through the US federal court system. The popular name for it is “the Prop 8 case”. It actually began within the California court system. A ruling by the California Supreme Court in 2008 found that denying marriage to same-sex couples violated the equality provisions of the California state constitution, and the court ordered that California government offices issue marriage licences to same-sex couples who applied for them. 18,000 couples wed.

Conservatives were unhappy and, galvanised by a Mormon church-led campaign (with much of the US$40-million funding from Utah residents, not Californians), inserted a referendum question into the November 2008 ballot. This question, listed as Proposition 8 on the ballot, proposed to amend the state constitution by adding a new clause, thereby overturning the California Supreme Court’s earlier decision under the equality clause. Proposition 8 simply said “Only marriage between a man and a woman is valid or recognized in California.”

It passed 52 : 48 percent. The state government of California had to stop issuing marriage licences to same-sex couples.

A new case was launched, this time under federal law. The contention was that Prop 8 violated both the due process and equality provisions of the United States Constitution.

Can law override a popular referendum? you may ask. Yes, it can, and it’s been done before. That’s what I’ve been trying to explain in these two articles. Law is not an ordinary set of rules; it’s a very powerful instrument. But at the same time, because it’s so powerful, we need to be vigilant that it is wielded for noble purposes, not base ones.

The first step in the federal case was completed a few weeks ago. Appeals are expected, however. Judge Vaughn R Walker (right) ruled that Prop 8 was invalid because it violated both clauses of the US Constitution under which it was challenged.

“Due process,” he explained, “protects individuals against arbitrary governmental intrusion into life, liberty or property.” Marriage is such a fundamental right — as the US Supreme Court has ruled it to be numerous times in it history — that courts must apply strict scrutiny  to any infringement of that right. Yet, Prop 8 does not even meet the rational basis test let alone strict scrutiny.

Likewise, over the matter of equal protection, “the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect,” and likewise again, Prop 8 does not even withstand the rational basis test let alone strict scrutiny.

The judge, in his written ruling, examined all the arguments put forth by the Proponents (those who mounted the campaign in favour of Prop 8 in 2008) and found them to be unpersuasive. They did not demonstrate a state interest in denying marriage to same-sex couples.  Hence, Prop 8, he said, was unconstitutional  because it denied a class of persons a fundamental right for no legitimate reason (thus not even surmounting rational basis review).

As for the vote, “That the majority of California voters supported Proposition 8 is irrelevant, as ‘fundamental rights may not be submitted to [a] vote; they depend on the outcome of no election’,” he said, citing an earlier Supreme Court case as precedent.

I’m not going to burden readers with the nitty-gritty of the case, fascinating though it may be. Instead, I will go into its details in a subsequent essay for those readers who are interested. [Update: It’s this one: Perry v Schwarzenegger in less than 136 pages]

The point I wanted to make is just this: While the government of California was bound by the ballot to act in a certain way, the law sat in judgement  over the government, and even over the democratic process that was (ab)used to discriminate against a class of people. Properly, law is not merely an instrument for government to regulate people. Law is an instrument to regulate governance.

9 Responses to “To those who grew up with legalism, part 2”


  1. 1 KiWeTO 15 August 2010 at 00:40

    Equitable and justifiable laws exist in countries that protect the weak (and meek?) from abuse and exploitation by those who believe themselves stronger.

    However, it also has to protect the minority against the tyranny of the majority. Examples of such “tyranny” includes the prohibition against the existence of other religions in some Islamic states, or, as YB pointed out above, the Prop8 proposal by the fundamental Christians against a minority of their fellow citizens who happened to be attracted to the same sex rather than the opposite sex.

    Once, slavery was the norm in the eyes of the law. When those western societies ‘evolved’ and decided it was bad, laws protecting slave owners were repealed, and new laws protecting the weaker of our society (species?) were put in place. Society moved forward (hopefully).

    When women were seen as chattel, the laws “protected” them from themselves but not from their abusive owners(husbands). Today, it may be symbolic, but to tell a western-educated woman that they are a man’s property would be met with flinty stares(or worse!)

    Quis custodiet ipsos custodes?
    (2000 years from when the concept first crystallized in greek-descended societies, the question still needs to be asked. Will that ever change?)

    E.o.M.

  2. 2 RedLena 15 August 2010 at 11:24

    ///perhaps our juries, in their reluctance to see someone executed despite being a murderer himself, were beginning to express an emerging morality — that we collectively should not be responsible for taking yet another life.///

    When did Singapore have a jury system? Must be very long ago, I don’t even remember. And what you said about juries not passing the death sentence, isn’t it troubling that until now, this – death penalty – is considered a subject closed to discussion, bringing on contempt of court and all?

  3. 4 syn 15 August 2010 at 23:02

    When LKY rejected jury system, was it just a matter of “preserve the punctilious letter of the law”? Or was he afraid of losing control over the judicial system?

    How would the jury decide, if there were one, in the cases of libel suits for example?

    humm….

  4. 5 yawningbread 15 August 2010 at 23:24

    The wikipedia link gives you the answer. I dont think it had anything to do with defamation trials. As that link indicates, juries had been abolished much earlier (1959) for non-capital trials. The use of defamation suits to silence critics came much later.

  5. 6 thetwophilo 17 August 2010 at 17:05

    “When LKY rejected jury system…”

    If my memory serves me correctly, the tipping point was reached in a sensational case of a rich man (a Chinese, named Albert something (Soon)) accused of kidnapping and abusing, including rape of a woman who was his GF. David Marshall was the defence lawyer and he succeeded in convincing the jury. The story was that in a confrontation/meeting between LKY and DM over the decision to abolish the jury system, the former pointed out how clever lawyers like the latter could convince a jury to return a favourable verdict for even an obviously guilty defendant. DM apparently had to agree with LKY’s observation.

  6. 7 Jiekai Koh 18 August 2010 at 01:42

    Alex,

    Oh dear. What is this half-baked “living constitution” claptrap that you’re trying to peddle? While the judicial review process does review government action for unlawfulness, why should that review process inherently find that because social values have changed, that one should ignore the plain meaning of the words in a statute (or of case law)?

    Just because America could not get round to amend its constitution to reflect changing social mores and therefore, had to resort to the use of “living constitution” theory doesn’t mean that other countries should follow. Arguing that we should ” move with the spirit of the times” is not only a non-starter in the courts in Singapore, but also in the UK. It is also a bad idea because it just makes the law unpredictable – as a lawyer, I rather like the idea that any substantive changes to settled interpretation of the law is made through the legislature or by powers granted to the government in legislation!

    • 8 yawningbread 18 August 2010 at 02:41

      But our courts do reinterpret law in the light of contemporaneous values. One example: If I’m not wrong, in the appeal of PP vs Kwan Kwong Weng, the court listened to expert testimony about the prevalence of oral sex between heterosexual couples and how people nowadays see it as part and parcel of lovemaking. As a result, where up till then the scope of the old Section 377 had always included oral sex, the judge modified its scope to exclude oral foreplay prior to vaginal intercourse.
      .
      Another example: The 2009 ruling from the Delhi High Court reading down their Section 377 came from a similar reinterpretation of the law and the constitution. The court created a new recognition of gays and lesbians as a class of persons protected under the constitution’s equality clause, and by so doing, found Section 377 to conflict with that equality guarantee. Recognition of gays and lesbians as a class came about through the courts accepting current social knowledge.
      .
      So indeed, even in common law jurisdictions, law is a living thing. One could argue that it is precisely common law traditions that make it more living than civil law jurisdictions that are more bound to text.

      • 9 Aravind 18 August 2010 at 15:18

        Jiekai,

        I think it is something of a misuse of language to say that courts change or amend constitutional rules to suit developments in social values. Here’s an example. The U.S. Supreme Court in Brown v Board of Education, in holding that segregation was unconstitutional, did not “amend” the equal protection clause of the 14th Amendment. Instead, it merely corrected what had been a gravely deficient interpretation of that clause in the earlier case of Plessy v. Ferguson, which allowed segregation.

        The Court did not reinterpret the Constitution to reflect then “contemporaneous” values. Rather, it came closer to the underlying value of equality that was already enshrined in the 14th Amendment from the outset. The values of equality and liberty do not change over time – only our understanding of their demands changes, hopefully for the better. As such, when a court discards old interpretations, they are not necessarily playing fast and loose with the constitution. If it can be shown that the new interpretation is a better interpretation of that principle, then the court is actually keeping better faith with the constitution. That’s what is meant by the phrase “living constitution”.

        In any case, neither constitutions nor even statutes always provide the “plain meaning” you claim. Constitutions in particular are invariably phrased in highly abstract terms. Law will therefore always be somewhat unpredictable. If it wasn’t, we would have no need of you – we could replace all lawyers with computers.

        Lastly, you are quite wrong to say that UK courts do not engage in “living constitution”-style legal interpretation. Lord Bingham’s recent book “The Rule of Law” quite elegantly sets out how the advent of the Human Rights Act 1998 effectively killed off the old Diceyan attitude to civil liberties and replaced it with a broad and generous posture towards human rights interpretation.

        But, you are quite right about how this attitude is a “non-starter” in Singapore. This is not surprising, given that 45 years of neglect has reduced the study of public law to intellectual bankruptcy. The judgment in Yong Vui Kong for instance, is really a degredation of the act of reading. And that of course, is precisely Alex’s point.


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