Wednesday, October 31, 2007

And Along Comes Mr. Authoritarian Personality....


Although Law.com sees this as "punching holes" in other Justices' hypotheticals, I see something else:
But Justice Samuel Alito punched holes in some of his colleagues' hypotheticals, asking if those situations "occur with any frequency in the real world."
It's a wonderfully leading question, and you would have to be dumb as a sack of hammers to believe that Alito did not know the answer that would be forthcoming. So it is safe to conclude that Alito didn't intend to learn anything from the answer.

So why then a question which suggests a philosophy that, even when a statute is excessively broad, if the circumstances in which its reach would be unconstitutional are purported to be rare, we should let the statute stand and "trust the government" not to misapply it? That appears to be what Alito believes.

I'm more of the school that legislatures should draft good laws, and courts should not be forgiving of their drafting unconstitutionally vague or ambiguous laws merely because it is hypothesized that the vague or ambiguous elements will rarely come into play. In terms of whether we can trust that prosecutors won't charge people in the situations Alito would deem exceptional, my experience suggests otherwise.

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