Patterico's Pontifications

5/12/2011

Prejudice Towards the Florida Legislature; Or: “OMG! Florida has Just Banned All Sex! (And Genocide is Funny!)”

Filed under: General — Aaron Worthing @ 7:28 am



[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Southern Fried Scientist (SFS) thought he had a funny scoop yesterday when he made a little discovery.  Here’s what he wrote:

Florida Senate fails basic biology, accidentally outlaws sex.

By Southern Fried Scientist, on May 11th, 2011

Question: If your elected officials fail basic taxonomy, promote anti-science curriculum, and consistently attempt to undermine the fundamental unpinning of all biology, what happens when they start trying to legislate from this flawed view of reality?

The answer is this poorly-worded miasma of a law recently passed in Florida, which presumably was designed to prevent bestiality and promote animal welfare, but which has actually made it illegal, effective October 1, 2011, for anyone to have sex in Florida.

Why?   Well, he bases it on a statute that says things like:

A person may not… [k]nowingly engage in any sexual conduct or sexual contact with an animal

And you see technically humans are animals, too, so… therefore they have banned all sex, although there are exceptions:

This section does not apply to accepted animal husbandry practices, conformation judging practices, or accepted veterinary medical practices.

So there is that.

Now, I joined in the mirth for about two seconds because I have trouble resisting a good laugh, but for all his mockery of the ignorance of the Florida legislature, what is actually on display is SFS’ aggressive ignorance of the law, seen through a prism of apparent prejudice aimed at the Florida legislature.  Now ignorance of the law is forgivable.  But the beginning of wisdom is “I don’t know. ”  And arrogant, aggressive ignorance of the law that condemns a person for doing something correctly because you are too ignorant to understand they have done it correctly is a violation of that principle of humility that deserves to be condemned.  That it also seems to be driven by animus deepens my contempt.

For instance, SFS might have considered cracking open a legal dictionary.  Here’s what my copy of Black’s Law Dictionary says:

Are the people who wrote that ignorant anti-science rednecks?  Of course not.  Indeed, as suggested by the citation to Bernadine v. City of New York, Black’s Law Dictionary is simply recognizing what the legal definition of animal has been for some time.

It is important to understand that very often the courts will look to books such as Black’s Law Dictionary as strong evidence of what any legislature meant by invoking certain terms.  In other words, if for any reason any court considered for one moment that somehow all sex was banned under this Florida statute, the court would crack open a book like Black’s Law Dictionary and more likely than not, use that definition of animal.  For instance, in Bernadine (sorry, I can’t find a linkable version of the opinion), the court was discussing whether a statute applying to the “operation of a vehicle” included the use of a horse as a beast of burden, arguing that the very word “operate” suggests that the term didn’t apply to animals, writing:

One may operate a mechanical device or other inanimate object…  One may not operate a horse, which is an animal, i. e., “Any animate being which is not human, endowed with the power of voluntary motion.” (Bouvier’s Law Dictionary [Rawles 3d Rev.] p. 195.)

In other words the court was quoting Bouvier’s Law Dictionary as being the understood definition of the word “animal” in the legal world.

Or SFS could have even cracked open a copy of Webster’s Dictionary.  The courts will often look to dictionaries such as Webster’s, too.  And “[y]ou can even look it up on your computer machine” as Angry Black Lady says over at Balloon Juice.  Here’s what Webster’s says on the subject:

1: any of a kingdom (Animalia) of living things including many-celled organisms and often many of the single-celled ones (as protozoans) that typically differ from plants in having cells without cellulose walls, in lacking chlorophyll and the capacity for photosynthesis, in requiring more complex food materials (as proteins), in being organized to a greater degree of complexity, and in having the capacity for spontaneous movement and rapid motor responses to stimulation

2 a : one of the lower animals as distinguished from human beings b : mammal; broadly : vertebrate

3: a human being considered chiefly as physical or nonrational; also : this nature

4: a person with a particular interest or aptitude <a political animal>

5: matter, thing <the theater … is an entirely different animal— Arthur Miller>; also : creature 1c

— an·i·mal·like adjective

Reading it, you see what is obvious to anyone who, you know, actually speaks normal English: that we use taxonomically incorrect definitions of “animal” all the time.  For instance, it is a cliché to say that something is “what separates us from animals.”

But it gets even better, and SFS’ ignorance becomes more obvious.  You see, the Florida legislature didn’t need to explain that they meant “lower animals” because a previous statute already made it clear:

828.02 Definitions.—In this chapter, and in every law of the state relating to or in any way affecting animals, the word “animal” shall be held to include every living dumb creature;

(emphasis added.)  Which I admit is a pretty funny, archaic definition of lower animal.  But humor aside, that is already on the books.  So the current legislature didn’t fail taxonomy so much as they demonstrated a knowledge of what the state law actually said, which SFS apparently lacks.  And indeed if they rewrote this bestiality statute to use the words “non-human animal” or “lower animal” when the state had already defined the term animal, they might have sown confusion on a legal term that was already settled.  For instance if they said “non-human animal” that would suggest that the Florida legislature considered some animals besides humans to be something other than a “dumb creature.”  That could in turn then be used to imply that the general animal cruelty laws didn’t apply to chimpanzees, allowing Beavis and Butthead to torture one without punishment.  Not that that outcome was very likely, but the best practice is not to do anything to even create that doubt, resulting in needless litigation.

So rather than being a dumb decision, what the Florida legislature did was the wisest thing: accept the taxonomically incorrect but legally settled definition of “animal” already in the statute books and write the law against that backdrop.  And here’s this ignorant man making fun of them for it.

Oh, and before singling out Florida for this display of prejudice and aggressive ignorance, SFS might have looked to some other state’s laws.  And this wouldn’t have required any legal education to do this.  I did a simple Google Search and on the second link found this page listing the various bestiality laws across the country.  SFS probably couldn’t have verified the accuracy of those quoted statutes, but it should have at least given him pause before singling out and making fun of Florida for what is in fact fairly commonplace statutory language.

And incidentally what do those states’ laws on bestiality say?  Well, I didn’t verify each of that site’s representations as to statutory language, but I did check New York, Wisconsin, and Maryland.  In New York one is guilty of a crime if one “engages in sexual conduct with an animal or a dead human body.” And in Wisconsin a crime is committed if one “[c]ommits an act of sexual gratification involving his or her sex organ and the sex organ, mouth or anus of an animal.”  And in Maryland we are told that

A person may not:

(1) take the sexual organ of another or of an animal in the person’s mouth;

(2) place the person’s sexual organ in the mouth of another or of an animal; or

(3) commit another unnatural or perverted sexual practice with another or with an animal.

And that edict is enforced with criminal penalties.  Of course that law had been rendered partially unconstitutional under Lawrence v. Texas since it seems to ban oral sex between consenting (human) adults.  But there is little doubt the remainder of the statute remains enforceable.

So the point is lots of states have similarly-worded laws.  Surely SFS doesn’t believe that all of those states are filled with stupid anti-science rednecks, does he?

And the fact that SFS is engaged in a little stereotyping, is given away by his attribution of this to their decision to “promote anti-science curriculum” when frankly his entire analysis is the product of his own aggressive ignorance of the law.  Now to be fair, in a later update, SFS links to where Rick Hasen makes the super-obvious point that the courts are not going to interpret the law in an absurd way.

Still, to paraphrase Mark Twain, a lie can get halfway around the world before the truth even gets its boots on.  And while SFS is probably merely mistaken and not actually lying (and aggressive in his ignorance), this has been spreading across the internet.  For instance Alan ColmesGawkerthe St. Petersburg Times, and the man who is like Superglue to Stupid fell for it, while Michael Froomkin sees through this and talks about the time the Supreme Court decided whether a tomato was a fruit or a vegetable.  Froomkin really makes a good point and his post is worth reading, too.  But for the most spectacular fail we get Angry Black Lady of Balloon Juice who, to her credit, did find the “dumb creature” language I quoted above, but then after accusing the Florida legislature of bad taxonomy, she ends with the bad biology of eugenics.

Yes really:

If the Teabillies won’t get out of the gene pool, then we should forcibly remove them under penalty of law.

You know, because genocide* is funny!

Am I violating Godwin’s Law if the person is actually making final solution jokes?  I don’t think so.

————————————

* Yes, I know opinions are not genetically bound.  But “Angry” apparently believes it is and therefore she wishes to commit what she believes will be genocide.  Either that or she thinks that all “Teabillyism” is the result of stupidity and thus if we get rid of the stupid we will end the Tea Party or something.  You know, because massive debt, caused by massive spending supported by massive taxes, resulting in massive government is the smart thing to do.

[Posted and authored by Aaron Worthing.]

108 Responses to “Prejudice Towards the Florida Legislature; Or: “OMG! Florida has Just Banned All Sex! (And Genocide is Funny!)””

  1. The whole story is silly, because it is only one blogger’s opinion that humans are animals. The Florida legislature is not required to agree. There’s nothing bad about a taxonomy that insists humans are not animals. Traditionally there are four kingdoms: mineral, plant, animal, and human. And I see no objective reason to reduce that number to three; it’s purely a matter of preference, and I prefer not to.

    Milhouse (ea66e3)

  2. hopefully this will be a very helpful first step in controlling Florida’s bestiality problem, but it doesn’t tackle root causes

    happyfeet (3c92a1)

  3. The whole story is silly, because it is only one blogger’s opinion that humans are animals

    For goodness sake, you’re the last person I’d expect to make this argument.

    Either we are plants or we are animals. I have no idea what tradition you’re referring to, but I bet it’s not what Florida teaches in schools. This law was written poorly, obviously. Surely you agree with that.

    If Florida wanted to say that humans are not animals, this is very atypical and should have been clarified. Animal is a well established scientific category that has little to nothing to do with souls or intelligent levels. Words have meanings.

    Dustin (c16eca)

  4. This goes all the way back to Aristotle, for Goodness’ sake. Man is said of animal, as a species and as an individual. Animals are simply one broad category of living organisms.

    Anything beyond that is religious.

    Dustin (c16eca)

  5. No, I do not agree that the law was poorly written. It is very well written, and is written exactly like all other laws that refer to animals, none of which include people in that term, because people are not animals.

    Milhouse (ea66e3)

  6. Dustin, cite one law, from any jurisdiction, that uses the term “animal” to include humans.

    Milhouse (ea66e3)

  7. It’s still a “fail” on the legislature’s part. While AW is correct that one can figure out that “animals” means “non-human animals”, the goal of GOOD legislation is to avoid ambiguity in the first place — i.e., good statute-writing should leave the reader with nothing to “figure out”.

    Kman (5576bf)

  8. Dustin, don’t be silly. Legislation is not science and does not use science’s terminology. It uses the terminology of law.

    Kman, you pretend to have a basis for opinions about law but you confirm my belief that you lack credibility with that commment.

    SPQR (26be8b)

  9. Kmart finds it impossible to agree, even when it agrees.

    JD (194dc5)

  10. Much like the left’s inordinate awareness of ‘teabagging’ this really shows how they find a reasonable restriction, out of bounds, I yield to few, in my distaste for the Florida legislature,
    but this is argument clinic.

    narciso lopez (79ddc3)

  11. Kman

    you find the term “dumb creature” ambiguous?

    OR DID YOU FUCKING REFUSE TO READ THE WHOLE FUCKING POST AS USUAL?

    Why are you here if you aren’t interested in what i actually have to say?

    Btw, was NY, MD and WI also stupid? OR DID YOU FUCKING REFUSE TO READ THE WHOLE FUCKING POST AS USUAL?

    Aaron Worthing (e7d72e)

  12. When you say dumb creature, are you referring to kmart, Willie the racist hilljack, or Hax?

    JD (194dc5)

  13. 828.02 Definitions.—In this chapter, and in every law of the state relating to or in any way affecting animals, the word “animal” shall be held to include every living dumb creature;

    So they didn’t ban all sex with a human being — just sex with liberals, who would clearly qualify as “living dumb creatures”.

    Rhymes With Right (8d63ec)

  14. Dustin, don’t be silly. Legislation is not science and does not use science’s terminology. It uses the terminology of law.

    OK, that’s a fair point, but we’re talking about thousands of years of the term ‘animal’ as a board category.

    I think this law should be written more clearly.

    Dustin (c16eca)

  15. I think this law should be written more clearly.

    Dustin, I challenge you to cite me just one law, from any jurisdiction, that uses the term “animal” to include humans.

    Milhouse (ea66e3)

  16. No, Dustin, you are falling for the nonsense promulgated by those who thought they had a “gotcha” moment but didn’t. Importing a science definition where it had no business, and simply isn’t used.

    SPQR (26be8b)

  17. Dustin — presuming that your objection is intended to be legitimate and not dilatory, it is important to remember that different fields have slightly different vocabularies.

    Rhymes With Right (8d63ec)

  18. Dustin

    the law is as clear as it comes. yes, maybe we want to change “dumb creatures” to “non-human animals” in that definitional statute, but bluntly, NO ONE is going to get confused about what it means. it is already as clear as possible. The courts aren’t going to be confused and nor is anyone else, except for some smart ass scientist who is ignorant of how ignorant he is.

    As legal terms go, this is pretty damn clear.

    Aaron Worthing (e7d72e)

  19. “I think this law should be written more clearly.”

    Why should the law be rewritten to accommodate the moronic nit-pickings of pencil-necked geeks–geeks who are militantly proud of their inability to understand of anything that happens outside of the lab?

    pst314 (49d034)

  20. Dustin, cite one law, from any jurisdiction, that uses the term “animal” to include humans.

    Comment by Milhouse

    Well, what I’m specifically asking for is that the law say “except human beings”. That’s because treating other animals and people the same is absurd. Obviously, then, it’s stupid to ask for an example of the absurd.

    I’m asking for the law to be written more plainly and clearly. If a term is contrary to the dictionary definition, it’s important that the legal definition be specifically stipulated.

    Anyway, you often rely on a pedantic reliance on a dictionary definition to argue against a term’s meaning that is in more popular use. I think the reason you go the opposite of what I’d expect is that you occasionally conflate your religion with fact (no offense intended).

    Also, I think ‘dumb creature’ is a bit ambiguous. Sure, a reasonable judge will handle it fine, but we can’t expect that. What’s so hard about saying ‘except a human being’? BTW, if Florida does this, obviously I stand corrected about the quality of the law’s construction.

    Dustin (c16eca)

  21. I am still stuck on why the Florida legislature felt that the problem of people having sex with animals is of such paramount importance.

    wtf is going on down there?

    Liberty60 (de903c)

  22. Dustin

    i think you are really getting hung up on something, here.

    i mean let’s suppose a Fl judge interpreted this to ban sex. hell, let’s say the Fl S.C. says it?

    then a federal court would declare the law void as it applies to humans, citing Lawrence v. Texas (so that POS decision has some benefit).

    But why would any court WANT to ban all sex? you only have to worry about crazy judges inserting their politics, when their politics leads them toward that bad conclusion.

    you can never eliminate every potential misinterpretation. this does more than good enough.

    Aaron Worthing (e7d72e)

  23. I see you still can’t cite any law, from any jurisdiction, that uses “animal” to include humans. Every law that references animals, anywhere in the English-speaking world, means it exactly the same way, to exclude humans. Of all the thousands of such laws, not a single one bothers to specify that humans aren’t animals, because everyone knows it. Hell, even PETA knows it!!! It’s People for the “Ethical” Treatment of Animals! Not Animals for the Ethical Treatment of Other Animals. And the various Societies for the Prevention of Cruelty to Animals also confine their attention to, well, animals. And, of course, nobody has ever accused People Eating Tasty Animals of cannibalism! If you think the Florida legislature should have been the first to specify that “animals” doesn’t include humans, it’s up to you to explain why, because the law is perfectly clear to everyone else.

    Milhouse (ea66e3)

  24. i think you are really getting hung up on something, here.

    Yeah, probably, actually. If my interpretation of the law is absurd, then it’s obviously not a serious problem.

    However, let me clarify that I was specifically responding to Milhouse’s claim that it’s just some blogger’s opinion that humans are animals. That is incorrect. In fact, well written laws have recognized that they need to say ‘except for human beings’ when criminalizing animal cruelty because humans are animals. It’s not really an opinion, but rather just a word grouping plants and animals into different categories for discussion, since Aristotle’s time.

    Sure, the law isn’t really going to lead to anyone going to prison for sex with a person, but I very much think the law can be written better, so why not have it written better?

    Dustin (c16eca)

  25. Well, what I’m specifically asking for is that the law say “except human beings”.

    Why should it? What other law does so? Humans aren’t animals. Not in English, anyway.

    Milhouse (ea66e3)

  26. In fact, well written laws have recognized that they need to say ‘except for human beings’ when criminalizing animal cruelty because humans are animals.

    Really? Then you’ll have no problem citing such a law. I’m waiting.

    Milhouse (ea66e3)

  27. In fact, well written laws have recognized that they need to say ‘except for human beings’ when criminalizing animal cruelty because humans are animals.

    No.

    SPQR (26be8b)

  28. Milhouse

    > Humans aren’t animals. Not in English, anyway.

    You’re wrong. Sometimes when we talk, we say humans are animals. and sometimes when we talk, we don’t. we are all over the place.

    But in law, a human is not an animal, which is my point.

    Dustin

    well, you are absolutely right that among biologists that there is no question that a human is “scientifically” an animal. Humans are truly unique of all life on this planet mainly because where other life uses acclimation and evolution to adapt, our primary method of adaptation is our brains. So for instance, where an animal has go gradually develop a thick fur coat to live in Alaska, we can go find a creature already living there, kill it, take its coat and wear it.

    So on the biological level we have commonalities between us and the other animals that make it necessary to have a classification that includes both humans and the other animals. “animals” makes sense for that.

    But because our lives are so radically different from the other animals, when talking about ourselves it is natural to think of ourselves as not animals at all.

    anyway, while it is not biologically accurate to say humans are not animals…

    http://www.google.com/search?hl=en&source=hp&biw=1280&bih=621&q=i'm+not+an+animal&aq=f&aqi=g3g-m2&aql=&oq=

    it is really, really normal to say it. And i think everyone knows it is normal.

    There is zero chance of legal confusion. And bluntly, i don’t think anyone would ever stop having adult, consensual sex for fear of being prosecuted.

    Aaron Worthing (e7d72e)

  29. But because our lives are so radically different from the other animals, when talking about ourselves it is natural to think of ourselves as not animals at all.

    Frankly, yes, as a legal matter, for almost all things, humans are quite different from animals generally. We have all the legal agents, of course.

    But this is not such a broad problem I’m bringing up. Simply when the law talks about creatures generally, if it means creatures except for human beings, it should spell that out (and I suggest in better terms than just ‘only dumb creatures’ which is actually potentially over and under inclusive).

    That’s because the word animal includes humans, but the word animal is not used for most of the laws that affect us.

    Dustin (c16eca)

  30. But why would any court WANT to ban all sex?

    Doesn’t getting married accomplish this end state anyway? j/k

    vor2 (6c8528)

  31. Well, there are two things in play here. First is the acceptable prejudice against the South. Right? People who never dream of using a racial epithet (or even an insulting epithet about intelligence) about folks in the inner city think it is perfectly okay to snicker about Southerners being inbred stupid hicks.

    As for the “Human versus Animal” business, I had a friend in college who didn’t receive honors (despite her GPA) because she referred in her senior presentation to evolution occurring in both humans and animals.

    Like the saying goes, some people would rather have a cause than an effect.

    Simon Jester (c8876d)

  32. Simply when the law talks about creatures generally, if it means creatures except for human beings, it should spell that out

    So cite a law, any law, that does so.

    Milhouse (ea66e3)

  33. AW:

    you find the term “dumb creature” ambiguous?

    Yes, actually, I do. Frankly, it adds to the ambiguity, as there are many animals (dolphins, certain breeds of dogs) that I do not consider dumb.

    You disagree? You think all animals are dumb? Okay.

    And I’m sure we can find a third person who thinks dolphins are dumb, but not certain breeds of dogs.

    Three people, three different points of view. And that proves that the language is ambiguous. QED

    My only point is that good legislation is written in a way that doesn’t force the reader to thumb through other statutes, or Black’s Law Dictionary. By the definition, the Florida statute cannot be said to be well-written. But then again, most legislation isn’t well-written.

    Kman (5576bf)

  34. Aaron, this is what the stalkerboi wants.

    You already know the goal of his posts, where you are concerned. He enjoys it when you get angry.

    Just laugh at him. He genuinely is reflexive and doesn’t read. And has a weeeeiiiiiirrrrd fixation on you.

    It’s not just my opinion, either.

    Simon Jester (c8876d)

  35. Kman, you really this clueless? “Dumb” means non-talking.

    SPQR (26be8b)

  36. I didn’t even realize what I was saying would be controversial, actually.

    Figures, though.

    I do admit this is a silly legal issue to worry about.

    Dustin (c16eca)

  37. Kman

    > Yes, actually, I do. Frankly, it adds to the ambiguity, as there are many animals (dolphins, certain breeds of dogs) that I do not consider dumb.

    I don’t mind non-lawyers being ignorant of how that phrase has decades of litigation hashing out what the term means, but for a lawyer not to know that…

    > My only point is that good legislation is written in a way that doesn’t force the reader to thumb through other statutes, or Black’s Law Dictionary

    Right so every statute should self contain every definition of every term. So here’s how you would write a statute, apparently.

    > A person may not… [k]nowingly engage in any sexual conduct or sexual contact with an animal

    > the term “person” means a member of the speicies homo sapiens.

    > the term “may” means… [etc.]

    > the term “knowlingly” means…

    > the term “engage” means…

    > the term “sexual conduct” means… (the last democractic president had some trouble with this one)

    > the term “sexual contact” means…

    > the term “animal” means…

    So by your vision of things, our statute books would increase by at least five times.

    Aaron Worthing (e7d72e)

  38. that phrase has decades of litigation hashing out what the term means

    I should add, then, that I don’t like ‘common law’ or whatever they call it when a judge fills in the blanks.

    I want to be able to go to the state’s website and read a law and understand it.

    I do realize and respect the simple fact that the law must have some grey areas and limits drawn out by the courts and the process. Things will come up that were not anticipated, for example.

    But if it’s possible to easily write a law in a way everyone understands, it needs to be done that way. If a judge has to clarify a law, that law should be fixed if it’s possible. I honestly consider it defective if there is a good faith disagreement about what it means.

    Dustin (c16eca)

  39. And in this case, no, there is not a good faith disagreement about what the law means, I guess I should honestly add.

    Dustin (c16eca)

  40. “And bluntly, i don’t think anyone would ever stop having adult, consensual sex for fear of being prosecuted.”

    A.W. – No, they usually stop for other reasons, like because they got married.

    daleyrocks (bf33e9)

  41. vor2 beat me to that.

    daleyrocks (bf33e9)

  42. “Kman, you really this clueless? “Dumb” means non-talking.”

    SPQR – Son of Sam’s dog talked to him, didn’t it?

    daleyrocks (bf33e9)

  43. daleyrocks, yes and Kman can have sex with that dog with my blessing.

    SPQR (26be8b)

  44. Kman wants to have sex with himself.

    DohBiden (15aa57)

  45. Kman: “animals… that I do not consider dumb.”

    In his magnificent stupidity (in case you haven’t yet guessed, “dumb” here means “incapable of human speech” — and no, birdsong or coded lowing or barking, whilst clearly forms of communication within their own realms, are not “human speech”), Kman inadvertently makes a good argument for his case — viz., I’m increasingly inclined to think of leftists like Kman as “dumb animals” rather than “humans,” so maybe the law really _should_ be clearer to avoid confusion.

    But then again if leftists are henceforth to be classified as “animals”, then that means there’s an awful lot of naïve college girls who I won’t be allowed to sleep with, under this law.

    So put me down as, “against.”

    d. in c. (7c90f3)

  46. People like Kman are the reason why modern laws are 1000+ pages. Compare that to 6 pages for the US Constitution including the Bill of Rights.

    Makewi (0864f9)

  47. Oh and don’t worry Kman, this law doesn’t grant your dog the ability to dial 911. You’re probably still safe.

    Makewi (0864f9)

  48. (in case you haven’t yet guessed, “dumb” here means “incapable of human speech”

    Of course, many humans are dumb creatures, or creatures unable to speak. Why beat around the bush at all? The law refers to all non human being animals. I guess the process somehow batted around controversies about this issue for some reason, and settled on a clumsy way of saying this, and we all get what they mean and can operate off that like adults, but we can do a little better on this minor legal issue. Whether it’s worth freaking out over is one thing, but we should do our best even if it’s only a minor improvement.

    Dustin (c16eca)

  49. Compare that to 6 pages for the US Constitution including the Bill of Rights.

    Comment by Makewi — 5/12/2011 @ 9:54 am

    I wish the US Constitution was a lot more specific.

    Either avoid a bill of rights altogether, keeping the government from outlawing much of anything, or make crystal clear that all political speech is always protected, no matter what Mccain or Obama think. Make it crystal clear that my right to bear arms includes owning guns and ammunition and moving them where I need to go. Make it crystal clear what is cruel punishment, or unreasonable searching, or what kind of trial I am entitled to.

    It was only very, very recently that the Court clearly admitted I had a right to own a pistol under the US Constitution.

    I don’t mean I need the constitution to spell out specifics, but rather to very clearly explain what rights are broadly protected. Somehow, our right to unabridged speech doesn’t include a right to inciting riots and slandering people, or lying under oath, and this is not controversial (and wasn’t when ratified).

    I wish we could assume we don’t need to spell it out.

    Dustin (c16eca)

  50. Dustin @ #49 — “many humans are… unable to speak.”

    Sorry to split hairs, but the legal concept refers to categories or classes of creatures, not to individuals. Human beings are a class of beings which are generally capable of human speech. If a particular human individual is not so capable, it doesn’t put him/her outside the category.

    This sort of elemental misunderstanding is the kind of thing that’s responsible for a great deal of mischief in the world — including about 60 per cent of leftist thinking (or what passes for “thinking.”)

    I’m starting to agree with Russell and Wittgenstein about language.

    d. in c. (7c90f3)

  51. dustin

    although individual humans are “mute” the human species is not a “dumb animal” because the mainstream of our species can. that’s how the court reads it. seriously.

    You’re worrying too much.

    Aaron Worthing (e7d72e)

  52. Can we ban muslim jihadists.

    DohBiden (15aa57)

  53. You’re worrying too much.

    Yeah. I think this is just not the best example of the point I was hoping it would make.

    Dustin (c16eca)

  54. Sorry to split hairs, but the legal concept refers to categories or classes of creatures, not to individuals.

    btw, I appreciate the clarification.

    Dustin (c16eca)

  55. d. in c.

    > I’m starting to agree with Russell and Wittgenstein about language.

    what did they say?

    Aaron Worthing (e7d72e)

  56. If you want to sleep with your monkey, you need to teach it how to talk.

    Which is not inconceivable if you somehow implant a human or artificial voicebox into the creature.

    But I guess the rest of the species is not able to talk, so as a species, they are still off limits. Thanks to the clarification.

    Sorry, Kman. No monkeys for you. Until someone genetically creates a new species of talking goats or something, or Florida changes the law to say ‘except for human beings’.

    Dustin (c16eca)

  57. Comment by Dustin — 5/12/2011 @ 10:01 am

    I think “Congress shall make no law…” is pretty specific. The problem isn’t the language, it’s that once we allowed certain exceptions to this it became easier to allow others. IMO.

    Makewi (0864f9)

  58. I don’t mind non-lawyers being ignorant of how that phrase has decades of litigation hashing out what the term means, but for a lawyer not to know that…

    Again, you are missing my point. I don’t think statutes should be written for lawyers. I think they should, to the extent possible, be written for non-lawyers.

    Right so every statute should self contain every definition of every term. So here’s how you would write a statute, apparently.

    No, but smart legislative writers should be able to anticipate the terms where ambiguity might arise. That’s part of a lawyer’s training, you know — it’s not about winning litigation/arguments, but knowing how to avoid them in the first place. It’s trouble-shooting BEFORE there’s trouble. So, as I say, a good legislative lawyer/writer would have avoided this ambiguity.

    Kman (5576bf)

  59. AW: “what did they say?”

    Well, their views changed over the years I guess, and also my degree is not strictly in philosophy (so others feel free to correct me if need be), but what I was referring to was their idea that if language could be reformed to remove all of its natural opacities and ambiguities, so that words and grammar had a sort of precision and distinctness that resembled mathematical reasoning, then many or most philosophical problems (including legal ones, insofar as the law depends on philosophy) would pretty much evaporate overnight — because a lot of what we think of as “problems” are really just mutual misunderstandings based on our multiple, mutually independent constructions of language.

    ‘Zat make sense?

    Some wag or another once said, in praise of the logical/grammatical rigor of the French language, “When you have something important to say, always say it in French — because it is impossible to be misunderstood in French.”

    He was exagerrating, bien sur… But you get the idea.

    d. in c. (cae88c)

  60. Kman

    > No, but smart legislative writers should be able to anticipate the terms where ambiguity might arise.

    You’re a working lawyer and you think it will only arise on one of those terms?

    My God, you are seriously incompetent in your profession.

    Aaron Worthing (e7d72e)

  61. d in c

    hell, yes that makes sense. its a pet peeve of mine. i hate it when people get into hour long arguments about their definitions of things.

    i usually try in vain to get them to cut it short and get to the essence of the thing.

    Aaron Worthing (e7d72e)

  62. You’re a working lawyer and you think it will only arise on one of those terms?

    Well, it HAS arisen on one of those terms already. And no, I don’t think it is likely to arise on the others.

    My God, you are seriously incompetent in your profession.

    You written much legislation, have you?

    Kman (5576bf)

  63. I think “Congress shall make no law…”

    Except that it means that congress can make laws abridging speech if it is certain kinds of speech. And that is not controversial.

    Like I said, I’d love it if we didn’t need to spell it out. Clearly the first amendment protects political speech and all manner of speech that is not libelous or otherwise criminal for some very good reason.

    it’s that once we allowed certain exceptions to this it became easier to allow others. IMO.

    Exactly, that is the problem. A very generalized and brief constitution can’t work with human beings and generations of attempts to get around the constitution.

    I am conflicted, because I am motivated primarily by an interest that laws be as easy to understand as possible. So if they are super long, perhaps that is a problem. But I’ll opt for clarifying language as needed. I think the first amendment is a great example of a need for more clarity on what precisely is absolutely protected. I think many laws would not exist today if that amendment was written more clearly.

    Dustin (c16eca)

  64. Mr. Worthing – Well done smackdown of an arrogant, smarmy jerk who – because he thinks being “a graduate student” in science makes him better than everyone else – thoroughly beclowned himself.

    SVT (97d6f6)

  65. Do any of these laws technically prohibit the eating of “mountain oysters”?

    LYT (2de54b)

  66. Dustin

    You will never be able to make a law which can account for every possible circumstance. That is why we have the written law and case law to guide us.

    Makewi (0864f9)

  67. You will never be able to make a law which can account for every possible circumstance. That is why we have the written law and case law to guide us.

    Of course not, and I recognize the need for the law to handle the unpredictable.

    That’s not really what I’m talking about. There is a huge gulf between what we have now, and a legal system that is clear enough to really make it legally inconceivable that the government would outlaw some forms of political speech.

    Dustin (c16eca)

  68. And that is just one example among so many.

    If it’s not possible to write the law any more clearly, and you still have need for judges to handle the hard cases, I am completely satisfied by that.

    Dustin (c16eca)

  69. Hey Kman come here this post has you written all over it………..oh god love ya who am I kidding?

    DohBiden (15aa57)

  70. Frankly, it adds to the ambiguity, as there are many animals (dolphins, certain breeds of dogs) that I do not consider dumb.

    — Kman likes him the Flipper and the Lassie.

    “Here, girl. Lay down. Roll over. Goooood dog!”

    Icy Texan (c84ca9)

  71. An old joke that seems relevant here…

    Q: How many grad students does it take to screw in a lightbulb?

    A: First define your terms.

    d. in c. (17012e)

  72. Kman

    > And no, I don’t think it is likely to arise on the others.

    But you are certain that the police are going to start arresting consenting adults for sex…

    Hahahahaahhaahahahahahahahahaha

    Aaron Worthing (e7d72e)

  73. You can’t “violate” Godwin’s Law. It’s descriptive, not proscriptive.

    “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”

    You also can’t “violate” it because occasionally that is very, very rarely, Hitler comparisons are valid.

    Lakoff (f496aa)

  74. You can’t violate Godwin’s Law. It’s descriptive, not proscriptive. It states,

    “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”

    Ocassionaly, that is, it’s not impossible that, Hitler comparisons may be valid.

    Lakoff (f496aa)

  75. Lakoff, that’s what Mike Godiwn said (And indeed, he was also saying that most Hitler references cheapen the ones that ought to be made).

    But common usage for Godwin is the even dumber ‘you mentioned Hitler, so you lose’ law. It’s just the way it is. Go to fark or some forum like that and compare someone to Hitler, and see.

    Dustin (c16eca)

  76. Lakoff

    i thought the law was that whoever brought up hitler first loses. eh, oh well, i think you guys knew what i meant.

    Aaron Worthing (e7d72e)

  77. I can recall a high school seminar in political philosophy (greatest hits from Plato to JS Mill) where there was an informal rule: anyone who built a generalized argument (viz. not casually referenced, but deliberately making a foundation) w/r/t the aberrations of Nazi Germany or apartheid South Africa was pretty much laughed out of town. It wasn’t a categorical automatic FAIL, just an entire classroom of raised eyebrows.

    That seems about right.

    d. in c. (af7a3a)

  78. By the way, Aaron, the heading on this post is wrong. I’m pretty sure you meant “against“, not “towards”.

    Milhouse (ea66e3)

  79. I seem to remember, vaguely, a time when Balloon Juice wasn’t a home to rabidly aggressive offensive stupidity.

    It might have been around 2003 or so?

    (Reminds of the time before Andrew Sullivan revealed that he was barking mad…)

    Sigivald (198c36)

  80. I think “Congress shall make no law…”

    Except that it means that congress can make laws abridging speech if it is certain kinds of speech. And that is not controversial.

    As I understand it, it was originally meant to have no exceptions, because it originally applied only to Congrefs, not to the states. The framers anticipated that there would be no federal laws restricting speech; any necessary speech-restricting laws would be made by the states. It’s only after the 14th amendment passed, and the Supreme Court decided that it incorporated the 1st amendment and applied it to the states, that it became necessary to read exceptions into it.

    Milhouse (ea66e3)

  81. But common usage for Godwin is the even dumber ‘you mentioned Hitler, so you lose’ law. It’s just the way it is. Go to fark or some forum like that and compare someone to Hitler, and see.

    It may be a fact that a lot of idiots pretend there is such a “law”, and falsely ascribe it to Mike Godwin, but why should I acknowledge it? It’s no more valid than a “law” I just made up that says the first person to mention asparagus in a conversation wins. Asparagus. I won. See how that works? Godwin is a smart guy, and doesn’t deserve to have such a stupid “law” pinned to his reputation.

    Milhouse (ea66e3)

  82. Well, it HAS arisen on one of those terms already.

    No, it hasn’t. The meaning of the term is clear, and if any lawyer were to suggest in court that it’s ambiguous he’d be Rule-elevened (or whatever the Florida equivalent is) immediately.

    Milhouse (ea66e3)

  83. Yes, Sigivald, Balloon Juice used to be a sane blog. I’m not sure what happened to John Cole, or when, but at some point he went Charles Johnson.

    Milhouse (ea66e3)

  84. Milhouse # 81: OK then, let’s just call it Godwin’s Generality.

    ‘Zat work for yuh?

    d. in c. (af7a3a)

  85. From a 1981 Florida Supreme Court case:

    We find Florida’s statute to be even more specific than Hawaii’s. Animal is defined as “every living dumb creature.” § 828.02, Fla.Stat. (1979). This definition excludes human beings from the commonly understood definition of animals. People of common intelligence are able to discern what are and are not animals. There can be no doubt that the legislature intended for raccoons to be included in this definition. Appellant was sufficiently apprised that it would be a violation of the statute to torture a raccoon. We therefore hold that the terms “animal” and “every living dumb creature” are not unconstitutionally vague.

    Northeast Elizabeth (c780a0)

  86. Nice find Elizabeth.

    SPQR (26be8b)

  87. People of common intelligence are able to discern what are and are not animals.

    At the risk of being redundant, QED – therein lies the problem.

    A Fine Bunch of Rubens (92ab81)

  88. Kman,

    There have been numerous attempts in legislatures all over the nation and even at the US Congressional level to try and write any and all statues in “plain English”. In nearly all of the time, they are defeated by lawyer lobbist simply cause they are looking, like any good lawyer, for the wiggle room for thier client. It is just the nature of the beast, they complain about the ambiguities of how statues are poorly defined and then shoot down any attempt to the statues in plain English. That is also one of the advantages of how law is supposed to work as well as I understand it, being the layman that I am, the lawyers and judges help to further refine the law through thier rulings and decisions.

    Charles (4ea998)

  89. Thank you for the link NE Liz.

    I’m not surprised by the finding that what is and isn’t an animal was defined well enough, but the ‘unnecessary’ and ‘excessive’ explanations seem a little fuzzy to me.

    Regardless, I know it’s a pie in the sky fantasy that the legal profession would actually try to write all the laws in a way that doesn’t require much good faith debate over their meaning.

    Dustin (c16eca)

  90. Comment by Charles — 5/12/2011 @ 4:06 pm
    Actually, it’s very often the reverse–if you wrote it in “plain English”, you would often have laws that are either too vague and would result in much litigation forcing the courts to guess at what the legislature meant, or leave a lot of the wiggle room you refer to. A lot of legalese is really technical language, in the same fashion that every field of science and engineering has technical language. So you either write it very specifically, or your include legal terms whose meaning is already known but may sound like jargon to non lawyers.

    kishnevi (d785be)

  91. you would often have laws that are either too vague and would result in much litigation forcing the courts to guess at what the legislature meant

    Well, there is still a way to write laws that are easy to understand and leave a lot less wiggle room.

    A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

    versus

    The following rights shall not be infringed by the US Government:

    To keep and bear weapons, including edged weapons, firearms, and ammunition, and excluding bomb, rocket, nuclear, biological, and chemical weapons.

    To produce ammunition.

    To transport weapons, with the exception of x,y,z (prisons, secure places like that)

    To protect one’s home from intruders.

    That’s just a 20 second stab at it, but I think a lot of laws could be written that way.

    The right to express an opinion about any person or issue shall not be regulated or infringed by the US Government.

    I think the 8th amendment could really use a little specificity in particular.

    Dustin (c16eca)

  92. Many anthropoligists now believe that it was women who invented language.

    Apparently to satisfy their instinctive need to complain.

    Punslinger612 (7b10c7)

  93. Comment by kishnevi — 5/12/2011 @ 5:49 pm

    Kishnevi,

    Thanks for the clarification. I just remember seeing some story about 12 or 13 yrs ago on PBS that had a talking point for a couple of minutes talking about why there is so much legalese in a statue or law and that to numerous attempts to get them written in English can’t ever seem to make it out of committe in the various legislatures. It was very interesting show because they covered the overall in detail how a bill becomes a law at all levels of government. With all the warts and everything that happens during the process.

    Charles (4f8b94)

  94. See, lawyers don’t speak English. They only sound like they do.

    {^_-}

    JD (bcdcf2)

  95. One wonders if YOU speak English, “JD”, since Patterico has implored you several times to change your handle.

    Of course basic respect needs no spoken language. All it requires is an honest gesture.

    Icy Texan (6baa4d)

  96. Why does he want him to change his handle?

    DohBiden (15aa57)

  97. Ditto on Icy Texan. I can remember at least three times that Patterico has told “{^_-}\nJD” to change the name s/he posts under. There has been no sign that s/he has even seen those instructions. If I were Patterico I’d ban the poster until I saw some cooperation.

    Doh, the reason is obvious: because we already have a JD posting here.

    Milhouse (ea66e3)

  98. Doh

    That JD is different from the more regular JD. and indeed that JD is a girl, which resulted in hilarious confusion on my part once.

    Aaron Worthing (e7d72e)

  99. I think Southern Fried Scientist forgets, or doesn’t know, the rules of statutory interpretation. Most courts will look at the plain meaning of the words used, the legislative intent, and interpret the statute narrowly, all of which negate his crazy theory about banning all sex among humans.

    He’s probably one of those guys who argues that real scientists are superior to pseudo-scientists, like political scientists.

    Rochf (f3fbb0)

  100. roch

    that’s a good point, too. i forgot the doctrine of lenity, which interprets all criminal statutes narrowly.

    Aaron Worthing (e7d72e)

  101. Actually the terms and concepts that are or could be misconstrued are defined. Thus jacking off a bull is excluded from regulation if it is done as a “animal husbandry practice.” And sticking your hand into a heifer’s vagina (that anecdote in James Herriot’s book put me off Veterinary science) is similarly excluded if it is an accepted veterinary procedure.

    Have Blue (854a6e)

  102. Oh wow, you’re kidding, right?

    It’s no wonder y’all have been entirely unsble to sustain any right-leaning comedy show: you have no sense of humor.

    You, sir, are a humorless wanker if you think my gene pool joke reflected a belief on my part in “genocide.” Are you out of your mind? My mother is Jewish, you ninny.

    But don’t let me interfere with your ridiculous display of poutrage.

    Also, you owe me a beer since I spewed mine directly out of my nose upon reading this hilarious display of Godwin-based hysterics.

    I mean, really. So much ridiculous, one hardly knows where to begin.

    Angry Black Lady (cf54c8)

  103. It’s no wonder y’all have been entirely unsble to sustain any right-leaning comedy show: you have no sense of humor.

    I think you’re attempting to say he didn’t know this was a joke, but he obviously did when he mocked how someone would think genocide is funny.

    So what if you’re Jewish? That has no bearing on your ability to be a good or bad person. As Aaron notes, you are stupid to associate opinions with genes. If you think the idea of removing Tea Partiers from the gene pool is funny, then you are making fun of genocide. How amusing that you’re tripping over yourself to let everyone know all the victim classes you belong to, in your anger.

    Your defense that you don’t seriously advocate genocide doesn’t seem to be directed at anything anyone actually said. Also, you don’t strike me as funny.

    Dustin (c16eca)

  104. “My mother is Jewish, you ninny.”

    Some of my best friends are black! And by the way, ha ha! it’s so funny when an entire group of people is wiped off the face of the earth! Dish it out but you can’t take it. It’s ok for you to joke about genocide, then you turn around and parse other every word sent your way looking for signs of persecution and ‘white privilege’ and even throwing that phrase at other minorities on the grounds that they’ve internalized the bias. Sorry, I’m not much of an expert on race relations I’ll admit but if you think joking about genocide is funny it looks like you’ve internalized something nasty of your own. Practice what you preach, or at least stop being so damn melodramatic when people call you on your failure to do so.

    You really need to make up your mind and be consistent about your position, and stop being so damn self-important. Greenwald and Hamsher don’t care what your first name is or where you’ve worked, and there isn’t some big conspiracy to send people after you. It’s simple. You have a habit of flying off the handle and saying dumb stuff, and amazingly enough people see it and respond. I don’t know if you’re aware of what you’re doing and just love the drama and attention or don’t realize how much of this you create for yourself, but this isn’t some big plot. Don’t dish it out if you can’t take it. You’ve set yourself up for constant stress by constantly attacking people in crazy over the top terms, yet you pair that with constant confusion about why people are always being so mean. I imagine this will trigger another day of wrist-to-forehead “oh no, they’re after me for the nth consecutive day” whining on Twitter but sorry. Nobody did this, this is you logging onto a conservative site to try and justify joking about genocide based on having a jewish mom. The only thing noteworthy would be if you don’t catch a bunch of crap for it.

    stankleton (3def13)

  105. Almost forgot; Angry Black Lady, please spare me the obligatory Derailing for Dummies link. Between that and the white privilege stuff it seems there’s always a fallback cliche handy for why it’s never ok to critice you. If the race stuff fails, you’ll even go with they’re picking on me because I’m a girl! Stop trying to set yourself up as unimpeachable. I’m not speaking in terms of race or classifying all people of color as being outrage addicts, or saying you’re acting this way because you’re black or anything of the like. I’m talking about specific behavior that you as an individual repeat over and over while constantly pointing the finger at anyone but yourself. I don’t know why you do it, and frankly that isn’t much of a concern to me given the way you treat other people, but it’s glaringly obvious to me, and probably to others, even if you can’t see it yourself.

    stankleton (3def13)

  106. Angry Black Lady, do you know who else is Jewish? THE AUTHOR OF THIS BILL.

    Her name is Nan Rich. She’s a Democrat, from Sunrise, in Broward County.

    She’s the Minority Leader of the State House.

    She’s also the former President of the National Council of Jewish Women, so it shouldn’t come as a surprise to anyone that she’s Jewish.

    And her bill passed both houses of the FL Legislature UNANIMOUSLY.

    It’s funny when the far-out left starts defining everyone to their right, including most of the Democratic Party, as right wingers.

    NickM (f88e36)


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