Sometime last year, I heard an attorney who has led the litigation of dozens of key civil rights cases make an interesting point that has stayed with me.

While discussing the civil penalties available after a finding of liability under the federal Fair Housing Act, he made an argument that the statutory language which creates an incremental system of fines for "previously adjudged" violations of the Act could be applied to demand increased penalties for multiple penalties in a single case. the statute in question, 42 U.S.C. 3612(g), specify civil penalties no exceeding $11,000 for a "first offense," $27,500 "if the respondent has been adjudged to have committed one other discriminatory housing practice during the 5-year period" preceding the filing of the complaint, and $55,000 "if the respondent has been adjudged to have committed 2 or more discriminatory housing practices during the 7-year period" preceding the filing of the complaint.

The argument: a strict interpretation of the statutory language could find that liability on the first "count" of a multiple violation charge necessitated an increased penalty for liability on the second and subsequent "counts."

For example, if an individual or corporation facing a single complaint which cited multiple violations of the Act (e.g. 3604(a), refusal to rent, and 3604(c), discriminatory statements) was found to be liable under the Act for both violations, a judge or hearing commissioner applying a strict interpretation could assess the second tier of the penalty structure (i.e. an amount not exceeding $27,500). That is, the Respondent would be found to been "previously adjudged" to have violated the Act -- the first "count" -- for purposes of assessing a penalty for the second of the two violations, even though both referred to the same incident or act.

Our instructor said of strict interpretationists on the Right, "If they're going to read statutory language strictly as a means to their end, why can't we do the same?"

I bring this up because of a FindLaw column regarding the constitutionality of the "NSA wiretapping" from a strict interpretationist viewpoint.

I believe that I believe that a strict interpretation can be -- and indeed should be -- the basis for analysis of a legal question. When a strict interpretation, however, is so strict that it stifles a rational application of the intent of the law to the present set of facts -- which demands consideration of the context (i.e. modernity) -- the result is not sound legal analysis. I guess my opinion is that "progressivism" in legal analysis can benefit from a strict interpretation of statutes.

An example for another day's discussion would be a strict reading of the Second Amendment and its legislative history. It is "judicial activism" to read the Second Amendment to allow weapons caching by private citizens for purposes of impressing the neighbors as opposed to permitting the formation of the Virginia militia in the colonial years prior to the formation of an organized army at the national level.
- posted by C @ 5:32:00 PM