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Wednesday, January 18, 2006
Cutting the original intent in half
Scalia lives in a grand world of absolutes. So, far example, when interpreting a 1970 act substantively amended in 1984 and applied by the attorney general in 2001, the only correct course is to start looking up words in your 1954 Webster's. From Scalia's dissent at page 23:
As used in this section, "prescription" is susceptible of at least three reasonable interpretations. First, it might mean any oral or written direction of a practitioner for the dispensation of drugs. See United States v. Moore, 423 U.S. 122, 137, n. 13, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975) ("On its face § 829 addresses only the form that a prescription must take .... [Section] 829 by its terms does not limit the authority of a practitioner"). Second, in light of the requirement of a "medical purpose" for the dispensation of Schedule V substances, see § 829(c), it might mean a practitioner's oral or written direction for the dispensation of drugs that the practitioner believes to be for a legitimate medical purpose. See Webster's New International Dictionary 1954 (2d ed.1950) (hereinafter Webster's Second) (defining "prescription" as "[a] written direction for the preparation and use of a medicine"); id., at 1527 (defining "medicine" as "[a]ny substance or preparation used in treating disease") (emphases added). Finally, "prescription" might refer to a practitioner's direction for the dispensation of drugs that serves an objectively legitimate medical purpose, regardless of the practitioner's subjective judgment about the legitimacy of the anticipated use. See ibid.
And the international version, no less. Here's the problem for Scalia. Webster's does not carry any particular force of law. No matter how handsome your volume might be. See, if Scalia had opened an American Heritage dictionary instead, he would have faced an interesting proposition:
2. a. A written order, especially by a physician, for the preparation and administration of a medicine or other treatment. b. A prescribed medicine or other treatment. c. An ophthalmologist's or optometrist's written instruction, as for the grinding of corrective lenses.
I don't pretend that this definition would change Scalia's mind. Likewise, I don't pretend that words have absolute meaning. Even further, I don't pretend that the absolute meaning of a word written in 1970 and interpreted in 2001 should be judged based on a definition from 1954. What Scalia doesn't say is why he chose the 1954 International Webster's as the final arbiter or word meaning. Maybe he owns stock? Neither Scalia nor Alito seem to have any qualms about participating in cases where they have a conflict.
Here's the key, though. We shouldn't be playing this out under false pretenses. Oregon wants to let dying people choose to comfortably end their lives. The Bush administration opposes that. We should have an adult discussion about the merits of the policy. Instead, we argue about the meaning of words like "prescription" and "control". We subvert the political process when the attorney general invalidates a state law on assisted suicide based on his authority to regulate narcotics. If Oregon permitted suicide based on a prescribed Chuck Norris roundhouse kick, Ashcroft would have been powerless to intervene. Or if Oregon permitted suicide based on consultation and agreement between two physicians and a prescription from a veterinarian, Ashcroft would have been stymied.
Is it time to put values issues directly on the ballot? In a country where separate but equal was a cherished value? In a country where, in many places, religious pluralism often means going to the right church twice a week? In a country where dragging gay men behind trucks is a value? It's scary, isn't, trusting the direction of our country to an immoderate populace. Seems like we have to do it, though, if only to talk to each other about substance for a change
