Friday, June 27, 2003

Bending Rules 

Lots of e-debate on campus this week via our discussion list. When should rules be bent? When should laws be broken? When should the Constitution be interpreted creatively? When should marriage vows be twisted? A similar theme, with predictable responses from most. Here�s some of what I wrote back:

Apparently there is a �rule� against state employees� using taxpayer-paid, on-line computer-listing services for �personal gain.� To the extent that employees� use of this service to sell their cars might allow them to avoid paying want-ad charges to a proprietary publisher, that would clearly and literally constitute an �against-the-rules� �personal gain.� Some, however, argue, not only that such a �personal gain� would be de minimus, but that a greater �community good� would be effected if the rule could be �bent.�

Similarly, I note that Justice O�Connor, writing for the 5-4 majority in the Michigan Law School case (Grutter v. Bollinger) seemed to argue that the Michigan Law School�s admission policy�s apparently obvious literal violation of the 14th Amendment to the U.S. Constitution - as it provides �equal protection� to individual �persons,� rather than �groups� - is de minimus, relative to the greater �community good� that educational diversity can bring. "And besides," O'Connor opined, "we hope to stop this reverse discrimination in, oh, maybe 25 years."

Reminds me of a recently espoused (pun intended) argument: �I did not have sexual relations with that woman. It�s only oral sex; and besides, I hope to stop doing it in the not too distant future.�

As a minority of one on this campus, I write only to suggest that when the Constitution needs clarification, let�s think about amending it, rather than creatively interpreting it. Article V spells out how to do it; and we�ve done it 27 times in the past. When laws need adjustment, let�s try enacting new ones, rather than breaking old ones. And when rules need tweaking, let�s try rewriting them, rather than bending old ones.

On the other hand, to paraphrase Robert Frost,
- - - - -

Before I wrote more rules I'd ask to know
What I was ruling in or ruling out,
And to whom I was like to give offence.
Something there is that doesn't love a rule,
That wants it down. I could say 'Elves' to him,
But it's not elves exactly, and I'd rather
He said it for himself. I see him there
Writing more laws on stones grasped firmly by the top
In each hand, like an old-stone savage armed.

And he likes having thought of them so well.
He says again, "Good rules make good neighbors."