Dictum of the day, or on self-restraint

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to  say what the law is.”  Marbury v.  Madison , 1 Cranch 137,  177 (1803). That is easier in some cases than in others.  But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. / Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all  possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

King v. Burwell 576 U.S. _____ (2015) 21.

Dictum of the day, or just be positive

U okviru ovako postavljene nadležnosti (i misije), Ustavni sud BiH je kroz svoju dosadašnju praksu, uz primjetan oprez i samoograničenja, iskazao i respektabilan nivo ekstenzivnog  razumijevanja i interpretacije ustavnoga teksta („slovo i duh“ ustavne norme), te više ili manje doprinio uspostavljanju  visokih standarda u legislativi na svim nivoima vlasti u Bosni i Hercegovini (...) odnosno primjenom pozitivnog ustavnosudskog aktivizma, u više slučajeva demonstrirao zaista zavidnu i utemeljenu  interpretatorsku širinu i odgovornost (...) (Ipak) većina u Ustavnom sudu BiH, umjesto da ustavnu normu interpretira stvaralački i dinamički, postupila je nedopustivo formalistički. Oprez i samoograničenje koje je ovakvom interpretacijom Ustava sebi dao Ustavni sud u konkretnom slučaju, prema mome mišljenju, sasvim sigurno odudaraju od potrebe, ali i obaveze da ovaj visoki organ u  nerijetko zamršenim pitanjima ocjene ustavnosti (pa i u slučajevima koji imaju dalekosežan utjecaj i posljedice na odnose u Bosni i Hercegovini)  pokaže više hrabrosti i dinamičnosti, kao organ koji uistinu podržava  Ustav u sveukupnosti značenja njegovih normi.

Odluka o dopustivosti i meritumu Ustavnog suda BiH, br. U-13/14, od 4. jula 2014., Izdvojeno mišljenje o neslaganju sudije M. Ćemana  

Dictum of the day, or fair nuff

[T]he use of imprecise legal concepts in making rules, breach of which entails the civil, administrative or even criminal liability of the person who contravenes them, does not mean that it is impossible to impose the remedial measures provided for by law, provided that the individual concerned is in a position, on the basis of the wording of the relevant provision and, if need be, with the help of the interpretation of it given by the courts, to know which acts or omissions will make him liable.

Case T-167/08, Microsoft v. European Comission, 22.06.2012, para. 84.

Dictum of the day, or on the arithmetic of constitutions

[C]onflict between convention and law which prevents the courts from enforcing conventions also prevents conventions from crystallizing into laws, unless it be by statutory adoption. It is because the sanctions of convention rest with institutions of government other than courts, such as the Governor General or the Lieutenant Governor, or the Houses of Parliament, or with public opinion and ultimately, with the electorate, that it is generally said that they are political [...] It should be borne in mind however that, while they are not laws, some conventions may be more important than some laws. Their importance depends on that of the value or principle which they are meant to safeguard. Also they form an integral part of the constitution and of the constitutional system. They come within the meaning of the word "Constitution" in the preamble of the British North America Act, 1867 [...] That is why it is perfectly appropriate to say that to violate a convention is to do something which is unconstitutional although it entails no direct legal consequence. But the words "constitu­tional" and "unconstitutional" may also be used in a strict legal sense, for instance with respect to a statute which is found ultra vires or unconstitu­tional. The foregoing may perhaps be summarized in an equation: constitutional conventions plus constitutional law equal the total constitution of the country.

Reference re Amendment of Constitution of Canada/Partition Reference, [1981] S.C.J. No. 58, [1981] 1 S.C.R. 753 (S.C.C.), p. 883-884.

Dictum of the day, or on judicial regret

A Judge cannot but lament, when such cases as the present are brought into judgment. It is impossible that the reasons on which they go can be appreciated, but where institutions similar to our own, exist and are thoroughly understood. The struggle, too, in the Judge's own breast between the feelings of the man, and the duty of the magistrate is a severe one, presenting strong temptation to put aside such questions, if it be possible. It is useless however, to complain of things inherent in our political state. And it is criminal in a Court to avoid any responsibility which the laws impose. With whatever reluctance therefore it is done, the Court is compelled to express an opinion upon the extent of the dominion of the master over the slave in North-Carolina [...] The end is the profit of the master, his security and the public safety; the subject, one doomed in his own person, and his posterity, to live without knowledge, and without the capacity to make any thing his own, and to toil that another may reap the fruits. What moral considerations shall be addressed to such a being, to convince him what, it is impossible but that the most stupid must feel and know can never be true--that he is thus to labour upon a principle of natural duty, or for the sake of his own personal happiness, such services can only be expected from one who has no will of his own; who surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body. There is nothing else which can operate to produce the effect. The power of the master must be absolute, to render the submission of the slave perfect. I most freely confess my sense of the harshness of this proposition, I feel it as deeply as any man can. And as a principle of moral right, every person in his retirement must repudiate it. But in the actual condition of things, it must be so. There is no remedy. This discipline belongs to the state of slavery. They cannot be disunited, without abrogating at once the rights of the master, and absolving the slave from his subjection. It constitutes the curse of slavery to both the bond and free portions of our population. But it is inherent in the relation of master and slave.

North Carolina v. Mann 13 N.C. 263 (N.C. 1830), Opinion of Judge Ruffin

Dictum of the day, or on the mysteries of driving

Any mom or dad driving kids to school can expect to stop while parents in cars in front of them are unloading their kids. A shopper driving to a store near Lake Merritt in Oakland may have to stop while a gaggle of geese crosses the street. A couple going for a Sunday drive in West Marin County may have to stop for a cattle crossing. And, of course, all of us are expected to stop for red lights, stop signs, crossing trains, and funeral processions. In short, all drivers may, and sometimes must, stop. But they do so while “driving.” Just like defendant.

The People v. Carl Nelson, Court of Appeal of the State of California, A131301, 14.11.2011, Concurring opinion of Richman, J., p. 1-2

Dictum of the day, or on exegesis

Mr. President, Members of the Court, we saw yesterday some impressive examples of textual exegesis from Messrs. Wordsworth and Pellet, I thought for a while we were in a Faculty of Scriptural Studies. But it was exegesis gone wild, producing results that cannot possibly have been intended.

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), International Court of Justice, James Crawford, Oral Argument for Georgia, 14 September 2010, para. 3.