The law, indeed the constitution itself, can become just so much putty in the hands of judges.  So why do we allow judges to interpret the law?  Two answers come to mind, one practical and the other constitutional.

The legislature, no matter how skilled in forging words together, cannot anticipate every circumstance.  The very act of judging involves deciding what the law is and how the law applies to differing situations.  While the people through the initiative process, rather than the legislature, initially passed the Hard Time for Armed Crime Act, it offers some good illustrations.  The Hard Time for Armed Crime Act imposed mandatory sentence enhancements, effectively amounting to more prison time, if felonies were committed while in possession of a deadly weapon and even greater sentences if committed while in possession of a firearm.  As initially passed, the act did not define either “firearm” or “possession.”   The legislature has subsequently supplemented the act with definitions by largely codifying definitions developed by this court.

Soon after the Hard Time for Armed Crime Act was passed, a defendant claimed that his gun was unloaded, couldn’t fire and therefore was not a firearm under the act. This court, interpreting the words in context with the rest of the act in order to give effect to the peoples intent, concluded the people intended to view firearms from the perspective of the victim.  If a weapon was used as a firearm and the victim surrendered her property under the reasonable belief that it was a firearm, then the crime was committed with a firearm and it really didn’t matter whether it was loaded or not.  Having been raised in a household where guns were always considered loaded this holding makes great sense to me.  Soon other cases followed and the court applied similar reasoning to hold a gun that could not fire because it did not have a firing pin was a firearm under the act, but that a man was not armed merely because there was a gun in a house he was robbing.

As mentioned, the Hard Time for Armed Crime Act did not define possession. Criminal defendants argued that to “possess” a weapon it had to be in their hands or at least on their person.  But what if the knife was merely sitting on the dashboard of the car when the defendant said to his victim that if she resisted he would cut her?  This court interpreted “possess” under the act to mean “readily available for either offensive or defensive purposes.”  But under this definition, if a felony was committed in a kitchen where there was a drawer full of knives, those knives would have been available for either offensive or defensive purposes and the defendant subject to greater prison time.   This court later added to the “readily available” language that there had to be a “nexus between the defendant and the weapon and the weapon and the crime.”

Did the court legislate from the bench?  You bet.  The court took a statute which simply said “armed” and “firearm” and decided whether loaded or unloaded, whether operable or inoperable  etc.  It is what judges have been doing since before the Mayflower sailed.

There is also a constitutional reason for courts to interpret the law.  The brilliance of our constitution is in its checks and balances.  There are 26 overt checks within the U.S. Constitution; for example, the president can veto acts of congress and congress, with a super majority, can over ride the veto.  There are also structural checks such as the separation of powers among the three co-equal branches of government.  The founders were wise in not allowing each branch to interpret its own powers.  President Jimmy Carter would likely have interpreted his war powers differently than President George W. Bush would have interpreted his war powers.  The founders were wise to leave the interpretation of the law to those most learned in the law.