Suzanne Lucas (Evil HR Lady), in her column at Inc., uses the Oxford comma trucking-hours case as a jumping-off point for a wider discussion of how the current workplace regulatory regime needs overhaul, starting (but not ending) with the Fair Labor Standards Act (FLSA) of 1938, a long-obsolete, coercively paternalistic, hard-to-understand mess:
Do I have a solution for all employment law? No. But where would I start? Well, with the assumption that employees over the age of 18 are adults and should be able to make their own contracts with employers. The key of my proposal would be that all job offers must be in writing (electronic or on paper) and that those terms could not be changed without advance notice. Let each person decide if a job offer makes him or her better or worse off.
She quotes my recent essay in the Cato Handbook for Policymakers (earlier on which).
9 Comments
Complex sentences with boolean operators, commas and implied delimiters can be read in so many ways. I do wonder why legal prose seems to favor flowery style over austere function.
Consider:
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.”
contrast with…
Congress shall make no laws that:
1) favor any religion or establish a state religion
2) prohibit the free exercise of religion
3) abridge the freedom of speech
4) abridge the freedom of the press
5) abridge the right of the people to peaceably assemble
6) abridge the right of the people to petition government for redress of grievance.
regarding 5 and 6, I have separated these elements, but it is not clear from the original text whether the conjunction ‘and’ within the phrase “…assemble and to petition…” is a boolean operator indicating that assembly is only protected if for the purpose of petition. An alternate reading could suggest that they are independent as I separated above in elements 5 and 6.
n.b. I make no claim that my interpretation is what the Founders intended. Therein lies the problem of interpreting prose written according to the Elements of Style as was custom 240 years ago.
Your 1) is just wrong.
There is solid evidence that the original intent of the establishment clause was only meant to prohibit the establishment of a federal government sanctioned national church.
At the time of the ratification of the constitution and the bill of rights, several of the original states had established state churches.
I did not intend to be ‘right’ with respect to interpreting this particular amendment. Others have spent lifetimes attempting to discern the underlying meaning of that one sentence, but rather used it as an example of different forms of prose.
State churches are solid but irrelevant, since the entire Bill of Rights applied only to the federal government until incorporation under the Fourteenth Amendment. Some better evidence would be how President Washington led the entire Congress to a thanksgiving service at the local Anglican church just after his inauguration.
Even, State Churches aren’t irrelevant. It’s evidence that they didn’t care about neutrality between religions, they just cared about preventing the establishment of a national church.
If the first amendment is solely applied to the federal government today, we all are in trouble. It would be difficult for me to parse the amendment so that religion only applied to the federal government, and the other parts of the amendment did not.
I would agree that the entire first amendment was not directed at the States when passed. That changed with the 14th amendment. But it was taken as a whole into the realm of application to the States, not piecemeal.
“If the first amendment is solely applied to the federal government today, we all are in trouble. ”
Agreed,
However, Gasman, by changing the intent as well as the form weakens the point that the change in form would make the original intent clearer.
Matt, you’re the one who isn’t reading gasman’s post correctly. As you point out, there were several states, most notably in New England that still had state religions. The First Amendment, and gasman’s restatement of it both make it clear that it’s Congress and not the states that are constrained by it.
PaulB,
You completely missed what I was objecting to.
The issue is not who is constrained. The issue is that the ” favor any religion or ” is something gasman added out of whole cloth and is not part of the original intent of the first amendment..