I'd make three points...Prefatory, the case of so-called "hate crime" is instructive. Motive is not generally an element of an indictable crime. It is seldom -if ever- a proper part of the prosecution's or the defense's brief. It does have a cogent and obvious place in the penalty phase of a trial, after a conviction -- either as mitigation or enhancement of punishment.(True, both prosecutors and defense consul often use such when making their case to a jury... that's not important: The judge's discretion limits their excesses! Well, that's the expectation...)Codifying motive as a separable offence smacks of "thought-crime"!1. The trope of "disparate impact" is defective, in logic and in law. Statistical reasoning -as practiced- is too weak to support a charge on its own, and as such contravenes the ancient right of a defendant to know what precisely the charges are, against him!(To see how pernicious the rule of "disparate impact" can be, see Massachusetts v. EPA. It countenances the importation of the Precautionary Principle into American law!) 2. The conflation of sex and gender is uncalled for. "Sex" means physical, biological determinants, not moods or (mis)conceptions, in Title VII... Nor does it subsume "sex acts" or proclivities.3. The precidential status of dicta, properly called, needn't (I'd say shouldn't...) be elevated by judges to suit their own (or the supposed public's) understanding of changing mores: Writing law is the job of Congress.Title VII can (and perhaps should) be amended... But not by judges, who then make it the job of Congress to correct misapplication of their laws!So: Bostock was wrongly decided.
Whether the framers envisioned this particular scenario is quite irrelevant. You'd get the absurd situation that everything you can argue wasn't thought at the time of isn't covered by a piece of legislation, while you should simply interpret what the law says.
I get what you mean... But it ain't the framers (did you mean The Framers?) intent that's the problem: We're not talking about amending the constitution, per se! (see below)
One of the reasons to avoid judge-made law is simple: Consider, should (and, of course, we're always talking about a "should" in such cases) Kidnapping -a Federal Offense- admit the matter of "soul stealing" via photography into its ambit?
laws aren't written in ignorance of how courts interpret laws; quite the opposite.
A therapist asks his patient how his visit to his mother went.The patient says, "It did not go well at all. I made a terrible Freudian slip...""Really!" the therapist says. "What did you say?""What I meant to say was 'Please pass the salt.' But what I said was 'You bitch! You ruined my life!'"
But you exaggerate the meaning of "interpretation" beyond any reasonable bounds, to admit "soul stealing" into the range of reference for "kidnapping"...
Hij die opzettelijk iemand wederrechtelijk van de vrijheid berooft of beroofd houdt, wordt gestraft met gevangenisstraf van ten hoogste acht jaren of geldboete van de vijfde categorie.
He who intentionally robs or deprives a person of his liberty unlawfully will be punished with imprisonment of up to eight years or a fifth-category fine.
Would your interpretation of Freudian slip let this slide?
Broadly speaking there are three possibilities with regard to souls:
By (presumably?) opting for the first interpretation there's no value to be found in your thought experiment. It can, would, and should simply be dismissed. It would never make it to court. The only way in which your thought experiment can claim to hold any relevance is if we assume there to be a somewhat reasonable possibility that soul stealing might be kidnapping.
Perhaps it's easier to see the logic of the argument if we rephrase it slightly. Imagine a kidnapping law from 1600
There's another option that I left unstated, but an act like lobotomy could also reasonably be called stealing of the soul. To take it (somewhat) out of the domain of grievous bodily harm, we might imagine that the brain can be restored as new. A person without a well-functioning mind might be said to have their liberty taken from them. I'm not saying that's a valid legal interpretation, but you can't just summarily conclude it's not either.
But psycholinguistically (i.e., scientifically) speaking Freudian slips are a flawed explanation at best. Speech errors show something about language processing, not about underlying hidden thoughts. In that sense Freudian slips are quite similar to souls: neither exist in a relevant sense.
In the American system such a determination can't be made (except by Congress, in the process of enacting law...) before a case, a controversy, is brought to the court. Our judges have no power to propound such questions, let alone answer them before... Not in their official capacity.(Such things do come up in their opinions as explanatory... But when it does it is dicta -- not precedent for future cases and of no import re the lower courts.)
That doesn't get us anywhere: The mode of transporting the victim is not a necessary element of the crime.We're talking about interpreting the crucial element of the crime!
Employers may not "fail or refuse to hire or...discharge any individual, or otherwise...discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's...sex.
BTW: Did you read Kavanaugh's dissent?
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