Friday, September 12, 2008


Niether Jake Tapper Nor Paul Krugman Can Read a Statute

Both Jake Tapper and Paul Krugman, and I'm sure many others, are calling John McCain a liar for his campaign ad that Barack Obama supported compulsory and comprehensive sex education for kids in kindergarten (in Illinois SB0099).

OK, let's look at Tapper's support for his name calling. Krugman supplies none, as usual, just more name calling. His one talent is apparently in the dismal science and he's not a shining star there.

Tapper says that Barack Obama did not write Illinois SB0099 and that it did not become law, but that Obama voted for it. Sorry, Jake, that's supporting it. So that part was true. Obama supported the legislation.

Now we can look at the legislation and see if it contains what John McCain's ad said it contains.

Tapper does a strawman argument here:

McCain’s ad makes it sound as if Obama was mandating that kindergartners receive the same information as a sexually active high school senior.

Frankly, Jake, we don't care what you think it sounds like, we want to know if what it actually does say is false is not. This would seem self evident in an article sub-titled "From the Fact Check Desk," but I guess it's possible the word 'facts' means something else to Jake Tapper.

Finally he quotes the crucial part of the proposed statute:

The word “comprehensive” appears just once in the bill as applied to kindergartners, it the section saying that "Each class or course in comprehensive sex education offered in any of grades K through 12 shall include instruction on the prevention of sexually transmitted infections, including the prevention, transmission and spread of HIV" (Emphasis added)

Tapper also quotes this from elsewhere in the statute: All course material and instruction shall be age and developmentally appropriate.

He then says this.

So what does “comprehensive sex education” mean in terms of kindergartners?
“It means teaching kids about families,” McDowell says.
Is McCain right when he says Obama wanted kids to learn about sex before they learned how to read?
“If by 'sex' he meant that there are boys and girls and mothers and fathers, yes," McDowell says.
But that's clearly not what McCain is suggesting.
"No reasonable person would believe we’re talking about teaching kindergartners about sexual intercourse," McDowell says...

Sorry, Mr. McDowell and Mr. Tapper, statutes don't work that way. Both of the quoted sections are mandatory because they contain the magic word "shall." It is a universal rule of statutory construction that you interpret the various mandatory sections in harmony. You don't ignore one mandatory section because of another mandatory section.

In the first quoted section the K class' sex education "shall include instruction on the prevention of sexually transmitted infections" like AIDS. You can't get out of that by saying it's not age appropriate to teach 5 year olds about how to avoid AIDS, even if it is, because the statute requires, for K classes, the sex education to contain just such instruction. You have to make the instruction age appropriate (I guess calling it Mr. Condom or something), but you don't get to skip it. Any lawyer would realize this after reading the proposed statute. Neither Krugman nor Tapper are lawyers, but Senator Obama is.

What McCain's ad contained regarding SB0099 is absolutely true.

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That word "shall" is a magic word. Back in my military days when writing statements of work for contractors to follow for services rendered, I was corrected by a procurement guy who said to replace "must" with "shall" when describing what the contractor would be expected to do. His explanation was that a SoW is a legal document of sorts and that "shall" has a meaning that "must" doesn't. I never got the distinction, but I went along.

So, what is so magic about the word? Is it just legal custom?
It is indeed the same thing that makes the Jews special, 'history' is the reason the word 'shall' is magic in law. The word 'may' allows the appropriate government branch to do it if it wants, the word 'shall' requires action. 'Must' would have worked, but 'shall' got there first.
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