Here's a Pairing You Rarely See:

In fact, my computer searches could find no previous instances of this combination before (emphasis added):

[N]o constitutional provision prohibits the dissemination of general information on subjects of public interest to children or to adults (unless it is the Establishment or the Treason Clause).
The quote is from the panel's order refusing rehearing nostra sponte (not sua sponte) in Fields v. Palmdale School District. I discussed the original panel decision in Fields here; it's the case in which the Ninth Circuit held that distributing a survey with sex-related questions to public elementary school students didn't violate the Constitution.

Syd (mail):
Maybe when the government were fighting the Mormons in the 19th Century?
5.18.2006 7:36pm
Speaking of Fields, watching the right wing demagogue that decision has confirmed a lot of my beliefs about the disingenuousness of "judicial restraint" proponents.
5.18.2006 7:51pm
James Grimmelmann (mail) (www):
Mea sponte also sees occasional use at the District Court level.
5.18.2006 7:59pm
Isn't a Court always a third-person singular entity, whether it happens to be composed of one or several individuals? Isn't there a difference between a person or group of people speaking on behalf of themselves individually, and a Court? A court makes a claim of speaking on behalf of speaking on behalf of society as a whole. Does the number of judges matter to the validity of this claim?
5.18.2006 8:07pm
OK, I don't get it. Could someone explain to a non-lawyer why the Treason Clause is in there?
5.18.2006 9:38pm
Christopher M. (mail):
From a Latin perspective, the panel's usage is right but Prof. Volokh's is wrong. It makes sense for the court, referring to a decision made on its own initiative, to use "nostra" (="our"). It doesn't make sense for the good professor EV to repeat the usage when he's referring to the court, which in the third person should take "sua" (="its"). It's like:
Court: We're doing this on our own.
Volokh: Look, the court did that on our own.
Maybe this is why Sasha, and not Eugene, gets to be Professor Doctor Volokh.
5.18.2006 9:40pm
Sasha (mail):
Christopher M. -- Nope, Doctor Sasha says Eugene's italics should be read as the equivalent of quotation marks, which makes it correct even under an anal reading.

Look, the court did that on "our own."
5.18.2006 10:08pm
Christopher M. (mail):
Nonstandard usage of italics, and to my knowledge unattested in the corpus volokhianum, but an elegant solution! I withdraw the charge. Maybe this is why Sasha, and not I, gets to be Professor Doctor Volokh.
5.18.2006 10:25pm
Eugene Volokh (www):
I appreciate Christopher M.'s gracious follow-up comment, but let's not miss the deeper point: I post something with, er, questionable Latin, someone calls me on it, and then along comes Sasha to explain why it was all perfectly correct from the outset. Maybe this is why Sasha and I get to be The Fearsome Brothers Volokh.
5.18.2006 10:30pm
Ex-Fed (mail) (www):
Maybe this is why Sasha, and not Eugene, gets to be Professor Doctor Volokh

That's perilously close to an argument ad Volokhem.
5.18.2006 11:10pm
A Student:
In re "Could someone explain to a non-lawyer why the Treason Clause is in there?"

I am not a lawyer either, but the Treason Clause forbids giving "aid and comfort" to the enemies of the United States, which I expect could include assisting their propoganda efforts.
5.18.2006 11:19pm
Marcus1 (mail) (www):
It's an interesting comparison though. These two clauses do seem to stand out from the rest of the Constitution, almost in contrast. These are really the two instances, it seems, where speech is limited as such.

IMO, it's something that should be remembered when people still say "But if the government can teach things that are secular then it has to be able to promote religion too."
5.18.2006 11:39pm
Evelyn Blaine:
It strikes me as a very odd pairing because the two clauses, as applied to speech, seem to have diametrically opposed structures. The Establishment Clause limits state action but (by virtue of the Free Exercise Clause) is powerless against private citizens; the Treason Clause limits the speech of private citizens but does not limit the kind of speech that the government may make. (The Speech and Debate Clause explicitly immunizes Congress and its members against treason prosecutions for things said in the course of their official duties; structural and separation-of-powers arguments seem to make extending similar immunity to the other branches almost unavoidable.)
5.19.2006 4:53am
Joel B. (mail):
It strikes me as a very odd pairing as well. Although, I have a deep-seated fear, that the pairing wasn't so odd to the panel making it...that is, to the panel trying to teach children aspects of religion is as treason.
5.19.2006 9:27am
". . . (unless it is the Establishment or the Treason Clause)."

Isn't anyone bothered by these words? The Court obviously meant to refer to the Establishment Clause, but instead referred to the Establishment. Why is this Court, allegedly comprised of legal heavyweights (okay, being trying to be generous), incapable of saying what it means? Keep in mind that this would have been reviewed by not just the panel, but a small army of clerks, as well. Messy language indicates messy thought. I'll have to read the whole damned thing now to see if this was an isolated error.
5.19.2006 9:34am
Scott W. Somerville (mail) (www):
I would note that the Treason Clause applies to citizens but not, more or less by definition, to the government; and the Establishment Clause applies to the government, but not (by definition) to the citizens.

Having made that distinction, however, I find this an eerie coincidence. As an Evangelical, it troubles me to see these go together.
5.19.2006 12:05pm
Eugene Volokh (www):
Mahlon: Would you think it was an error if someone writes "unless it is the first or the second time"? "It is the biggest and the costliest deal"? Sounds to me like "the Establishment" and "the Treason" both link up to "Clause." No error there, even if some might find it stylistically not to their liking.
5.19.2006 12:07pm
EV - I disagree. Both are used as proper nouns. You should not group two unrelated items together simply because they share a last name. Do think it appropriate to say "My favorite two presidents are Andrew and Lyndon Johnson." I think not.
5.19.2006 2:07pm
Eugene Volokh (www):
Actually, "Mr. and Mrs. John Smith" or "Mary and John Smith" is a pretty common locution. It may be less idiomatic when there's no family connection, as in "Andrew and Lyndon Johnson," but it isn't wrong in either instance. Again, one can find it ugly or clunky, but I don't see it an "error" or as "[m]essy language."

Also, I'm pretty sure that the names of Clauses of the Constitution aren't "proper nouns" (though I doubt that this affects the analysis). My American Heritage Dictionary defines "proper noun" as "A noun belonging to the class of words used as names for unique individuals, events, or places."
5.19.2006 3:21pm
Sorry, I feel particularly argumentative today. Besides, I'm on a general tirade against poor writing. Perhaps I did not pick the best point to argue, but now that I've started, I'll be damned if I'm going to surrender.

Perhaps my view of "error" is too expansive. In my opinion, if a sentence contains ambiguity, especially a sentence in something as important as a Court's decision, it contains an error. Reading the parenthetical literally the "it" referenced is either the "Establishment" or the "Treason Clause." Granted, there is little actual likelihood of confusion. In my mind, however, "ugly" and "clunky" equals "messy."

As for proper nouns, why did you captilatize the word "Constitution?" It's becuase it is the name of a specific thing. Another, slightly different, definition for "proper noun" is "noun that denotes a particular thing; usually capitalized." WordNet ® 2.0, © 2003 Princeton University. The Court did not refer to an establishment clause, it referred to the Establishment Clause. There is only one, like there is only one Eugene Volokh. It's a proper noun.

Thank you for allowing me my rant. I often make mountains out of mole hills. It's a fault of mine.
5.19.2006 4:14pm
Damn judicial activists.
5.19.2006 5:19pm
That would be "damned" judicial activists.
5.19.2006 9:15pm
The Real Bill (mail):

I believe that you are incorrect regarding CJColucci's comment. "Damn" is a verb. He/She wants judicial activists to be damned.
5.19.2006 11:44pm
The Real Bill (mail):

Maybe it's not a verb. Is a command a verb? I forget.
5.19.2006 11:46pm
Actually, after I posted I considered that CJColucci did mean to damn judicial activists. I read it as an exclamation. Yes, the command "damn" is a verb. The subject of the sentence is assumed. Now whether he intends the sentence as a command, as in "You damn . . " I cannot devine. He could also be asking God to damn them. Or he could simply be asking anyone to damn them. Only he or she can answer that. I read damn to be an adjective, in which case its form was incorrect.

Damn, I need to get a life!
5.20.2006 1:36am