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Famous Misunderstood Legal Quotations and Statements:
Over at Prawfs, Howard Wasserman proposes an interesting law-geek game:
Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement.
  To start things off, Howard offers up Justice Stewart's famous "I know it when I see it" line about hard-core pornography. That line is generally used to celebrate common sense and powers of intuition, but it was intended as a critical comment on the court's unintelligible legal standard for obscenity.

   For my own contribution, I offer the claim that the original Constitution is tainted because "slaves were only counted as 3/5 of a person." To be sure, the original Constitution was tainted by its failure to resolve the question of slavery. But those who point out the 3/5 compromise generally assume that that treating slaves as less than a person reflected the pro-slavery view. Not so. The 3/5 compromise concerned the counting of persons for purposes of state representation in the House of Representatives. As a result, it determined the political power of pro-slavery states relative to that of free states in Congress rather than the importance of the slaves as people:
Delegates opposed to slavery generally wished to count only the free inhabitants of each state. Delegates supportive of slavery, on the other hand, generally wanted to count slaves at their actual numbers. Since slaves could not vote, slaveholders would thus have the benefit of increased representation in the House and the Electoral College . . . . The final compromise of counting "all other persons" as only three-fifths of their actual numbers reduced the power of the slave states relative to the original southern proposals, but is still generally credited with giving the pro-slavery forces disproportionate political power in the U.S. government from the establishment of the Constitution until the Civil War.
  Any other suggestions? If so, please leave them in the comment section.
progressoverpeace (mail):
Maybe I'm being too pedestrian, but I always thought that "innocent until proven guilty" was the most abused legalism in US history, with people using it to imply that all are bound by this consideration.
2.3.2009 12:01am
TomHynes (mail):
First, kill all the lawyers
2.3.2009 12:02am
Rod Blaine (mail):
"The exception that proves the rule"

"Natural justice" when used by a layperson means "an outcome that I agree with" and has nothing to do with due process or procedural fairness.

Also, it took me until my teens to realise that "You can't be too careful" didn't mean "It isn't safe to be too careful" but, rather, "However careful you may be, it is never too careful."
2.3.2009 12:15am
BRM:
"In considering this question, then, we must never forget it is a constitution we are expounding." M'Culloch v. Maryland
2.3.2009 12:19am
Barry P. (mail):
My biggest annoyance is when people (e.g., Palin) complain about their "First Amendment Rights" being abrogated by any private speech restricting act, real or imagined. What part of "Congress shall make no law..." are these people missing?
2.3.2009 12:23am
Andy Bolen (mail):
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
2.3.2009 12:25am
OrinKerr:
Barry P,

Of course, the First Amendment applies beyond Acts of Congress, so a purely textual response isn't much more accurate.
2.3.2009 12:25am
BRM:
The Guaranty Clause would be another example, except that nobody really knows what it means. Even the Supreme Court, hardly shrinking violets in constitutional interpretation, basically said they wouldn't interpret it.
2.3.2009 12:26am
progressoverpeace (mail):
And one that I mistook, myself, on another thread:

Heckler's Veto

(which really should be "Hecklers' Veto", to cut down on the confusion - though this would, obviously, not serve to change anything in conversational use)
2.3.2009 12:29am
drawstrawz (mail):
"Thank you your honor"
2.3.2009 12:38am
TerrencePhilip:
"You can possess a gun in your car, because the car is an extension of the home."

-patently ridiculous- you can possess a gun in your car if your state does not make it illegal via criminal statute, not because the car is "an extension of the home," and indeed you have far less protection from the prying eyes of government in your car than in your home. Even if Heller is one day applied to protect in some fashion possession in a vehicle, that would only be because of the Second Amendment, not some relationship between a car and a "home."
2.3.2009 12:39am
Michael F. Martin (mail) (www):
Another from Shakespeare: "More honor'd in the breach than the observance,"
2.3.2009 12:42am
Malvolio:
Justice Taney line about black people having "no rights which the white man was bound to respect."

The full quote is
It is difficult at this day to realize the state of public opinion in regard to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted; but the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect.
He was merely describing a situation -- and not just in the US -- one he did not approve of, but was bound by.
2.3.2009 12:44am
CrazyTrain (mail):
Orin -- I don't think the 3/5 clause is misunderstood at all. The objection to it is not that it was inserted by pro-slavery delegates -- or, more accurately, as a compromise between Northern delegates and Southern delegates -- but that the Constitution inserted a provision treating black people as 3/5 of a person (yes I know it wouldn't technically count the tiny anount of freemen the same, but the symbolism is what matters). Period. The motiviation is irrelevant, and frankly the fact that it was a "compromise" only makes it the more offensive -- the compromise was to treat human beings as 3/5 of a person for determining the most important federal counting of persons. The gross symbolism was evident even at the time. (Look it up.) Now, of course, judging people by our morals today is unfair, but I don't think most people who find that provision offensive could give a shite about whether it was inserted as part of a pro-Southern state power strategy or not.
2.3.2009 12:51am
Libertarian1 (mail):
Not purely law related but common expressions where the original meaning is vastly different from what the speaker intends.

A) Hobson's Choice: it is not the option of two (or more) equally poor choices but as per Hobson- no choice. You could only rent the next horse in the barn.

B) Ugly American: In the book he is the hero. Physically unattractive but a good, kind, generous American.

C) You can't shout fire in a crowded theater: Of course you may if the theater is on fire, you can't falsely shout fire.
2.3.2009 12:54am
Randy R. (mail):
I heard some people who think that the right to life, liberty and the pursuit of happiness is in the constitution.

I argue that this qualifies because, although they correctly understand the point of the phrase, they mistakenly believe that it is law, which it is not.
2.3.2009 12:54am
Mike& (mail):
No. Orin is right because....... look at the irony...... If the slave-owning states had had their way, slaves would have counted for a FULL person. Can't you see what's bizarre about that?

The North did not want slaves to be counted at all. It wasn't because they hated blacks. It was to prevent slave states from having more power.

So imagine someone saying, "Well, the slave owners loved blacks so much they wanted them to be FULL PERSONS in the Constitution."

That is not the point people make. Which is why Orin's example comports with the game.
2.3.2009 12:55am
Jonathan F.:
CrazyTrain,

Orin's point is this: pro-slavery Southerners would have preferred slaves be counted as a whole person, or as two people; anti-slavery Northerners would have preferred slaves not counted at all. That's the irony, and why this provision is misunderstood -- counting slaves as 3/5ths instead of a whole person actually benefitted the North in Congress, and the South not at all.
2.3.2009 12:56am
Randy R. (mail):
Then there is the misconception that a contract isn't valid unless it;s in writing.
2.3.2009 12:57am
Hadur:
Most non-lawyers probably still think that the Right to Privacy "emanates from penumbras", whereas today this attempt at textualism has been entirely abandoned, and rights like privacy are acknowledged as completely unwritten in the constitution, springing instead from our traditions and conceptions of liberty.
2.3.2009 1:03am
Grobstein (mail) (www):
From Holmes's Lochner dissent: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." It's easy to read this as a round dismissal of what Spencer stood for, along with the majority's position. But Social Statics was actually among Holmes's favorite books; this famous statement would have been decidedly bittersweet for him.
2.3.2009 1:04am
Jonathan F.:
A) Hobson's Choice: it is not the option of two (or more) equally poor choices but as per Hobson- no choice. You could only rent the next horse in the barn.
Yes, but it's not "no choice" in the sense that you are compelled. Rather, you do have a choice: to accept what's offered, or nothing at all. For instance, as Henry Ford said about the Model T, "Any customer can have a car painted any colour that he wants so long as it is black."
2.3.2009 1:04am
OrinKerr:
CrazyTrain,

What Jonathan F and Mike said.
2.3.2009 1:09am
TNeloms:
Similar to what others said about free speech, but "This is a free country" is a pretty good example.
2.3.2009 1:18am
Chico's Bail Bonds (mail):
Orin, Jonathan F, and Mike:

What CrazyTrain said.
2.3.2009 1:21am
Splunge:
Since owners exercised every bit of the 3/5 of a franchise theoretically extended to slaves, you might as well say that the 3/5 clause wrote into the Constitution the right of owners to own not only the labor of their slaves, but also their votes. The wish of the North was to prevent owners from owning any votes other than their own.
2.3.2009 1:28am
Tritium (mail):
People have the freedom to say and do whatever they want to, as long as they're prepared for the consequences that follow. The federal government has no authority to declare what is or is not a crime upon the people outside of engaging in business outside of the state in which they are incorporated.

"Freedom of Speech" means that speaking your opinion shall not be criminalized. Making false statements without any proof or reason to believe the statement being made is true can be punishable by civil suit if the object of the statement is harmed financially.

Is money property? If so, can the government take your money without just compensation?
2.3.2009 1:31am
gattsuru (mail) (www):
Libertarian1
A) Hobson's Choice: it is not the option of two (or more) equally poor choices but as per Hobson- no choice. You could only rent the next horse in the barn.


To be precise, it's usually a situation in which there is a choice, but all but of the options is not usually considered remotely valid. The 'original' (at least to the dictionary editors) use was to describe a livery in which purchasers could have the horse nearest the door, or not get the horse nearest the door and thus not getting a horse at all from the livery. Likewise, the scenario at the beginning (and end) of the Discworld book "Going Postal" is typically considered a Hobson's Choice as the choice is between following the Patrician's offer or death. Both choices are possible, but one of them is so much less viable to the chooser as to be unselectable.

There's a big difference between a Milton's Fork and a Hobson's choice, but there are just as many between a Hobson's Choice and a completely choiceless situation.

CrazyTrain
I don't think the 3/5 clause is misunderstood at all. The objection to it is not that it was inserted by pro-slavery delegates -- or, more accurately, as a compromise between Northern delegates and Southern delegates -- but that the Constitution inserted a provision treating black people as 3/5 of a person (yes I know it wouldn't technically count the tiny anount of freemen the same, but the symbolism is what matters). Period.

Most people using the phrase do so in order to represent the Constitution as intentionally finding black people to be 'worth' less than (selected) whites. That was not the goal nor emphasis of the selection, as it did not and could not change the representation of African-American blacks (who had no representation either way), but to reduce the influence of African-American black-owning whites. If the distinction between the two doesn't seem significant... I'd ask you to reevaluate your priorities.

Opening Post:

"Shout Fire In a Crowded Theatre". Obviously, it also allows for truthfully or unintentionally falsely shouting fire in a crowded theatre. In addition, more recent and over-riding court cases have opened up the limits vastly beyond that, yet the phrase is still used.

Nearly any quotes attributed to Burke, even the ones he actually said.
2.3.2009 1:39am
ks:
When King Solomon resolved a dispute by threatening to split the baby, he did not mean they should cut the baby in half. Nevertheless, lawyers frequently use "split the baby" to mean "split the difference."
2.3.2009 1:45am
OrinKerr:
ks,

Yup, that's a good one.
2.3.2009 1:53am
Nathan_M (mail):

CrazyTrain,

What Jonathan F and Mike said.

This seems slightly unproductive, but what CrazyTrain said.

I see the logical argument, and it's unfair to judge an 18th century constitution by 21st century standards, but that doesn't change the horrific symbolism.

The position that the south shouldn't have too much political power, but it's alright if they keep slavery isn't an "anti-slavery" position. It's more a "not thrilled about slavery, especially when opposition is in my interest, but not willing to sacrifice anything important to oppose it" position. It's like opposing the sexual abuse of children by politely asking your neighbour to close the blinds first. It might be less morally indefensible than all out pro-slavery but not by very much.

Having said that, I think Professor Kerr is right that most people who cite this don't fully understand the circumstances. But sometimes you don't need to. Judging by today's standards the explanation doesn't makes this any less evil.
2.3.2009 1:59am
Dave N (mail):
The first thing we do, let's kill all the lawyers.
Henry VI, Part 2, Act 4, Scene 2.

Tom Hynes used my example, which I used in a different thread today, for a different purpose. However, I found an interesting site today that claimed:

1) Many attorneys think that the line, from an evil character named Dick the Butcher, was written to illustrate that it was lawyers who kept society from descending into anarchy.

2) That this interpretation is wrong; that what Shakespeare really was doing was making a lawyer joke, along the lines of "When there is Utopia, there won't be any lawyers."

So interestingly, Tom Hynes is correct, but perhaps not for the reason he thought.
2.3.2009 2:06am
courtwatcher:
I was thinking about "split the baby" too. It's hard to say what the expression really should mean exactly - but whatever it means, it's sure different from what people think it means.
"A dispute resolution tactic to ascertain the party deserving to win a dispute, involving offering the parties a choice so destructive that a truly deserving party would reject it even if it meant giving up the entire disputed claim." (?)
2.3.2009 2:08am
OrinKerr:
Nathan M writes:
The position that the south shouldn't have too much political power, but it's alright if they keep slavery isn't an "anti-slavery" position. It's more a "not thrilled about slavery, especially when opposition is in my interest, but not willing to sacrifice anything important to oppose it" position. It's like opposing the sexual abuse of children by politely asking your neighbour to close the blinds first. It might be less morally indefensible than all out pro-slavery but not by very much.
I don't understand this. Sure, the northern position wasn't abolitionist. But no one is arguing to the contrary. No one is defending the compromise: As I wrote in the post, "the original Constitution was tainted by its failure to resolve the question of slavery. " Rather, the point is simply that in popular political discourse, the compromise is usually invoked in away that misunderstands its origins. Perhaps you believe that the symbolism is powerful even if technically inaccurate, and that you don't like people pointing out the technical inaccuracy for fear that they are implicitly questioning the symbolism. But no one here is doing that, as far as I can tell, and certainly not me.
2.3.2009 2:25am
Syd Henderson (mail):
courtwatcher: It means that opposing lawyers should not be trusted as babysitters.
2.3.2009 2:25am
Tony Tutins (mail):
I've never quite understood what is meant by the non-lawyerism "Possession is nine-tenths of the law." I think it must be something like "Finders keepers, losers weepers."
2.3.2009 2:36am
Jonathan F.:
Having said that, I think Professor Kerr is right that most people who cite this don't fully understand the circumstances. But sometimes you don't need to. Judging by today's standards the explanation doesn't makes this any less evil.
Right, the 3/5ths clause was inserted to reduce the power of slaveowners, not the power of slaves. So yeah, doesn't the correct explanation make this quite a bit less evil? I know there's a temptation to say that anything even incidental to slavery (or, e.g., the Holocaust) is limitlessly evil, but this isn't true. Agreed that the symbolism here is bad; better that, though, than if the clause actually hurt slaves.
2.3.2009 2:36am
LM (mail):
Mike&:

No. Orin is right because....... look at the irony...... If the slave-owning states had had their way, slaves would have counted for a FULL person. Can't you see what's bizarre about that?

The North did not want slaves to be counted at all. It wasn't because they hated blacks. It was to prevent slave states from having more power.

The people who misunderstand the clause are right for the wrong reason. They may not know what the 3/5 compromise means, but they're right that it's a (tacit) acknowledgment, enshrined in the Constitution, of slavery's legal status at our founding.
2.3.2009 3:00am
CrazyTrain (mail):
When King Solomon resolved a dispute by threatening to split the baby, he did not mean they should cut the baby in half. Nevertheless, lawyers frequently use "split the baby" to mean "split the difference."

No, no, no, no. The expression is actually used perfectly appropriately. The point is that when, for example, we complain that a judge will just "split the baby," we are complaining that the judge is not being just but looking for an easy way out that ends up screwing both sides. Thus, in the search for a solution that penalizes both sides, you are "splitting the baby", and avoiding the point that you have to make a decision -- you can't split the baby without destroying it and the whole purpose of the dispute.
2.3.2009 3:04am
Nathan_M (mail):
I don't mean to hint anyone here supports slavery to any degree.

The difference I see is that people cite Justice Stewart for the polar opposite of his intended meaning. People criticizing the "3/5ths compromise" might often misunderstand the nuance, but even if they did I suspect for the most part they would criticize the compromise anyway.

It's like the difference between saying "I only had time to peruse the case" and "Justice Stewart is amoral for supporting pornography." They're both misusing a word, but the first seems special for giving the word precisely its opposite meaning.

And I've wracked my brain without coming up with any other legal examples, but I have always liked that the Big Bang Theory was originally intended as a term of ridicule.
2.3.2009 3:04am
progressoverpeace (mail):

CrazyTrain:

No, no, no, no. The expression [split the baby] is actually used perfectly appropriately. The point is that when, for example, we complain that a judge will just "split the baby," we are complaining that the judge is not being just but looking for an easy way out that ends up screwing both sides. Thus, in the search for a solution that penalizes both sides, you are "splitting the baby", and avoiding the point that you have to make a decision -- you can't split the baby without destroying it and the whole purpose of the dispute.


The idea of splitting the baby was a resolution that could have never been carried out (and was never intended to be). It was an ancient "thought experiment", as it were. It was a test of depravity, in that only a truly depraved person could possibly accept cutting a live baby in two, whether lying about being its mother or not. Perhaps the thinking was that only a truly depraved woman could falsely claim to be the mother of someone else's baby, thereby insuring that the test would yield an outcome based on truth? But, even in the case where a depraved woman had a child and normal woman falsely claimed it to be hers (perhaps out of some empathy for the child, fear for its future, ...) the resolution would still appear to benefit the baby (assuming that it was not, indeed, cut in half) and separate the depraved from the normal. It seems that a "split the baby" proposal is for the baby's sake, above all, at least in its original form.
2.3.2009 3:24am
Rik (mail):
Actus reus and mens rea are always translated as "guilty action" and "guilty mind." But I've never seen a latin dictionary translate "reus" or "rea" as "guilty"-- I think they mean something more along the lines of "accused" or "answerable." But my latin never got much beyond elementary, so it could be that the common translation is right and I'm wrong.
2.3.2009 3:29am
Jonathan F.:
The difference I see is that people cite Justice Stewart for the polar opposite of his intended meaning. People criticizing the "3/5ths compromise" might often misunderstand the nuance, but even if they did I suspect for the most part they would criticize the compromise anyway.
I'm not so sure. Count me among those who would rather have a union with slavery than no union at all (a Hobson's choice?), considering that slavery would have persisted in the South in either case. Given that, I think the 3/5ths compromise was for the better. Likewise, if the debate between those who wanted to keep slavery and those who wanted to abolish it had resulted in a compromise provision reading, "No slave shall be beaten," I would be for it even though it tacitly acknowledged the institution.

And I think most people who misunderstand the 3/5ths clause do have it precisely backward: they incorrectly believe that counting slaves as 3/5ths of a person was somehow bad for the slaves, when it was actually bad for the slaveowners.
2.3.2009 3:30am
Lior:
ks: I'm rather confused by your description of the story Solomon's Judgement. The following is a quick translation from the Hebrew (Kings A, chapter 3):

The King said: get me a sword! and a sword was brought before him. The King then said: cut the living baby in two and give one half to one of the women, the other half to the other woman.


The "living baby" is in contradistinction to the other baby in dispute, the "dead baby". It is the whole point that the living baby will die after being cut in two -- that is what allows Solomon to break the symmetry between the two women and find out which is the mother of which baby.
2.3.2009 3:31am
Lior:
ks: Ah -- I guess you meant that Solomon did not ultimately intent to split the baby -- he just threatened to do so. In that case you're right: part of the moral of the story is that babies are indivisible.
2.3.2009 3:34am
whit:
"you can't prove a negative"

this is a very misunderstood statement.

aptly debunked here...
http://jeihagh.notlong.com/
2.3.2009 3:37am
zippypinhead:
So many quotes, so little time... let's see, just focusing on a few of the many aphorisms of Oliver Wendell Holmes, Jr., how about:

"Taxes are the price we pay for a civilized society."

"The life of the law has not been logic; it has been experience."

And an underutilized one with a lot of potential, that I predict will be popularized one of these days in discussing the political aspirations of some of Joe Kennedy's grandchildren (or perhaps when Jenna Bush Hager runs for public office):

"Three generations of imbeciles are enough."
(from Buck v. Bell, upholding forced sterilization of the "feeble-minded")
2.3.2009 4:12am
Frater Plotter:
"The exception that proves the rule," as casually applied outside of law, irks me. People use it to mean that believers in a generalization should ignore specific cases that disagree with their belief, if there are sufficiently few of them.

"All [group] people are stupid."
"You know that's not right. Pat is [group] and he's a genius."
"Well, Pat's the exception that proves the rule."
2.3.2009 4:18am
Daryl Herbert (www):
If the slave states had their way, slaves would each count as 10 people for purposes of apportionment.
2.3.2009 4:23am
MysteryCommenter:
The "wall of separation between church and state" thing is rarely applied correctly outside of legal circles. Whenever I am encountered with a nonlawyer speaking this phrase, invariably nonsensical readings of the Establishment Clause follow.

And, though not a quotation or statement, the whole "if you ask an undercover cop if he's a cop, he has to tell you" nonsense is always good for a laugh.
2.3.2009 4:49am
MysteryCommenter:
Also, some people seem to believe that "jury of his peers" means that juries should be comprised of people of the same cultural/ethnic/racial/economic/whatever background as the defendant. That's always mystified me.
2.3.2009 5:00am
David E. Young (mail) (www):
I think that "Law office history," while not exactly a legal term, is certainly misunderstood by some who use it. The phrase is a disparaging remark relating to ignoring historical context, picking and choosing only supporting historical material, ignoring non-supporting historical material, etc., etc., in legal arguments relating to historical matters.

Some of the professional academic historians who filed an amicus brief supporting Washington DC in the Heller case have used "law office history" to publicly lash out at those in the legal profession they disagree with who have been trying to discover and present the history of the Second Amendment so that it makes some sense (including the majority Justices after the decision). I think the legal professionals involved in the Heller case who supported individual rights have actually done an exceptionally good job of dealing with historical arguments.

Hypocritically, it is these very professional historians in their Heller brief supporting gun control who engaged in the most extensive instance of "law office history" ever to have been perpetrated. I am currently involved in fact checking the historical claims in the historians' brief at On Second Opinion Blog, and intend to bring up this very point in one of my upcoming posts after documenting a number of false assertions and misleading arguments presented by the historians. To the extent that the history of the Second Amendment does not appear in the Heller decision, it is the fault of these professional academic historians themselves because nowhere in their brief did they presented accurate and relevant U.S.Bill of Rights history to the Supreme Court.
2.3.2009 5:03am
Bruce_M (mail) (www):
I've always hated the phrase "guilt/innocence phase of a trial" - there is not a determination of guilt or innocence, but rather guilt or not proven guilt. Guilt not proven is far different from innocence.

I think there should be three verdicts in a criminal trial - guilty, not guilty (not proved beyond a reasonable doubt by the prosecution), and innocent. Innocent verdicts meaning more than the prosecution merely failed to meet its burden of proof, but rather, the defendant is entitled to complete exoneration (and the state should pay all legal fees, expenses, and offer some sort of restitution).

"Not guilty" doesn't mean you didn't do it, it just means the prosecutor didn't prove his/her case. That's why "guilt/innocence phase" of a trial is extremely misleading and should never be uttered.
2.3.2009 5:04am
Bored Lawyer:
The controversy on the 3/5 Clause actually points out a moral self-contradiction in the Southern position on slavery. The South wanted to treat other human beings as chattel for purposes of ownership and related rights. But when it came to apportioning political representation in Congress, they wanted to count them as full-fledged citizens -- although citizens to whom they denied the franchise because they were chattel.

Counting slaves as less than full citizens is not a statement about their inherent worth, but rather a statement about the inherent contradiction (indeed hypocrisy) of treaing someone as chattel for all purposes except where it is convenient not to. That blacks were denied the franchise in the South at the time (whether free or not) makes the hypocrisy all the more glaring.
2.3.2009 5:36am
Ursus Maritimus:
Has anyone estimated how much more politically powerful the Slave States would have been if they'd gotten the their 5/5 way?

Would they have had enough votes to put off the reckoning for ten years? twenty years? fifty years? (First Bull Run with maxims and mustard?)

Or would they have had enough votes to force all newly admitted states to become Slave States? To make all states Slave States?
2.3.2009 6:02am
Tom Perkins (mail):
The people who object to the 3/5ths clause because of its "horrifying symbolism" are evidently unable to understand what its symbolism actually is. It is a symbol of the recognition by the Founders that slavery was unjust and entirely at odds with their constitution and revolution, a recognition that the South must be opposed in it's desire to protect and preserve the "peculiar institution", and it is emblematic of the fact that the South would fail in it's efforts. It and the "importation" clause are together emblematic of the Founding generation's desire that slavery be ended by future generations--and of their recognition that doing it was beyond their abilities.

Yours, TDP, ml, msl, &pfpp
2.3.2009 6:35am
Tocqueville:
"You can't legislate morality."
2.3.2009 6:41am
Tom Perkins (mail):

It's like opposing the sexual abuse of children by politely asking your neighbour to close the blinds first.


Not even slightly true.

It's like opposing the sexual abuse of children by:

A) not letting them go their own way entirely and letting the neighbor do whatever they want--
--that's what a failure to compromise, such that at the time the South did not join the Union.

B) not at that time beating your neighbor to death with your bare hand to stop them--
--instead we put off the beating the South to death with our bare hands until 1860, when the situation had culminated.

Yours, TDP, ml, msl, &pfpp
2.3.2009 6:49am
Tom Perkins (mail):
Union.

/=

Union, meant.

Typo correction. Oops. TDP, ml msl, &pfpp
2.3.2009 6:51am
David Chesler (mail) (www):
"An eye for an eye, a tooth for a tooth" does not prescribe maiming, but it does limit punishments to being proportionate to the crime.
2.3.2009 6:59am
richard:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Being referred to as "the seperation clause".
2.3.2009 7:28am
OWH:
"Fire in a crowded theater." Almost always quoted this way, but the opinion never said the theater had to be crowded.
2.3.2009 7:57am
Calderon:
I'd go with "You can't shout fire in a crowded theater" when used by those on the American political left. A lot of times when I see this used now it's to justify some restriction on hate speech or college speech code (or most recently Wilders' prosecution). But of course the line was originally used to justify a restriction on political speech that I doubt left-wingers would agree with -- prohibiting anti-draft speech. The quotation illustrates that if you give the government officials latitude in prohibiting "dangerous" speech based on some non-imminent harm, their definition of dangerous may be quite different from yours.

(Of course, some people on the right might disagree with the result in Schenck as well, but I'd assume its possible some right-wingers would approve of prohibiting anti-draft or anti-war speech while I doubt left-wingers would in the current environment)
2.3.2009 8:00am
Alan Gunn (mail):
"Hard cases make bad law."

Most people seem to think "hard" means difficult, which makes the statement just about meaningless. It originally meant "having a harsh result," the point being that judges are sometimes tempted to twist the rules to avoid a result that would be hard on an appealing party in a particular case. You don't hear this as often as you used to, perhaps because it's easy to misunderstand or maybe because lots of people think being nice to appealing litigants is what judges ought to be doing.
2.3.2009 8:11am
Mr. Bingley (www):
Jonathan F. has it exactly right at 330am, it seems to me. Without the 3/5s compromise there would have been no Constitution.
2.3.2009 8:17am
krs:

"In considering this question, then, we must never forget it is a constitution we are expounding."
"The life of the law has not been logic; it has been experience."
Do these quotes actually mean anything or are they just stock phrases to put in a majority Supreme Court opinion to respond to a dissent that calls you out for a bad decision.
2.3.2009 8:21am
Arkady:

We are a nation of laws, not of men.

Variously attributed.


A stickler (probably a graduate student) might say, that's a category mistake--a cynic, "Oh, yeah?"
2.3.2009 8:39am
jukeboxgrad's favorite YouTube video:
The exception that proves the rule:
"All [group] people are stupid."
"You know that's not right. Pat is [group] and he's a genius."
"Well, Pat's the exception that proves the rule


Well... sorta. If it's so notable or surprising that Pat is a genius that it gets pointed out in situations where it doesn't seem appropriate, then Pat's intelligence may be "the exception that proves the rule."

Take Joe Biden. Senator Biden told us that Barack Obama was "clean and articulate." Well, duh. Folks who go to Columbia and Harvard generally are. But the fact that Biden felt the need to point it out shows that (in his view) African-Americans are not typically clean and articulate. Biden saw no need to point out that Hillary Clinton or John Edwards were clean and articulate, because they were not group from a group that he thought was mostly dirty and inarticulate.

In more general, less offensive terms, the expression shows that the presence of an exception to a rule shows that a rule exists:

Parent: "I let Johnny stay up until 10:00 to watch the Super Bowl." From this exception we can conclude that Johnny's normal bedtime is before 10:00.
2.3.2009 8:46am
jukeboxgrad's favorite YouTube video:
Also, some people seem to believe that "jury of his peers" means that juries should be comprised of people of the same cultural/ethnic/racial/economic/whatever background as the defendant. That's always mystified me.

Not saying that this is you, but "jury of his peers" does not appear in the constitution.

Anyway, what really grinds my gears - and one that I cannot believe has not been brought up yet - is the phrase "begs the question." I think I have heard it used correctly in speech exactly once in my life.

(Also "Immaculate Conception," but that's not a law thing.)
2.3.2009 8:49am
jukeboxgrad's favorite YouTube video:
"An eye for an eye, a tooth for a tooth" does not prescribe maiming, but it does limit punishments to being proportionate to the crime.

Very true. Not really a modern legal thing, but close enough: people (mostly the irreligious and liberal Christians) who discuss the punishments of Mosaic Law as if every violation was to be punished in strict adherence to them. Not so: they were stated as maximum penalties. Not all disobedient children got stoned.
2.3.2009 8:55am
Hannibal Lector:
How about Blackstone's "Better that ten guilty persons escape, than that one innocent suffer..." where ten frequently becomes 9, 99, 999,... etc., and which naive bleeding hearts often interpret to mean that the law should have zero tolerance for Type II errors.
2.3.2009 9:07am
Sean Gleeson (mail):
It's not a legal principle, but almost nobody uses the phrase "lion's share" correctly anymore. In the Aesop fable wherein a deer was divided among a lion, a fox, a jackal, and a wolf, the lion took all four quarters. So the "lion's share" means the whole thing, 100 percent. But the phrase is now usually misused to mean a mere majority or plurality of shares.
2.3.2009 9:13am
ruuffles (mail) (www):
@Hannibal

that should be "found innocent" instead of escape, and "found guilty" instead of "suffer." sounds more like a restatement of "presumption of innocence" and "beyond a reasonable doubt"
2.3.2009 9:18am
Houston Lawyer:
de minimis non curat lex

Modern law is very concerned with all types of trivial slights.
2.3.2009 9:21am
A Law Dawg:
"Immaculate conception" is very high on my list, thanks for pointing that out.
2.3.2009 9:23am
Liberal Libertarian:
Not sure I agree that there is an alleged misunderstadting of "I know it when I see it." I don't see it as an implied criticism of the Court, quite the opposite. Justice Stevens is clear that he is NOT criticizing the Court. In any event, I disagree with the empirical assumption: in my experience, the phrase is rightly used for the indefinable, not the power of intuition.

In any event, here is the entire concurrence. Judge for yourselves (...lest ye be judged? :-):


It is possible to read the Court's opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, [n1] that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. [n2] I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
2.3.2009 9:27am
Yankev (mail):

The motiviation is irrelevant, and frankly the fact that it was a "compromise" only makes it the more offensive -- the compromise was to treat human beings as 3/5 of a person for determining the most important federal counting of persons.
So it would have been more honorable to count slaves (not black people, remember -- free black person were fully counted) as a whole person and let the slave owner cast the slave's vote? Or would it have been more honorable to not count them at all, in which case we would hear the same ignorant grievance only moreso.
2.3.2009 9:46am
Strict:

I've never quite understood what is meant by the non-lawyerism "Possession is nine-tenths of the law." I think it must be something like "Finders keepers, losers weepers."


That's a property interpretation.

I think it's also applicable to criminal law - if you possess it, it's yours. How many times has an officer heard "Oh this weed? Officer it's not mine!"? Classic.
2.3.2009 9:47am
1Ler:
Word of advice: don't teach your kids what the 3/5 Compromise actually stood for. Or at least tell them to keep it to themselves. I remember getting into really hot water in high school for trying to explain why counting slaves as whole persons might have prolonged (or even expanded) the institution.
2.3.2009 9:50am
Stephen C. Carlson (www):

Actus reus and mens rea are always translated as "guilty action" and "guilty mind." But I've never seen a latin dictionary translate "reus" or "rea" as "guilty"-- I think they mean something more along the lines of "accused" or "answerable." But my latin never got much beyond elementary, so it could be that the common translation is right and I'm wrong.


From Lewis and Short's Latin Dictionary for "reus, rea" (examples and citations omitted):


I. Originally, a party to an action (res), either plaintiff or defendant; afterwards restricted to the party accused, defendant, prisoner, etc.: ***

II. In the stricter sense.

A. A party obliged or under obligation to do or pay any thing, one answerable or responsible for any thing, a bondsman, a debtor: ***

2. Transf., in gen., one who is bound by any thing, who is answerable for any thing, a debtor (very rare): ***

B. One who is accused or arraigned, a defendant, prisoner, a criminal, culprit (the predominant signif. at all periods and in all styles; cf.: nocens, sons"): ***

(b). With a statement of the crime or the punishment, one guilty of any crime, one condemned to any punishment: ***
2.3.2009 9:53am
David Chesler (mail) (www):
I understand that "proves" is in the sense of "tests", not "demonstrates". (It's an older usage, I'll leave it to the reader to find examples, and it's a reasonable shift in meaning.) So it comes down to "The apparent exception tests whether the rule is true; if we can show that the rule is still true considering the apparent exception, the rule is true; if we cannot, we have shown the rule to be false."

(The "rule" might be "All A are B". What about the apparent exception a which appears to be A but not B? For the rule to be true we have to show that a is not really A, or that a is in fact B. We might end up modifying the rule to All non-C A are B, which could still be useful. There are only two extant families of monotremes.)
2.3.2009 9:53am
Joseph Slater (mail):
David E. Young:

I think the phrase "law office history" is generally correctly understood by folks who use the term. You bring up one example where you think folks opposing your point of view used it unfairly in the course of litigation. I have no view on your particular example, but even if you're correct in that instance, I don't think that shows that the phrase is widely misunderstood or misused.

Or maybe this is the exception that proves the rule. . . ?
2.3.2009 9:57am
Yankev (mail):

"An eye for an eye, a tooth for a tooth" does not prescribe maiming, but it does limit punishments to being proportionate to the crime.
And most people (especially those who do not follow the Jewish religion) do not realize that the verse is metaphoric and refers to monetary compensation, up to and including "life for life", which means that one who negligently causes the death of another must compensate the survivors of the victim. Yes, capital punishment is prescribed for deliberate murder, but that punishment is based on another verse entirely.

While we're at it "Thou shalt not kill", when invoked in opposition to war, capital punishment or sel-defense. Ditto "Vengeance is mine, says the Lord" in connection with any of those three.


Exception proves the rule
When this saying became current, "Prove" meant to "test", and the proper meaning of this phrase is "The exception tests the rule", not "The exception is evidence of the rule."
2.3.2009 9:58am
jukeboxgrad's favorite YouTube video:
David Chesler:

I understand that "proves" is in the sense of "tests", not "demonstrates".

That interpretation is accepted as valid by some, but it is not the original meaning... according to Wikipedia, FWIW.
2.3.2009 10:00am
krs:

Word of advice: don't teach your kids what the 3/5 Compromise actually stood for. Or at least tell them to keep it to themselves. I remember getting into really hot water in high school for trying to explain why counting slaves as whole persons might have prolonged (or even expanded) the institution.
Sounds more like the advice should be "be careful when discussing slavery in high school."
2.3.2009 10:02am
1Ler:
Yankev, can you explain the "Thou shalt not kill" interpretation to someone entirely ignorant of the Hebrew language? I always assumed it was a translation issue (or that it was just dreadfully consistent with other Old Testament commands).
2.3.2009 10:02am
jukeboxgrad's favorite YouTube video:
Not really a "misunderstood" phrase, but hearing a lawyer say "make a motion" makes my ears hurt, and everyone does it. I guess it's technically correct, but what you're doing is moving.
2.3.2009 10:09am
mf24:

Sounds more like the advice should be "be careful when discussing slavery in high school."


"Avoid ever discussing race in any setting" is safer still.
2.3.2009 10:14am
Lior:
"Making a motion" is still infinitely better than "motioning" (the up-and-coming usage).
2.3.2009 10:18am
Yankev (mail):

Yankev, can you explain the "Thou shalt not kill" interpretation to someone entirely ignorant of the Hebrew language?
"Thou shalt not murder", referring to the deliberate unlawful taking of a life.

Without getting too technical, Jews use a translation direct from the original Hebrew. The KJV and its offspring were translated into English from an earlier Greek translation. Each layer of translation, of course, introduces additional inaccuracies and loss of nuance. (Another example is the mistranslation of "work" for the activities that are prohibited to Jews on the Sabbath.) I am told that Greek is a highly precise language. Hebrew is nuanced and less precise; the same word can have multiple (and sometimes contradictory, sometimes complimentary) meanings, depending on context. This difference in the structure of Hebrew and Greek further compounded the problems inherent in any translation. For some excellent translations of Gen. thru Deut. into English, try the Living Torah, translated by Rabbi Aryeh Kaplan, or the Pentateuch and Commentary by Rabbi Samson R. Hirsch (which itself was translated from his German language translation and commentary). R. Hirsch's commentary, in particular, contains numerous scholarly expalnations of the Hebrew word roots, explaining how he chose which of several possible meanings to give a word when translating it. R. Kaplan's translation is more readable, and often uses footnotes to explain other possible meanings of the word translated.
2.3.2009 10:19am
anon1234 (mail):
Of course it would have been more honorable to count slaves as full people for purposes of the census. Just like you count children, women, and the mentally incompetent. Franchise did not equal population. By compromising on slavery, both sides say that this is a political dispute with a political resolution. In other words, they split the baby and that was/is offensive.
2.3.2009 10:25am
SeaDrive:
Congress is famous for giving bill misleading titles, e.g. a pro-environment title on a bill loosening restrictions.

Another big area of mischief is the wording of ballot propositions, so that a voter has to say "Yes, I don't want that" or "No, I don't want that."
2.3.2009 10:27am
Yankev (mail):

Not really a "misunderstood" phrase, but hearing a lawyer say "make a motion" makes my ears hurt, and everyone does it. I guess it's technically correct, but what you're doing is moving.
That probably falls under barbarisms. Other favorites are "co-habitating" (thereby committing the crime of co-habitatingtion?") and administrating. I have given up on "loaning" and "gifting".
2.3.2009 10:33am
SeaDrive:

Senator Biden told us that Barack Obama was "clean and articulate." Well, duh. Folks who go to Columbia and Harvard generally are. But the fact that Biden felt the need to point it out shows that (in his view) African-Americans are not typically clean and articulate.


Biden is perfectly capable of discussing something as a hypothetical, or from some point of view that is not his own. He is, after all, famous for being misunderstood. If you want to slam him a racist, I think you need something more direct.

As to the merits, Ann Landers once used a phrase that I assume is an old one, but which I have not read elsewhere. She said "To excuse is to accuse." I think that works here.
2.3.2009 10:34am
emsl (mail):
Two minor points. First, Chesler is right and Wikipedia, to the extent inconsistent, is wrong. "Prove" in this context does mean test. Just like the "Proving Grounds" that the Air Force uses are to test aircraft, not logicians. Second, the distinction between "kill" and "murder" as articulated above is critical and too often ignored. The Hebrew Bible is clear that self-defense and justified war are not prohibited.
2.3.2009 10:35am
Happyshooter:
I remember getting into really hot water in high school for trying to explain why counting slaves as whole persons might have prolonged (or even expanded) the institution.

I was in law school and was taking a nonsense deep thoughts course. We owed a paper on top of reading the books and showing up to talk about them. I ended up getting interested in the death rates of slaves pre-civil war and black convicts under convict lease post civil war.

My conclusion was that, for sure once blacks males of working age started getting locked up for nothing, convict lease was terrible and much worse than slavery.

My conclusion was that the convict lease system, given the state's goal was to raise money through effective slavery and that wouldn't have been anything that could have been stopped back then, should have been reformed to have the owners pre-pay a lease for the convict's term and pay a penalty on top of that if the convict sickened, was crippled, or died.

I got it back with big red letters "This is totally unacceptable!" on that paper. Good times.
2.3.2009 10:38am
jukeboxgrad's favorite YouTube video:
emsl:

First, Chesler is right and Wikipedia, to the extent inconsistent, is wrong.

Wikipedia is wrong a lot. But you're saying that Fowler's Modern English Usage is wrong?
2.3.2009 10:41am
mlm (mail):
I hate "the constitution is not a suicide pact", heard so often in the Bush years.

First, the idea is stupid. Second, it's not a quote. Third, the "suicide pact" is from a dissent in a free speech case where the majority was correct.
2.3.2009 10:50am
Some Dude:
There must be something misunderstood about the right to privacy clause when applied to abortion. What if a woman waives the right to privacy by publicly declaring she is going to or has had an abortion?
2.3.2009 10:53am
A Law Dawg:
There must be something misunderstood about the right to privacy clause when applied to abortion. What if a woman waives the right to privacy by publicly declaring she is going to or has had an abortion?


I'm despise Roe and Casey and still can't figure out what you're saying here.
2.3.2009 10:55am
Some Dude:

Congress shall make no law respecting an establishment of religion...

It does not read "Congress shall make no law establishing a religion."

"Respecting" means concerning or about. Congress shall make no law concerning or about an establishment. That is to say, for or against an establishment of religion. No law whatsoever on the subject. If government schools violate that with prayers or whatever, Congress can do nothing about it except to remember that government schools were established through laws. If government schools are somehow involved in the establishment of religion, then the laws that set up the schools are, in effect, laws that concern, or are about establishment and must be repealed. Free the school system!
2.3.2009 11:00am
Some Dude:
A Law Dawg,

If a woman publicly declares she is going to have an abortion, she is waiving her right to privacy, no? It is no longer a private matter. The right to privacy clause shouldn't apply. She should be able to be prosecuted.
2.3.2009 11:03am
zippypinhead:
..."The life of the law has not been logic; it has been experience."

Do these quotes actually mean anything or are they just stock phrases to put in a majority Supreme Court opinion to respond to a dissent that calls you out for a bad decision
Actually, this particular phrase appeared in Holmes' book The Common Law. And it's uproariously funny when justaposed against a profession whose most respected professional journals are almost entirely controlled by mere students, and whose judicial opinions are often ghostwritten by first- and second-year law clerks who may not have even sat for the bar yet. Under those circumstances, we can only pray that there's sometimes a bit of logic in play to make up for the gross lack of experience...

On a somewhat similar vein, there's the legal witticism:

"The only thing more fearsome in a courtroom than an old lawyer with decades of experience is a young lawyer with a rulebook."
2.3.2009 11:07am
Steve:
In 15 years of practice I have never heard the phrase "law office history." Is it common?
2.3.2009 11:12am
lsu (mail):
Prayer is banned in public schools.
2.3.2009 11:17am
Thales (mail) (www):
Re Taney/Dred Scott: "He was merely describing a situation -- and not just in the US -- one he did not approve of, but was bound by."

I would note to self-described "originalists" and "strict constructionists" for whom Dred Scott is claimed to be a bete noire that the opinion is full of originalist (including of the original public meaning school) rhetoric. It's also arguable that the decision was not incorrect from a legal standpoint, though of course horribly catastrophic. See Mark Graber's Dred Scott and the Problem of Constitutional Evil.
2.3.2009 11:29am
David Schwartz (mail):
Yankev:
Each layer of translation, of course, introduces additional inaccuracies and loss of nuance.
Or repairs additional inaccuracies and adds nuance, depending on the assumed competency of the translators.
2.3.2009 11:30am
krs:
re: abortion/privacy, abortion is based on autonomy, not privacy, and the rhetoric in the decisions is moving in that direction lately. See Judge Friendly's pre-Roe draft opinion that was never issued.
2.3.2009 11:39am
anonn:
I like the dissent in the Supreme Court case written by Brandeis and cited often that expounds the virtues of Federalism and that states are supposed to be the breeding grounds of liberty. He, of course, was talking about the rights of the states to form cartells and exclude others from competing in (i think) the ice business.
2.3.2009 11:42am
Some Dude:

lsu (mail):
Prayer is banned in public schools.

Right. A ban that is concerning/about establishment. To have a policy from above saying you can't pray in government schools is, by definition, concerning/about establishment. Such a ban should not be allowed. If it is found that government schools are in some way establishing religion, then the only recourse is to declare the underlying laws that establish government schools to be in violation of the establishment clause and null and void.
2.3.2009 11:42am
Interlocutor (mail):
I'll vote for "begs the question" for all the reasons given above. It is just so rare to hear it used correctly, and so common to hear it misused, even by people who I otherwise find to be articulate.
2.3.2009 12:00pm
Hannibal Lector:
ruffles:

My quote was correct: "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem.
2.3.2009 12:06pm
Hannibal Lector:
ruuffles:

My quote was correct: "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem.
2.3.2009 12:08pm
arbitraryaardvark (mail) (www):
TerrencePhilip:
"You can possess a gun in your car, because the car is an extension of the home."

The Indiana constitution's section 11, textually the same as the 4th Amendment, gives heightened protection to cars because they are like houses. I think it's Brown v State.

Randy R.
I heard some people who think that the right to life, liberty and the pursuit of happiness is in the constitution.

Some version of that is in nearly every state constitution, typically as article 1 section 1. Go check yours.
fixed:
Ours is a government of lawyers, not of men.
2.3.2009 12:24pm
a juror:

How about Blackstone's "Better that ten guilty persons escape, than that one innocent suffer..." where ten frequently becomes 9, 99, 999,... etc., and which naive bleeding hearts often interpret to mean that the law should have zero tolerance for Type II errors.


In my experience as a juror, differences as to how many nines should be included here had a major effect on the verdicts. I wonder how much variability in verdicts results from differing opinions - and whether juries ought to get a slightly more specific definition of reasonable doubt.
2.3.2009 12:32pm
RobinGoodfellow:
I haven't had time to read all the posts, so if someone has already covered this, I'm sorry.

Corpus delecti: I think most people think this refers to an actual corpse, which is evidence of a murder. As I understand it, it actually refers to the entire criminal act. Or some such.

Of course, everyone knows that corpus callosum is evidence of a big crime, right?
2.3.2009 12:56pm
Jeff R.:
I strongly doubt that Hugo Blacks "No Law means No Law" wasn't nearly as absolutist in intent as some of the subsequent 1st amendment advocates who have used it...
2.3.2009 1:08pm
Roscoe B. Means (mail):
Orin observes:

Of course, the First Amendment applies beyond Acts of Congress, so a purely textual response isn't much more accurate.

And this is correct, only because the establishment clause is (for good or bad) the hands-down winner in this derby. Its application by "incorporation" was textually impossible, and made the Amendment itself into exactly the kind of federal law it was meant to prohibit - one respecting ("concerning, about, or on the subject of") an establishment of religion. That interpretation, in turn, has spawned the "separation" quotes from people who think that word actually appears somewhere in the Amendment.
2.3.2009 1:10pm
Redman:

With all due respect, your Honor.

Always struck me as an insult to what the court is about to do.
2.3.2009 1:12pm
J. Aldridge:

To be sure, the original Constitution was tainted by its failure to resolve the question of slavery.

Well it did resolve the question as far as the powers of the general government allowed. An exception was made to impose a tariff on the importation of persons rather that goods alone which is all the regulation of commerce could act on.
2.3.2009 1:12pm
Aultimer:

anon1234 (mail):
Of course it would have been more honorable to count slaves as full people for purposes of the census. [...] In other words, they split the baby and that was/is offensive.

A "split baby" is one where both of the parties would rather "lose" (or win) than have the adjudicated outcome. Like when plaintiff wants their money back on a partiall performed contract, the defendant wants both parties to perform and the arbitrator decides that half a bridge is worth half the agreed price.
2.3.2009 1:31pm
LM (mail):
Yankev:

So it would have been more honorable to count slaves (not black people, remember -- free black person were fully counted) as a whole person and let the slave owner cast the slave's vote? Or would it have been more honorable to not count them at all, in which case we would hear the same ignorant grievance only moreso.

So, it would have been more honorable for me to leave the raped and murdered body on the bed for the poor husband to find? I say cutting it into the pieces I stuffed into garbage bags and deposited in several dumpsters was the only humane thing to do.

Once you accept a moral compromise like legal slavery, that decision swallows every attempt to mitigate it. Is it better for census purposes to count a slave as 3/5 of a person or a whole one? There's no good answer because it assumes the legality of slavery. We may forgive the founders their moral failings, as we hope future generations will forgive ours, but that doesn't mean we should try to justify putting any sort of lipstick on that pig.
2.3.2009 1:48pm
Frater Plotter:
The "prayer in public schools" thing is misinterpreted in a whole hell of a lot of ways.

Some religious folks clearly believe (or, at least, say they believe) that secularists or the ACLU want to "ban prayer in the schools" -- such that a student would be punished for, e.g., saying grace before lunch or praying in a locker room before a football game. That people opposed to "prayer in public schools" want to make the school a religion-free zone, where students are prohibited from expressing their religious views.

But in actuality, the ACLU has frequently defended voluntary religious expressions by public-school students, even including outreach and proselytizing activities such as distributing religious literature at school, giving out candy canes with Bible verses, and singing "Awesome God" at a school talent show.

The whole point of the "prayer in public school" challenges is not to forbid students from voluntary religious expression, but to forbid schools from mandating religious expression. It's to prevent public schools from requiring students to participate in religious activities that violate their beliefs; to prevent public schools from creating a hostile environment for students of a minority religion; to prevent public schools from proselytizing students and trying to convert them.
2.3.2009 1:56pm
Some Dude:

Frater Plotter
The whole point of the "prayer in public school" challenges is not to forbid students from voluntary religious expression, but to forbid schools from mandating religious expression.

It doesn't look that way when a student is told what he can or cannot say in a valedictorian speech.

Anyway, I'll grant what you say is true. On what grounds are such policies that forbid schools from mandating religious expression made? The establishment clause? You can't make policy concerning/about establishment. Period. That's what the establishment clause is. "Congress shall make no law [concerning/about] the establishment of religion." If that is in any way incorporated to more local governments, then the proper incorporation would be: "government entities may make no policy concerning/about establishment."
2.3.2009 2:11pm
Yankev (mail):

Or repairs additional inaccuracies and adds nuance, depending on the assumed competency of the translators
David, while this may be possible, it seems to me that if a work is translated from language A to language B, and then from language B into language C, the way to repair the inaccuracies and loss of nuance is not to add another layer of translation, but to go back and have a competent translator translate directly from language A into C.

Given translators of equal competence, a translation from A to C is likely to be more accurate than a translation of the same work from B to C where the original work had been written in A and then translated into B -- the moreso if languages A and B differ radically in structure and thought pattern.
2.3.2009 2:22pm
Frater Plotter:
Some Dude:

The "Establishment Clause means the government can't forbid the government from establishing religion" interpretation strikes me as a mockery. It's as if someone said that "'To bear arms' means to use weapons to fight; therefore the Second Amendment 'right to bear arms' means the government may not ban assault and battery."

The specific case of valedictory speeches is hard, but the distinction is clear and consistent, I think. The ACLU has supported voluntary religious expression by students at extracurricular activities such as talent shows, but opposed religious expression as part of formal school functions such as graduation ceremonies.
2.3.2009 2:23pm
Dave R. (mail):
"Ignorance of the law, which every one is bound to know, excuses no man."

Implying to me that capitol and malum in se crimes where an offender must know they are defying morality and social convention cannot be excused by ignorance of the exact statute and penalty. Strangely that middle part has been dropped and the abbreviated version is fondly quoted by the enforcers and cheerleaders of a multiplying regulatory state.
2.3.2009 2:23pm
PaddyL (mail):
A criminal defense lawyer discussing fee options with his client, told him there are three options. You can have the $5000, $500, or $5 defense. The lawyer was asked to explain the $5 defense. The attorney informed his client that he would offer no evidence for the defense. However, he would inform the jury of his innocence, but the jury could reach their own conclusions.
2.3.2009 2:26pm
Duncan Frissell (mail):
Lots of misunderstood stuff in the Constitution:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

"No State shall ... make any Thing but gold and silver Coin a Tender in Payment of Debts"

"The Congress shall have power ... to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;"
2.3.2009 2:27pm
Yankev (mail):
So, it would have been more honorable for me to leave the raped and murdered body on the bed for the poor husband to find? I say cutting it into the pieces I stuffed into garbage bags and deposited in several dumpsters was the only humane thing to do.


Once you accept a moral compromise like legal slavery, that decision swallows every attempt to mitigate it. Is it better for census purposes to count a slave as 3/5 of a person or a whole one? There's no good answer because it assumes the legality of slavery. We may forgive the founders their moral failings, as we hope future generations will forgive ours, but that doesn't mean we should try to justify putting any sort of lipstick on that pig.
Then have the honesty to say that you believe the union should never have been formed, and that the constitution devalued people by permitting slavery. I can respect that argument, though I am not sure I agree with it. But don't come up with the childish grievance that the constitution's sin was in counting slaves as 3/5 of a free man, rather than as a full man.

So, it would have been more honorable for me to leave the raped and murdered body on the bed for the poor husband to find? I say cutting it into the pieces I stuffed into garbage bags and deposited in several dumpsters was the only humane thing to do.
The logic of this analogy escapes me.
2.3.2009 2:27pm
Yankev (mail):

Some religious folks clearly believe (or, at least, say they believe) that secularists or the ACLU want to "ban prayer in the schools" -- such that a student would be punished for, e.g., saying grace before lunch or praying in a locker room before a football game. That people opposed to "prayer in public schools" want to make the school a religion-free zone, where students are prohibited from expressing their religious views.
Suppose I told you that back in my liberal Democrat days, I had secularist classmates in law school who took exactly the same position, and who firmly believed that a voluntary, inaudible grace by a student violated the establishment clause by using public property for religious purposes? Unfortunately, sometimes life caricaturizes itself.
2.3.2009 2:31pm
Some Dude:

Frater Plotter:
The "Establishment Clause means the government can't forbid the government from establishing religion" interpretation strikes me as a mockery.

Yet that's what it says. It's not like the government has no recourse. They could declare that the laws establishing government schools inherently affect the establishment of religion and declare such laws that establish government schools null and void.* Or decide that the laws that establish government schools do not affect establishment and leave schools alone in that regard.

*hooray! free-market schooling!
2.3.2009 2:36pm
Yankev (mail):
Sean Gleason, if Lion's Share means less than it used to, decimate now means more. Originally it was a punishment meted out to Roman legions, in which every tenth soldier would be executed. The legion was punished without endangering the empire by a greater weakening of the legion's fighting strength. The punishment fell on the surviving 90% because they lost friends and comrades, they were at risk of having been part of the executed 10%, they had to pick up the slack in combat and in work details, and their safety in battle was decreased.
2.3.2009 2:36pm
Frater Plotter:
Yankev: I'd take them about as seriously as I'd take the folks I've known who believed that Jefferson and the other Founders all believed, to a man, in salvation by faith in Jesus Christ; and that they established a Christian nation in which atheists, Jews, Muslims, or other non-Christians were not to be considered citizens.
2.3.2009 2:37pm
Yankev (mail):

I'd take them about as seriously as I'd take the folks I've known who believed that Jefferson and the other Founders all believed, to a man, in salvation by faith in Jesus Christ; and that they established a Christian nation in which atheists, Jews, Muslims, or other non-Christians were not to be considered citizens.
Frater, I took them more seriously because they were active in the state Democratic party, though of course I thought they were nuts.

Your citizenship observation accurately describes the requirements for citizenship in colonial Maryland, by the way.
2.3.2009 2:43pm
David Schwartz (mail):
David, while this may be possible, it seems to me that if a work is translated from language A to language B, and then from language B into language C, the way to repair the inaccuracies and loss of nuance is not to add another layer of translation, but to go back and have a competent translator translate directly from language A into C.
Nonsense. If you do it that way, you get back all the mistakes that were fixed in the first translation and lose all the nuances that were added. If the second translator doesn't fix them, the result may well be drastically inferior.

There are two possibilities:

1) The work is divinely inspired. In which case, the translators are likely divinely inspired as well. To undo what they have done is to lose divine input, divine nuance, and divine meaning.

2) The work is not divinely inspired. In which case, the translators are unlikely to be divinely inspired. In this case, the translators are just as likely to fix defects in the original work as create new defects. In fact, with their added knowledge and perspective, one would hope they would be able to fix problems in the original work. Losing these fixes would be counter-productive.

If your goal is to investigate the bible as it was originally written, sure, go to the original source. But if your goal is to get the most accurate source, there is no reason to think translators make things worse rather than better. (And if the original, and the translators, are divinely inspired, they surely add nuance and add updates.)
2.3.2009 2:50pm
mlm (mail):
The fugitive slave clause is worse than the 3/5 clause.
2.3.2009 3:00pm
Frater Plotter:
Yankev: It wasn't just Maryland, you'll find. Jefferson addressed that explicitly in his letter to the Danbury Baptist Association of Connecticut ... which is where the expression "wall of separation between church and state" comes from.

The Baptists, being a persecuted religious minority in New England (where the Congregationalist church was established) sought assurance that the new Constitution would protect the rights of religious minorities. Jefferson's response was that "the legitimate powers of government reach actions only, &not opinions" and that the First Amendment was a declaration that religious belief was outside the purview of legitimate government action.

Jefferson's words would have been no comfort to the Baptists had he (and the First Amendment) meant to endorse the establishment of the Congregationalist church, as Some Dude suggests. A more sensible interpretation of the Founders' intent is, as Jefferson put it, that the First Amendment was an "expression of the supreme will of the nation in behalf of the rights of conscience" -- and thus in opposition to establishment.
2.3.2009 3:11pm
anon1234 (mail):
I'm referring to the original split baby term as in the Bible. The split baby is the compromise that devalues the slave to 3/5 of a human being. The non-slave states should have said been repulsed by the proposal and sought another solution even if they had to give up some political power. Instead, they said, "sure, that's a reasonable solution to this problem." Orin wants to contend that people misunderstand the 3/5 compromise and unfairly complain that it is pro-slavery vs. a compromise that favors the anti-slavery POV. Orin is simply wrong. The solution that the Northerners accepted is as if the real mother in the Solomon story said, "sure, where's the sword so we can split this baby." Please note that all Colonial census of the slave states record number of slaves as part of the household so the idea that they are not fully part of the household (just as women) does not make sense. The non-slave states DID value the human beings who were slaves less than free men and were perfectly willing to compromise in the interests of their political power. Also, keep in mind that the lack of Constitution would not have been a disaster since a framework called the Articles of Confederation still existed. To suppose that the resolution to slavery would have happened less quickly if the strong Federal govt. of the Constitution did not happen immediately is just idle alternate universe fiction without any basis in reality. For every scenario you can spin where the failure to ratify a Constitution in 1787 or a weaker federal govt. leads to slavery lasting longer, I can construct one that leads to a shorter tenure of slavery (without a Civil War).
2.3.2009 3:36pm
Kirk:
Yankev,
The KJV and its offspring were translated into English from an earlier Greek translation.
Not so; the KJV translators used the Masoretic text as the primary basis for the Old Testament books (outside the Apocrypha.)
I am told that Greek is a highly precise language. Hebrew is nuanced and less precise; the same word can have multiple (and sometimes contradictory, sometimes complimentary) meanings,
Well, well. That statement can be Exhibit 1 for another post titled "Famous Misunderstood Linguistic Quotations and Statements". While it's true that all languages have areas where they are more or less precise, making a blanket statement about an entire language in general is fairly meaningless.

One factor that is true, that might be influencing the incorrect Greek Precise/Hebrew Ambiguous conclusion, is that the Greek NT has a vastly larger corpus of cognate works, and as a result we simply know much, much more about Koine Greek than we do about the Hebrew of the Pentateuch, and hence can disambiguate more cases.

RobinGoodfellow:
corpus callosum
I don't get the connection you're trying to make here.
2.3.2009 3:48pm
krs:

Actually, this particular phrase appeared in Holmes' book The Common Law.


I know that. Perhaps I should have said, Do these quotes actually mean anything anymore.

Holmes was right, of course, but his words have been misused and the quote seems nowadays to be the standard copout for judges when they have no response to people who disagree with them.
2.3.2009 3:48pm
Yankev (mail):

If you do it that way, you get back all the mistakes that were fixed in the first translation and lose all the nuances that were added. If the second translator doesn't fix them, the result may well be drastically inferior.
Wait a minute -- the first translator fixed mistakes? In what, the original?
2.3.2009 4:00pm
Yankev (mail):

The non-slave states should have said been repulsed by the proposal and sought another solution even if they had to give up some political power.
Even at the risk of giving slave holders a disprortionate voice in the Congress?

The solution that the Northerners accepted is as if the real mother in the Solomon story said, "sure, where's the sword so we can split this baby."
Except that once the baby is dead, it's dead. Whereas the 3/5 compromise admittedly did not end the question of whether slavery would be permitted in the US.

To suppose that the resolution to slavery would have happened less quickly if the strong Federal govt. of the Constitution did not happen immediately is just idle alternate universe fiction without any basis in reality.
As opposed to your reality-based theory that slavery would have ended at least as quickly without the 3/5 compromise?
2.3.2009 4:06pm
Sean Gleeson (mail):
The side-discussion on Biblical translation is interesting. But I want to correct a slight misstatement that was made.

The Authorized King James version did not rely on Greek text for its Old Testament translation, so it does not fit the A-to-B-to-C pattern of which it is accused. Rather, the KJV Old Testament used the Bomberg Masoretic Hebrew text as its main source. Care was taken to consult the Greek and Latin (as well as prior English) translations, but it was mainly the direct A-to-C translation that you are holding as an ideal. In fact, many Hebrew words entered the English language in the 17th Century because the KJV translators couldn't find an exact English word to use, and left them in Hebrew.

The Douay Old Testament, on the other hand, was based on St. Jerome's Latin translation of the LXX Greek translation of the original Hebrew, so it was an A-to-B-to-C-to-D translation. Comparing the Douay to the KJV turns up many artifacts of the different paths to English. One of my favorites is Lev. 19:36, which commands honest weights and measures in trade. The KJV says, "a just ephah, and a just hin, shall ye have" (which is hardly translated at all, if you ask me). The Douay instead says, "the bushel just, and the sextary equal," betraying its Latin roots (a sextarius was something like a pint in ancient Rome, but had long ago fallen into disuse).
2.3.2009 4:12pm
Yankev (mail):

Not so; the KJV translators used the Masoretic text as the primary basis for the Old Testament books (outside the Apocrypha.)
Kirk, I stand corrected. Of course, this fact makes some of the ludicrous mistakes even more difficult to explain.
2.3.2009 4:12pm
John Herbison (mail):
Justice Stewart is reported to have joked that the "I know it when I see it" line, t his chagrin, would be engraved on his tombstone. The irony is that he was speaking in his concrrence in Jacobellis v. Ohio of a movie so tame that, by anyone's standards, it did not qalify as "hard -core pornography".
2.3.2009 4:18pm
Kirk:
Yankev,
this fact makes some of the ludicrous mistakes even more difficult to explain.
Well, not only do we know a lot more about the Biblical languages than they did in 1611, but we also have some newer (and better) theories of what translation even is. I don't mean to be critical of the KJV, however: given the state of knowledge and practice at the time, I stand in awe of what Lancelot Andrewes and his colleagues achieved.
2.3.2009 4:35pm
Yankev (mail):
Sean Gleason, thank you for setting me straight about the KJV's sources. It is unfortunate that (presumably for theologic reasons) the translators apparently failed to consult Rashi, Abraham Ib Ezra, and other classic commentaries on Hebrew grammar and vocabulary, or the various discussions in the Talmud as to the meaning of a given word.

There is something to be said for the Douay approach and the KJV approach. (A modern translator might lean to the former combined with footnotes or a glossary.) Biblical names are often significant in Hebrew, and that significance is often lost in translation. How many people read about Beulah land without knowing that the word means married (literally "en-husbanded"), or that Hepzibah is an anglicization of Cheftzi-vah (my desire has come), or that the name of David's enemy, Naval (does the KJV use Nabal?)means "bum, scoundrel, worthless fellow"? Or that be'er sheva means either well of the seven (from sheva, the number 7) or well of the oath (from she'vuah, oath)? In numerous places, the text explains why a particular person or place was given a particular name. Modern translations use notes to explain the meaning of the name; how does the KJV -- or any of the per-twentieth century translations for that matter -- convey the connection between the name and the reason?
2.3.2009 5:33pm
Carl the EconGuy (mail):
As a property rights economist, I've never understood why the Supreme Court has limited compensation under the takings clause only to actual physical confiscation of real property. Medieval English common law had a better understanding of this when recognized that all rights were "incorporeal things". On that old logic, which would be consistent with how economists view rights as pertaining to all things you can do with all valued assets, real or moveable or intellectual, the takings clause should apply to regulations etc. -- as in the Lochner era. The old definition of "liberty" clearly meant the right to property -- again, the courts have constrained the interpretation of that too, in order to free governments from the most basic intent of the Fifth Amendment. So, I offer the words "property" and "liberty" as two instances of deliberately mischievous historical misinterpretations by modern courts. They didn't split this baby, they chopped it up, and made mincemeat of the poor creature.
2.3.2009 5:37pm
Tony Tutins (mail):

The Douay Old Testament, on the other hand, was based on St. Jerome's Latin translation of the LXX Greek translation of the original Hebrew, so it was an A-to-B-to-C-to-D translation.

Except for the Psalms and the Apocrypha, Jerome translated the Old Testament directly from Hebrew, according to wikipedia. "Exigent circumstances" caused the English Catholic scholars who had fled to France during the Reformation to use the Vulgate as the source of the Douay Bible. So it was A to B to C.
2.3.2009 5:41pm
JoeSixpack (mail):
I've known a number of people who mistakenly thought that "the right to bear arms shall not be abridged" meant that government could not abridge the right to bear arms.
2.3.2009 5:43pm
Tony Tutins (mail):
Yankev: the durability of the Latin Vulgate can be explained because the Roman Church had been co-extensive with the Roman Empire. Even after the fall of Rome, to be literate meant you could read Latin.
2.3.2009 5:47pm
Sean Gleeson (mail):
Tony Tutins: Thanks you for the correction.

Yankev:
How many people read about Beulah land without knowing that the word means married (literally "en-husbanded"), or that Hepzibah is an anglicization of Cheftzi-vah (my desire has come)


Well, the KJV just leaves the Hebrew 'Hephzibah' and 'Beulah' intact right in the English text, though the explanations are often added as footnotes or marginal commentary. The Vulgate replaces the Hebrew names with Latin words fitting the spirit of the verse: Voluntas for Hephzibah, and Inhabitata for Beulah. (St. Jerome chose to translate Beulah as 'inahibted' rather than 'married,' and I certainly don't know enough Hebrew to judge whether the choice was valid.) The Douay, of course, follows the Vulgate.

St. Jerome made similar clever translations throughout the Vulgate. He was very conscious of the meaning of names, and often tried to preserve Hebrew puns and wordplay in Latin, even at the expense of preserving the exact meaning. For instance in Gen. 2:23, "she shall be called woman, because she was taken out of man" the Latin words for woman and man -- femina and vir -- obviously do not suit the pun, and he did not want to use the clunky Hebrew-with-a-footnote solution. So he used virago instead of femina. Even though virago means something like tomboy (a manly sort of woman) and so does not fit the original meaning, it preserves the wordplay with vir.
2.3.2009 10:51pm
Sean Gleeson (mail):
Sorry, typo in above comment:
inahibted 'inhabited'
2.3.2009 10:54pm
ll (mail):


I've never quite understood what is meant by the non-lawyerism "Possession is nine-tenths of the law." I think it must be something like "Finders keepers, losers weepers."


It's from a maxim of equity, used as a rule of thumb in the court(s) of equity. Approximately:


Ownership is presumed from possession.



Being in equity, it is rebuttable.

Other maxims, from the most authoritatively authoritative of all the authoritative authorities: http://en.wikipedia.org/wiki/Maxims_of_equity
2.4.2009 12:17am
ll (mail):
I vote for the constitutional 3/5ths, and "begs the question."
2.4.2009 12:18am
ll (mail):
Anyone for: Carbon dioxide is a pollutant?
2.4.2009 12:19am
Yankev (mail):
TonyTutins,

Inhabitata for Beulah. (St. Jerome chose to translate Beulah as 'inahibted' rather than 'married,' and I certainly don't know enough Hebrew to judge whether the choice was valid.) The Douay, of course, follows the Vulgate.
Not a literal choice, but not a bad one, either. As you know, the prophets used the metaphor of a widow, or sometimes an abandoned wife or bereaved mother, to describe Jerusalem with its people in exile. And in Biblical and classical Hebrew, the inhabitants of a city are often referred to as its sons.


St. Jerome made similar clever translations throughout the Vulgate. He was very conscious of the meaning of names, and often tried to preserve Hebrew puns and wordplay in Latin, even at the expense of preserving the exact meaning.
I did not know that. Thank you.
2.4.2009 10:57am
Yankev (mail):
Sorry, Sean, I meant to address that last post to you rather than to Tony T.
2.4.2009 10:58am
SFBurke (mail):
Tony T (and others): I am particularly annoyed by the phrase "posession is 9/10ths of the law" as it is usually taken to mean that if you occupy a piece of property you essentially are 90% along the way to having a right to own it.

In fact, the phrase derives from an esteemed commentor on English history (Maitland, I believe), who noted that most of the legal rules in the 11th or 12th century dealt with whether or not a person had the right to occupy a piece of property and did not deal with the question of who actually owned the land. So he was not making any sort of statement as to whether any rights accrued to a particularly possessor of property -- he was merely stating that there were a lot more rules dealing with the right to possess rather than actual title. (or, in other words, that 9/10s of the rules relating to property dealt with issues of possession).
2.4.2009 9:21pm
David Schwartz (mail):
Given the recent comments about taxation by Harry Reid, a certain excerpt from Flora v. United States comes to mind.

Of course, the Government can collect the tax from a District Court suitor by exercising its power of distraint -- if he does not split his cause of action -- but we cannot believe that compelling resort to this extraordinary procedure is either wise or in accord with congressional intent. Our system of taxation is based upon voluntary assessment and payment, not upon distraint.
2.5.2009 7:04pm
Jonathan F.:
Our system of taxation is based upon voluntary assessment and payment, not upon distraint.

This simply means that we declare and send in our taxes by ourselves; the government doesn't send an assessor and then dock our accounts. See, e.g., here, here, and here.

I realize this is an oldish thread, but thought it was worthwhile to rebut the last comments.
2.7.2009 5:39pm
Jonathan F.:
Strike that; the last comment.
2.7.2009 5:40pm
David Schwartz (mail):
Jonathan: Rebut? Did you miss that the whole point of this thread is to list frequently misunderstood quotations? Why do you think I included the sentence before it? (It's always quoted out of context by those who misunderstand it.)
2.8.2009 7:14pm
David Chesler (mail) (www):
Habeas corpus: You can't be convicted of murder if they can't find the body, because the defense can file a writ of habeas corpus, demanding the prosecution bring forth the body of the alleged victim.
2.9.2009 12:01pm

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