Con-law is one of the few subjects in which we pay attention to the level of specificity or generality at which we are using language in either written or spoken form.
The level chosen can determine the outcome of the case. Examples are Michael H. v. Gerald D. (p. 1091), Bowers v. Hardwick, and Lawrence v. Texas. It works like this:
If you say you have the right to choose such friends as you please, I say what makes you think you have such a right. You say it's in the Constitution. I say where, point to it. It's not there. I don't recall the Constitution using the word 'friends.'
You reply it's embodied in the word 'liberty.' Says who, I say. Says me, you say. Any place else? ask I. We have the right to assemble, that means to associate, which means I get to pick and choose who I will associate with.
Okay, I say, I give up you win, you're free to make your own decisions as to whom you will be friends with, marry, have sex with, go fishing with, etc.
Let's say we've established a principle of freedom to choose your own friends and associates. Freedom of association, including freedom of intimate association. Friends is specific, association is abstract.
Intimate association is a more specific sub-set of general association.
How could this make a difference?
Suppose the question comes up this way:
Q: Do you mean to tell me that your right to association, or intimate association, as you call it, includes the claim that you have the right to have sexual relations with a person of the same sex? Where does it say that in the Constitution? It doesn't. We have to put it there. That's what case-law is all about.
Another Q: Do you mean to tell me that the right to association, of intimate association, includes the right to marry a person of a different race? (See Loving v. Virginia, where this was the issue.) Where does it say that in the Constitution? It doesn't. We put it there.
People can agree on abstract principles but then disagree on specific examples, such as those illustrated above.
In Bowers (1987), Justice White dismissed the claim to intimate association between people of the same sex by characterizing the claimed right as being no more than the right to engage in specific sexual practices which he regarded as being in the minority and not worthy of respect and thus rejected by the majority. Not without reason was Bowers regarded as the gay Dred Scott case, upholding laws making same-sex intimate relations criminal. By identifying disfavored intimate conduct specifically, Justice White, an NFL star football player in the 1930s who disfavored homosexuality, was able to fail to see and thus deny the abstract right of intimate association as an aspect of human liberty.
Fast forward to 2003 in Lawrence v. Texas, where the court revisits essentially the issue seventeen years later, with Justice Anthony M. Kennedy of California, a former Con-law professor from Sacramento writing the opinion of the Court in a 6:3 decision, as I recall. Kennedy says it was wrong to characterize the liberty rights claimed as being no more than the right to engage in sexual practices defining a much picked-on group of people who have every much a right to enjoy the protections of the Constitution as anyone else. There is no gay-exception to the Constitution (although there was as long as Bowers was law) any more than there's no exception to equal protection for people of color of any race or ethnicity (although there was as long as Plessy v. Ferguson, separate but equal, was law).
If you want to deny or disparage someone's claimed right, you mock it by describing it specifically.
If you want to uphold a claimed right, you avoid mocking it by disregarding the specific labeling or describing in order to reach "a higher level of generality," as it's called. Higher levels of generality are more inclusive and protect more people.
PUBLIC SPEAKING
For beginners in Con-law, leaping directly to generalities in order to discuss legal issues in the abstract makes it harder to follow the discussion.
"What are we really talking about," I ask students who are wandering off into the stratosphere.
For example, in briefing a case a student will state the issue is whether Congress has the power to regulate in an area where the state claims sovereign immunity under the Eleventh Amendment.
Whoa, Nellie. That may be a perfect expression of the issue, or one expression anyway (in Con-law the issue may be stated different ways depending on how you approach it). But it's too abstract, fuzzy, to stick in your head, unless you're doing it in context such that all listeners are as up to speed as you. Since you're briefing a case which you've studied especially in order to make an understandable presentation, others in the room will not be as up to speed as you.
You'll lose them by going to abstract generalities too soon.
Give the facts first. We can all understand a fist-fight. If it has grave constitutional issues growing out of it, tell us what they are AFTER explaining who was fighting whom over what. Start with the specific and lead into the general. "This raises the constitutional question of whether... because..."
True, it's the general that we're after. We can forget about the fight (who remembers what became of William Marbury; no one) once we've absorbed the principle. But first you've got to tell the story in concrete terms.
Jesus told concrete parables by which listeners to this day realize universal values. This made him so important that even non-believers set their calendars by him. There must be something to telling a story well. Shakespeare had a similar ability.
A request to try harder to present your cases skillfully. This takes more preparation. You may not have the time.
Let me put it this way. When you recite to classmates, you're letting them know what you're good for as a lawyer in the future. When you're in private practice some day, will you get the call to represent in a case your classmate needs to refer out? It's called paying the rent and putting food on the table.
When offered the opportunity to describe who you are, start selling. That is NOT the time for false modesty. Figure out how to describe yourself in a few words. I love to read, or dance, or play music, or sew.
Example: I learned that if I tell people I've newly met, when they ask what I do, that I practice criminal law, which is one way to describe it, they yawn and the conversation dies. They never think they'll ever need the kind of help that a lawyer familiar with criminal law can provide. Sometimes they're surprised.
So I thought about it and figured out a better way to describe what it is that I often do: "I represent people who have legal problems because of psychological problems."
Bam! I've got 'em.
"What does that mean," they might ask. Then we can have a conversation. Everybody knows someone who has had a legal problem because of a psychological problem, theirs or someone else's. And I've removed the stigma that "criminal" law conjures up in some people's minds.
Are you a real estate broker? Yawn...
How about, "I find people dream homes where they live happily ever after..."
Really, how do you do that? I'm all ears!
Briefing cases that you have time to prepare in advance is a way not only to polish your skills, but to shine. You're promoting. Marketing, right here in class. It's great. Each time should get a little better than the last. Think about it.
These are some of the best law school opportunities you'll have. Previous students have agreed. It's a wonderful way to learn to deal with stage-fright or nervousness about speaking before a group, which is what lawyers often do. That's one reason why I have you come forward and address the class from a lectern. There are others, as well.
Greg Woods stood in front of the classs one evening. He put on a party hat and blew into one of those colorful paper things that squeal and unroll. "Happy Birthday," he said. It was the birthday of the ratification of the Constitution. We all got a laugh. I've seen a lot of students present their cases. I remember his.
Next time you step up to the plate, Go for it! Knock it out of the park. Shine.