Constitutional Law resorts frequently to metaphor to embody a readily call-up-able image of a useful idea that we can all use to think about and as legal doctrine.
Legal doctrine as metaphor.
The "Wall of Separation of Church and State" is an early classic:
Thomas Jefferson
in reply to an address to him by a committee of the Danbury Baptist Association, took occasion to say: "Believing with you that religion is a matter which lies solely between man and his god; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, -- I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State."
Quote from the polygamy case, Reynolds (1878).
Law students need to be advised on what they should be trying to learn when studying law.
Are they trying to memorize black letter law? Black letter law is a law professor's summary of what he thinks a case, or several cases combined, hold. In an earlier day it was the custom for law book publishers to put out "hornbooks," (or "horns") that described the law of contracts, torts, property, etc. They helped students understand the bigger picture. Otherwise there's a tendency to see each case in isolation. The student can't see the forest for the trees.
If you would like to read a most interesting book in which the author, the extraordinarily successful David Boies explains the law of the cases in which he's represented in a clear, concise manner with no trace of legal gobbledygook, see "Courting Justice" (Miramax/Hyperion, N.Y., 2004). In representing George Steinbrenner, owner of the N.Y. Yankees against Major League Baseball, one of the issues is anti-trust law. Boies gives the thumbnail version which permits the reader to understand the law, the stakes, and the settlement demand bidding, which was high and risky. Likewise in the price-fixing cases against vitamin manufacturer Roche and other large companies (damages: $1.2 billion), and USDOJ vs. Microsoft, monopolization. Price fixing by Christie's and Sotheby's, the auction houses.
Clarity in explaining law is an art. Two of the best are Boies and John T. Noonan's "Narrowing the Nation's Power." Noonan is a 9th Circuit justice and he casts his account of a number of leading cases on federalism in the form of discussions among Justice Simple and his law clerks, Harvardman and Yalewoman.
Both Boies and Noonan simplify. They take all the mystery out of seemingly complex case-law. Were you to try to read the cases to understand the law, you'd get lost in an instant. You'd see so many by-roads that you'd lose track of the main highway.
Writers such as Boies and Noonan keep you on the main highway as you pass all the turnoffs. I've just used a highway metaphor to make a point.
That was artful wasn't it?
In a stroke I made a point.
That's what real artists do.
Real artists, in watercolor or oils, use a brush stroke to suggest a mountain range or a line of trees. You don't need to see a portrait of every tree or rock. You have the idea. The artist is simply helping you call it up, by simplifying.
I attended an art show at my college, for local artists associated somehow with the school. Some professor painted a picture of the red brick Administration building, which was a fine building in real life. This artist painted every brick. It must have taken forever to paint and was the dumbest painting I ever saw. This was the equivalent of painting every leaf on a tree.
A friend was studying for the bar exam. On two occasions she mentioned the writing portion of her preparation was going well and she was looking forward to the memorization part. I'd never heard of the memorization part before. What did she mean, I asked. Where you read law summaries and try to memorize them, she explained.
I've just read 150 student law exam blue books, I noted. None of them set forth anything that looked like law that had been memorized. They looked more like letters to the students' great-aunt.
One doesn't memorize law, one tries to understand this idea and that idea. If they relate to a common subject, such as torts or crimes, we name the course after all those ideas based on a common theme. If you know what the common theme is, contract law, for example, you'll have an idea that you're concerned with how contracts are formed, why they need to be supported by something in return for something, or its functional equivalence such as justifiably relying on another's promise, etc. Once you've got those big ideas in your head you can follow the ins-and-outs, such as the fact that in one jurisdiction the rule may go one way but in another a different way. Either way, we're talking about the same issue. For study purposes it seems more important to understand the issue, what the fight is over, than which way particular jurisdictions chose to go. That comes later. First you need to know whether we're talking baseball or football. Later we can worry about which team won and by how much.
One metaphor I've been thinking about recently is this.
We all have in mind some idea of what government is. Governments range from your condominium association to the city or county council, to the state and federal governments. The further away and larger the government, the more we tend to see it as a distant monster that exerts some control over our lives, even though in our political theory government is supposed to serve us. A civilian outranks a general. Public servants are working for us.
So if government wanted to tell you that you, as a black, could not have your children attend the local schools because they were reserved for whites, that was okay. And if government wanted to tell you not to engage in homosexual activity with another consenting adult, or that you could not have an abortion, that was okay. Until recently, this is the way it was in this country. Equality and liberty. Race, gender, and privacy. Those were, and are, the big issues. Pretty simple, right? It seems a lot more complicated when you "get down to cases," but those are the core ideas. If you get the core ideas you can understand the cases.
Would you prefer knowing the core ideas before you read the cases or after?
I like to know what we're dealing with before I read the cases. I provide students with previews of coming attractions when we're about to address various topics. They get a road map, on the board, provided by me. I tell them what I think is important, the headlines. Otherwise it's hard to tell what's important in a case. One word seems as important as the next.
An idiot savant could conceivably memorize every word of every case. Would that make him a great lawyer? I don't think this would necessarily be so. How would he know which ideas were important to apply to the new situation?
We read cases that come out of discrete, sometimes complex fact situations that are unlikely ever to recur. If the case isn't going to come up again in our lifetime, such as, say, the case involving whether Alaska could provide bonus money to citizens because oil had been discovered. Alaska isn't going to discover oil again any time soon, I don't think. And why not leave that to the Alaska attorneys? Because Alaska wanted to distribute the bonus money according to how long you lived in Alaska. The U.S. Supreme Court declared this scheme to be unconstitutional. Why? Because Alaska was setting up separate classes or castes of people among its residents, those who had more rights, based on longevity and those who had less. In this country we're allowed to travel to other states, settle, establish homes, families, and businesses on an equal basis as the residents who have been there forever. The 'native sons' are not better off legally than the newcomers. All have the same rights, which include the right to be made welcome, not treated like interloping strangers.
Now that we know this is the basis for the decision in the Alaska oil case, we don't care whether Alaska ever discovers more oil and wants to give another dividend. What we care about is the idea that we've learned a new idea. That we have a fundamental right to interstate travel and a welcome home in a new state, if we want. We can use that.
Think of Ben Franklin moving from Boston to Philadelphia. Or me from N.Y. to San Francisco. I didn't realize I had a constitutional right to do that when I did it, but now I do. I can use this knowledge. I don't need to remember any black letter law, nor the words of an outline. This idea is now mine. I can write about it, think about it, use it to wonder whether some other scheme put forth by a legislature discriminates against someones right to travel, such as aliens and poor people who need welfare support or schooling upon arrival. I have a new doctrinal tool to help me wonder and analyze before speaking or discussing. "But what about this right to travel," I might wonder when someone suggests slapping a residency requirement to prevent newcomers from getting a scarce and valuable government allocated resource, such as a government job or contract. Suddenly the case that I thought was about Alaska oil shows that those facts are almost incidental. The principle of the case is usable in a myriad of situations I hadn't realized. I'd learned something. And memorized nothing. Except maybe four words, "fundamental right to travel." I've stuck in "fundamental" to remind me how important this right is. Since it's so important, I can count on the Court to scrutinize carefully and strictly any attempt to burden this right with obstacles and other requirements that aren't very important to government. The fact that the government setting up these obstacles may have to pay more money if they are removed is not considered a good reason for discriminating between one group and another based on longevity in the state. The state is going to have to think up some other way to save money than by discriminating among its equally worthy citizens, just as it cannot discriminate on the basis of race. Equality of treatment despite race is another fundamental right receiving the highest level of scrutiny.
This is how I'd recommend approaching law study. Understand first, then you don't have to rely so much on memory.
As a new prosecuting attorney, I had the problem of what to say to the jury during opening and closing argument. Should I write out something? Perhaps read it? I watched an attorney do that. I decided never to do that. It was so bad, reading something to an audience. If the president wants to read his State of the Union Address, that's fine. His speech was written by him and others, vetted by the various departments of government, and will be scrutinized for nuance by every nation in the world. He needs a script. I don't. I'm not talking to the world, I'm talking to a jury that's going to watch a case being presented. I'm going to tell them what I'm going to show them. When it's over days or weeks later, I'm going to tell them what I just showed them and ask them to decide some question in my favor. I read nothing. I resolve to discuss some law, some evidence, and some conclusions. I may refer to this witness or that who had something useful to contribute. After that I have to shut up and sit down. How do I know when to do this? When I start repeating myself. That's when I have to thank the jury for its patience and ask them to do something for my client and for justice. What else is there to do? I could put my talking points on a single page or two, if I write large so the words jump off the page if I need to glance at it to make sure I didn't leave out a biggie. I never have. By the time you're done with a case, the chance that you'll leave out something big is about as likely as forgetting the names of your kids when talking about them to a friend.
Which brings me back to why I got started on metaphors to help keep law in mind.
Let's say your neighbor was able to peek through a space between the drapes in your bedroom window and he says to you next day:
You know, I don't think you should be sleeping with that person I saw you with last night. This person is of a different race, or the same gender, and I don't like what I saw you doing. Why don't you cut that out, from now on?
What would you like to say to this neighbor?
How about
"Fuck Off? It's none of your damn business who I sleep with. Or how!"
You have that right.
Your private business is yours.
Much of Constitutional Law defines who can tell whom to F*ck off. These days it seems to be the Court telling Congress. Recently it told the President (Hamdi et. al.) That's pretty good for an unelected committee of nine acting as a rolling constitutional convention, bypassing the amendment process, don't you think? That's common law interpretation though, and I'm all for it, in fact.
So many of the rights we value the most were recognized by the Court, rights that would never be adopted through the amendment process. They'd divide the country.
No politician could afford to support the right. The Court could. Because the justices do not have to seek voter approval every so often. Thank goodness. So we go with the Court and are thankful we have it, even when roundly beating it over the head on a daily basis.
That's just who we are and we're stuck with it, meaning us.
Because we're writing for posterity, we don't say F*ck off. We say, instead, who has "sovereignty."
That's legalese for who can tell whom to F*ck off.
Or we say who has the "final say" in deciding some important question, such as who you sleep with and how, you or the neighbors. Or whether a right belongs to Congress or the states, i.e. federalism issues. Or which branch of the federal government has final say over the others on a particular issue: legislative, executive, or judicial, called Separation of Powers issues.
With that in mind, we can break Con-law down into just a few parts:
- Structure of Government
- Separation of Powers
- Federalism
- Individual Rights
- Due Process (Procedural) is concerned with Fair Hearings when important rights are threatened to be taken away. What do you want when that happens? Notice, an opportunity to be heard (and assisted by counsel, to present your side, call witnesses, ask questions, use the courts legal process - subpenas, etc., and testify, or decline to testify w/o adverse inference being drawn, etc.), before an impartial tribunal.
- Due Process (Substantive, meaning "Liberty") is concerned with who gets to decide, who has the final say, you or government, meaning, as I stress here, the neighbors acting by pulling official levers against you.
- Equal protection of law is concerned with classifications. Most laws classify and "discriminate." Drive too fast and you get a ticket. The law classifies all who exceed the speed limit as violator, deserving of a citation. Discrimination here means to distinguish one thing from another. In American political parlance it means to act out of racial, ethnic, or religious prejudice. That's not how it's used here. Here we go back to its earlier meaning, to separate for a good reason, or at least a defensible one.
This covers a lot of Con-law.
You can break each of these categories down further and further, ad infiitum. But after you study Con-law for a semester and a half, this is where you are.
Later come individual rights such as freedom of conscience and expression, embodied in speech, press, assembly, and petition, the First Amendment.
Then religion: freedom to worship, or not, profess a belief, or not, believe, or not, bow down, or not, pledge, salute, or pray, or not. And freedom not to have government establish, endorse, or promote one religion over another, or any religion, or no religion. It would be enough of government provided an arena for all who wished to exercise their religious rights without shoving same down the throats of those not so inclined, and vice vesa. Nice in principle, difficult to make happen in practice.
Regarding your individual rights, suppose your neighbor gets up a petition among the other neighbors, presents it to you condominium association and asks it to enact a regulation prohibiting what the neighbor knows you like to do and with whom.
The condominium association is your local government. It tells you not to make noise and disturb your neighbors. Why can't it regulate your bedroom activity?
Because we have this notion that we each have a zone of privacy that should not be invaded by others, especially the neighbors. Does this change because the neighbors have succeeded in getting government to do what they might not be able to do themselves? Can the police now peer between your drapes to see who your intimate friends are? And how you sleep with them?
Has anything changed by switching the invasion of your privacy from a private actor to a government agent?
I find it useful, or at least though-provoking, and a way of simplifying the law of privacy, by viewing government as the long-noses of my neighbors writ large.
The French have a bad reputation for having looong noses, in the sense that they need to know what the neighbors are doing, even when it's none of their business. This is what I've read. I don't know if it's exactly true, but I think it might be true. Let's assume the notion has a basis in fact.
I've read that the police will visit you, if you decide to settle in France, if they suspect you may not be who you say you are. If you're a journalist or writer, this may be a cover for your being a spy.
First the neighbors, and then the police will be wondering about you. Even if you haven't done anything but travel and write. There's this paranoia, based on centuries of plotting against Napoleon or the monarch. Louis XVI lost his head, remember. There were plots against Napoleon. Even paranoiacs may have someone following them.
Let's say we don't want to encourage that sort of prying here. So we emphasize our need for protection against nosy neighbors. This is the basis of our laws protecting privacy. In 1898, attorney Louis Brandeis's law partner threw a private party. A Boston newspaper wrote it up. The partner became upset over having his privacy, and that of his guests, invaded. He and Brandeis wrote up a law review article protesting the invasion of privacy. It became a seminal document in the establishment of the right over the next several generations.
When Brandeis became a Supreme Court justice, he wrote a dissent in a wiretapping case in which government eavesdropping, wiretapping, of criminal suspects, without a search warrant, was upheld against a 4th Amendment objection. Brandeis objected that everyone has a right "to be let alone." This is what the right of privacy means.
Justice William O. Douglas, in Griswold v. Connecticut (1965) expanded on the privacy right, saying this liberty extended to the use of birth control.
In 1973, the privacy right was extended, in Roe v. Wade, to a woman's right to have an abortion on demand to protect her life or health or just because she did not wish to become a mother, or to become a mother again, or to raise this child.
In 2003, the privacy right, or liberty, was extended yet again, in Lawrence v. Texas, to shut government out of bedrooms where the issue was relating to another consenting adult regardless of gender. In short, the U.S. Supreme Court upheld your right to have sex with the consenting adult of your choice.
You could now choose your own friends and your neighbors had to keep their long noses out of your private business. Nor could your neighbors improve their chances by enlisting the support of enough votes on your condominium association, city or county council, state legislature, or federal Congress. The Constitution now has you covered.
Your mom might not like what you do and who you do it with, nor your church or its minister, but you now have the Constitutional right to tell your neighbors, your government, and the police, to fuck off when it comes to the above.
You now, as an adult, have the final power to decide who will be your friends and how you will relate to each other. You have final say. The decision is yours. You have sovereignty, individual supremacy, over your own friendship choices, not government, when it comes to your intimate relationships.
This doesn't mean you can join a gang and commit crimes. We're discussing bedroom activity, essentially, not something else, which is plenty.
What I've done here, I hope, is to demonstrate the power of a metaphor. I'm suggesting that government is no more than a group of your neighbors who have gotten together to tell you how to live, how to lead your life.
You mean my neighbors can tell me how to lead my life?
Isn't that what they're doing when they tell you, through government, not to drive too fast? Not to harm one another, otherwise you may wind up in prison?
Don't we uphold this principle every day in our courts?
I think we do.
But I also think that it shines a new light on what government does, and what it has a right to do, or should do, to consider it as just the neighbors with their usual long noses, sometimes justified, and sometimes not.
If you come across someone else who has said this, I'd be interested in knowing who.
TIA.