March 31, 2004
Can't All Be Poets
by Nick Morgan
March 31, 2004 01:16 PM
Since it appears to be the season to quote caselaw for its own sake (very funny, go read), I thought I'd point out what I consider to be a failure of inspired judicial discourse. Don't get me wrong--I love a good passage full of colorful musings and lyrical contemplations of justice and liberty, but this had me grimacing:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics [etc.]
From Justice Jackson, in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). I've been in law school nearly two years now--but no one bothered to tell me we have a constitutional constellation. And that some of the stars apparently swirl about, or something.
Jackson was a master of colorful language and pragmatic jurisprudence.
Perhaps the "constitutional constellation" can be found somewhere in the "zone of twilight," cf. Youngstown Sheet & Tube.
I have a feeling that finding the constitutional constellation within the zone of twilight requires some kind of psychedelic substance. Even then, it may be a difficult task.
Whattaya want... he was a prosecutor. Jackson couldn't help himself. ;-)
Well, where do you think penumbras come from?
Penumbras come from the 9th Amendment. Postulates come from the 10th Amendment.
met·a·phor /'me-t&-"for also -f&r/ noun; Middle French or Latin; Middle French metaphore, from Latin metaphora, from Greek, from metapherein to transfer, from meta- + pherein to bear 1 : a figure of speech in which a word or phrase literally denoting one kind of object or idea is used in place of another to suggest a likeness or analogy between them (as in drowning in money); broadly : figurative language
"Penumbras come from the 9th Amendment."
Well, I thought they came from eclipses. Silly me.
My point is--and I think your response displays it--that we readily use some terms from astronomy in law without question (e.g. penumbras and umbras), apparently to the point that some people only know the terms' legal meanings, but using some other terms results in ridicule.
I know your post was tongue-in-cheek so what my response displays is that I was being even cheekier and not to display my Galileo-like knowledge of Con Law.
I just always got a kick out of how some conservative Justices go nuts over liberal Justices using the penumbras of the 9th Amendment while -- if you look in some of the sovereign immunity cases -- conservatives really on "postulates" from the 10th Amendment.
One man's penumbra is another's postulate.
Polaris, the north star, is fixed - it's north.
The other stars seem to whirl around it once a night. Pardon my eurocentrism, see also southern cross. barnette's an important case, for the holding. i don't care how they express it, dactyls, whatever.