२४ मार्च, २०१८

"The great Body of the People in every Free Government, must always be considered as the Husband of the Constitution thereof, and..."

"... consequently that as long as such Constitution performs the duties of Love Honor and Obedience to Her great Constituent Body, or Political Husband, She is entitled to be Kept both in sickness and in Health, with all possible Love and Fidelity by such her said Husband and that on a breach of her Duty she must expect to incur the Pains and Penalties of Divorce.”

So said William Stuart to Griffith Evans, in the debate about whether to ratify the Constitution. New York, 11 July 1788 (CC Vol. 6, p. 258).  I found that at "Constitutional Metaphors, Similes, and Analogies" at the UW's Center for the Study of the American Constitution, where there are many other fascinating metaphors, all from the debates about ratification.

But are there any metaphors in the text of the Constitution?

The question occurred to me as I was reading the comments to the post about the Seventh Circuit case rejecting an Establishment Clause challenge to a public school "Christmas Spectacular" concert. I happened to mention the metaphor of the wall that should, it is sometimes said, separate church and state. Someone appeared to observe that the constitutional text makes no mention of any wall, and it occurred to me that we really don't want any metaphor in the Constitution or in any other legally operable text.

Is there even one metaphor in the Constitution? All I could think of is "no Attainder of Treason shall work Corruption of Blood" (in Article III). "Blood" refers to a person's descendants. But that scarcely counts as a metaphor. The use of the word "blood" like that goes all the way back to Old English. You might as well consider a metaphor to use "house" for the houses of Congress.

Metaphor is fine in arguments and explanations, so I think it's fine to say "wall of separation" if you want to speak of a strict interpretation of the Establishment Clause. Its absence from the Constitution doesn't mean that the strict interpretation is wrong, only that you don't put metaphors in a constitution.

But how do you like that William Stuart metaphor? The people are the husband and the Constitution is the wife and the Constitution must love, honor, and obey the people.

३३ टिप्पण्या:

Luke Lea म्हणाले...

I don't like the idea of divorce. Last night at poker, one of the guys, an old liberal, said he wouldn't mind a coup against Trump. I said I hope you're not serious. We're talking law and order. He didn't say anything back.

cubanbob म्हणाले...

It appears the Husband has been abusing the Wife for a number of years.

BarrySanders20 म्हणाले...

Ah did not have text with that woman . . .

Bill prefers his metaphorical woman loose, but in real life he got a strict one.

It’s a bad analogy anyway.

Quayle म्हणाले...

Lotta people sitting around these days waiting for the Constitution to fix them a sandwich.

TerriW म्हणाले...

Blood used for person is a nice example of synecdoche.

MikeD म्हणाले...

Reason number infinity for why I'm addicted to Althouse's blogging. However, gotta admit I'm disappointed in the tenure of previous comments. That said, I too, on occasion, have traveled the supercilious road of commenting without regret.

Zach म्हणाले...

But are there any metaphors in the text of the Constitution?

"Judge Bork: ... I do not think you can use the ninth
amendment unless you know something of what it means.
For example, if you had an amendment that says "Congress
shall make no" and then there is an inkblot and you cannot
read the rest of it and that is the only copy you have, I do
not think the court can make up what might be under the
inkblot if you cannot read it."

Apologies... I thought you were asking for metaphors *about* the text of the Constitution.

mockturtle म्हणाले...

I would prefer it the other way around.

chickelit म्हणाले...

But how do you like that William Stuart metaphor? The people are the husband and the Constitution is the wife and if the Constitution must love, honor, and obey the people.

Trump has a stormy relationship with the Constitution.

Sprezzatura म्हणाले...

I think more biblically re metaphors. Taking the fifth seriously means that the kids better STFU and let the geezers do what they will. The Constitution is like kids.


IMHO.

Sprezzatura म्हणाले...

"Trump has a stormy relationship with the Constitution."

Re who rides whom: Stormy Cain flips the script.



Just sayin'

Sprezzatura म्हणाले...

Crain, not Cain.

Sprezzatura म्हणाले...

I'm sooooo biblical.


traditionalguy म्हणाले...

So Honest Abe and the Thaddeus Stephen's Radical Republicans were wife abusers. That metaphor works.

rhhardin म्हणाले...

Metaphors carry pregnancies.

Josephbleau म्हणाले...

Amendment is the remedy. Divorce is applied to political overlords.

JackWayne म्हणाले...

As a metaphor, defined as: a figure of speech in which a word or phrase is applied to an object or action to which it is not literally applicable,
or a thing regarded as representative or symbolic of something else, especially something abstract, Stuart’s metaphor is badly formed. He assigns volition to the Constitution and it’s similar to saying that “violence broke out”. The Constitution is like a gun - it only does something g when a person uses it. A Constitution cannot perform a duty. He must have been a friend of Hamilton’s: a person with an idiotic way with words.

robother म्हणाले...

Let those among us who have not cheated on the Constitution cast the first stone. (Personally, I flirted with Trotsky communism in college.) But I'm not ready to dump the old gal just yet.

Quayle म्हणाले...

Good evening ladies and germs.

You know some laws do the strangest things. Take, for example, my constitution. Please! Please! Take my constitution!

Thank you ladies and gentlemen, you’re very gracious. We’ll be here through Thursday night.

PJ म्हणाले...

I think it’s a terrible metaphor. The Constitution owes no duty of obedience to the People and indeed is more often duty bound to defy them than to yield to them. The Constitution has a prenup under which it is fully entitled to ignore the temporary passions of its spouse entirely and must bend to the People’s will only after the People have completed prolonged and onerous rituals. The part of the metaphor that contemplates divorce is perhaps more apt, except that the People do not have the option of living single after such a divorce; if they divorce their Constitution they must immediately wed another or else descend into Anarchy and cease to be a People at all. And have you talked to the Peoples who’ve been married to some of those other Constitutions?

chickelit म्हणाले...

anti-de Sitter space said...Re who rides whom: Stormy Crain flips the script.

I had to google "Stormy Craine."

Nada

Lol

tim maguire म्हणाले...

I don't see how it could work as a metaphor since the constituion, not being a living thing, cannot be disloyal or inconstant. It is what it is. I assume he means we can get rid of it if it stops being useful or helpful, but those aren't traditional grounds for divorce.

tim maguire म्हणाले...

Meanwhile, the people who point out that "wall of separation" doesn't appear in the constitution want us to believe that is some made up thing by some obnoxious atheist. In reality, it was coined by Thomas Jefferson, one of the writers of the constitution, and he wrote it to explain what the first amendment was intended to do.

The first amendment was intended, say the people who actually wrote it, to act as a wall of seperation between church and state.

Ralph L म्हणाले...

In 1788, free governments were even rarer than divorces, and the metaphor must have had a very different meaning to them. Plenty of unhappy marriages (and "natural" children), though.

Sprezzatura म्हणाले...

Chick,

That's the name used for horse riding stuff.

https://www.youtube.com/watch?v=HL3c8aqmSjk

Qwinn म्हणाले...

Tim, sure, but Jefferson wrote it to Baptists who were afraid the government was going to intrude on their religion, not the other way around.

And given that the first act of Congress, ever, was to buy bibles for every public school, not to mention a bazillion quotes from the Founders, what's your evidence that it was meant to keep the government utterly secular?

I am agnostic, btw.

Qwinn म्हणाले...

Robother: I sometimes think I am the only actual "life long conservative" that I know. Never flirted with socialism. Always seemed fascist to me, even as a kid. An ardent fan of the US Constitution since I first read it, and never cheated on her. Probably helped that my family was all Cuban exiles.

So... what exactly am I supposed to be casting the first stone at?

Fernandinande म्हणाले...

Qwinn said...
And given that the first act of Congress, ever, was to buy bibles for every public school,


No, that's wrong.

The first act of Congress was "An Act to Regulate the Time and Manner of Administering Certain Oaths", and, IIRC, there were no public schools until the 1800s.

I am agnostic, btw.

Maybe you'll get over it.

Rusty म्हणाले...

The left likes to treat their wife like a whore. Metaphorically speaking.

tim maguire म्हणाले...

Qwinn, my evidence is the thing itself. Government can take no sides in religious issues. As a practical matter, at the time, that might have meant take no sides among the various christians. But today the same spirit that motivated them then requires more then then mere lack of favorites among christians.

Fernandinande म्हणाले...

Fernandistein said...
IIRC, there were no public schools until the 1800s.


1821.

Michael McNeil म्हणाले...

In reality, it was coined by Thomas Jefferson, one of the writers of the constitution, and he wrote it to explain what the first amendment was intended to do.

Nope. During the drafting of the Constitution Thomas Jefferson was the American minister to France; he was therefore thousands of miles away and took no part at all in the process. Jefferson was involved in the movement towards later adding a Bill of Rights to the Constitution.

MaxedOutMama म्हणाले...

We use metaphors when we talk about the Constitution and our society's relationship and dependence with the Constitution. That's in the public sphere. It's probably appropriate there, as long as some attempt is made to remind ourselves that we are talking ABOUT the Constitution and our feelings about it, rather than precisely defining it.

When we are legally interpreting the Constitution, I don't think the use of anything but the text of the Constitution and previous legal rulings well-grounded in that text are appropriate. Any other approach carries the risk of converting the Constitution itself into a type of metaphor or stereotype instead of a legal template.

Another way of putting this is that we run the risk of letting our feelings about the Constitution, and what we think it should be and imply, become the Constitution itself through judicial fervor. This is the deep worry that some of us feel about current judges at high levels. That's what we think they are doing. We think they have left the land of legal interpretation and entered the land of moral interpretation, which essentially raises religious-like ideas above the legal text. This is terribly dangerous. It would be better if we kept the religion and high-flown moralizing and metaphysics in the churches and philosophy classes and out of the courtrooms.

The judicial establishment, in the main, now believes itself to be some sort of high priesthood. The majority of Main Street now believes the judicial establishment to be a pack of navel-gazing fools.

I vote for Main Street. Wins every time. These endeavors have not worked out in history.