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Conservative judges like to say that they’re not activists; they defer to the legislator. Their interest is legal, political, and social conservation: preserving the will of the people. Yet the career of Antonin Scalia, who died on February 13, demonstrates that the most conservative judges are spectacularly more disruptive, to use the modern jargon, than any “social engineer” from the judicial left.
Consider Scalia’s most notorious judgment, District of Columbia v. Heller . His biographer, Bruce Allen Murphy, tells us that Scalia J. considered this opinion, for a five-to-four majority, his “judicial magnum opus.” To stem rampant gun crime, the district had amended its Firearms Control Regulation Act to ban handguns from its jurisdiction. D.C. resident Dick Heller objected, tasking the U.S. Supreme Court with interpreting the Second Amendment to the U.S. 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.” Any reasonable, grammatical reading of this provision takes the second clause as dependent on the first. A middle school student of average intelligence would read the amendment to say that, to protect their democratic interests, Americans have a constitutional right to an armed militia.
Scalia J., however, was an ardent gun enthusiast and hunter, and his trademark “original meaning” approach to jurisprudence worked – in its literally conservative way – backwards. You choose the result you want, then scour dictionaries, legislation, and law treatises of the legislation’s era to cobble together bits and bobs that support your reading, on the bizarre pretext that this demonstrates how voters would understand the statute. Here, Scalia J. said the business about the militia was simply a “prefatory” clause, and the subsequent “operative clause” did not depend on it. The militia was just one reason Americans could keep and bear arms. The right was unqualified, never mind how reckless that would have seemed in 1791, when the amendment took effect, let alone how lunatic it is in an age of Kalashnikovs and rocket-launchers.
This is not to say that looking to the original understanding of legislation – and particularly of a constitution – is unhelpful. Such an approach is an important tool in statutory interpretation, and when used dispassionately, without an agenda, it really can help curb judicial ADHD amid the fruit of the living constitutional tree. Conservative activism such as Scalia’s, however, can be at least as pernicious: it tends to stunt the tree in a sort of zombie state, a living death.
Musicology provides an interesting case study of this. In their 1991 essay “Law, Music and Other Performing Arts,” J. M. Balkin and Sanford Levinson do not mention Scalia J., and refer only in passing to “originalist” jurisprudence, but they use Beethoven’s first piano concerto to illustrate similarities between interpreting law and interpreting music. The pianist Charles Rosen, they explain, has argued that a particular note in the concerto should be an F-sharp, even though Beethoven has written it as an F-natural. The piano was evolving in Beethoven’s time, but when he composed the piece there was no higher note on the keyboard than the F-natural. “To be sure,” the authors write,
Beethoven might have written “aspirationally” and composed what, though impossible under current [i.e., existing] conditions, could nonetheless be aspired to under some future imagined state. Thus Rosen writes of a piano sonata in which Beethoven “asks for a successive crescendo and diminuendo on a single sustained note,” even though “the instrument that can realize this has not yet been invented.” But at least this suggests that Beethoven was capable of envisioning the possibility of radical transformation regarding piano design and wanted to signify an intention should those possibilities ever be realized. What, then, does the performer do with the F-natural, where Beethoven appears instead to have acquiesced to the limits of the instrument?
…[T]he expansion of the keyboard happened only shortly after the composition of the first concerto; high F-sharps soon were available to both composers and performers, as exemplified by Beethoven’s own use of this note in a number of subsequent compositions, including … a cadenza meant to be performed as part of the first concerto. He did not, however, return to the initial composition and physically change the notation of the earlier F-natural, in spite of an announced intention, in Rosen’s words, “of revising his early works in order to make use of the extended range.” What, then, is a performer to do when she comes to the measure in question? Should she feel bound by the “plain meaning” of the written score, which displays the F-natural, or ignore it and play what Rosen, a gifted pianist, calls the “obviously” preferable F-sharp?
A true originalist would say that if the performer is interested in an “authentic” performance, the answer is clear. Once the expanded keyboard was available, Beethoven wrote music using the F-sharp, including a cadenza for the concerto in question. He likely added the note to older works, but not to this concerto. Therefore, a performer acting “legally” should play the F-natural, not what sounds “better” to her modern ear. While the higher note might “do justice” to the piece and its modern audience, such justice ultimately is the domain of the larger public – the commonwealth of serious scholars, musicians, and listeners, not the individual interpreter. This is true originalism, as contrasted with dictatorial political activism disguised as conservative respect for democratic principles, twisting interpretation to a desired end. Aspirational justice is a matter of evolution for the legislator and the people, building consensus, working with the constitution as a living document, singing with the times.
(Parts of this essay originally appeared in my column in The Lawyers Weekly)
Colloquialisms in a legal context can give the translator at least as much trouble as legalese. In 2001 I was called upon to translate some material dealing with trademark infringement and the famous remark by Justice Foster of the English Court of Chancery: “Only a moron in a hurry would be misled” so as to confuse a tabloid called the Daily Star – featuring lurid sex scandals, murders, and topless crumpets on page three – with the Morning Star published by the plaintiff.(1) The Morning Star was a communist political tract and had recently changed its name from the more notorious Daily Worker. As the translation involved a general discussion of this unattractive arriviste among legal fictions, I was obliged to render not only “a moron in a hurry” into credible legal French, but also “a moron in a hurry in a dimly-lighted room,” in homage to our dim-witted hero’s later appearance in a forgery prosecution. When the defence there said that only a moron in a hurry would have been fooled by the forgery, the Crown asked, “Yes, but what about a moron in a hurry in a dimly-lighted room?”
How to proceed as translator? Well, you review the French you know for “moron.” You don’t want the clinical sense, because what Justice Foster means is not really “moron,” psychometrically, or “idiot,” or even “fool,” but something more like “numbskull,” “scatterbrain.” I had a Frenchism in mind which I particularly like, but I looked in my dictionaries to make sure. I got another technical term: crétin.
I tried an old translation program I once bought on a lark, and that’s really all it’s good for. It gave me idiot for “moron,” and for his sojourn in the finster, “Un idiot à la hâte dans une [dimly-lighted] salle.” This wasn’t bad really, but it just couldn’t handle “dimly-lighted.” In fact, the much-more modern Altavista translation utility on the Internet did worse: un moron dans une hâte dans faible–allumée une salle. Never mind the word choice, even the word order and grammar were wrong. And when I asked it to translate back un moron dans une hâte it gave me “a moron in a haste.”
The Web’s WorldLingo (note that this was 2001) at least got the word order: un moron dans une hâte dans une salle faible-allumée. But I turned back to my own translation, confident that no machine could come close to replacing subtle little me. And I went with my first choice: “un con pressé” en sortant à la hâte d’une salle faiblement illuminée.
The machines had missed the point that “moron in a hurry” needed quotation marks to show the irony. They had missed the idea that he was rushing through (en sortant de) the room, and that the room wasn’t made weak with light but lighted dimly (not faible, the adjective, but faiblement, the adverb). But it must be said that, at least on the evidence of this small test, Google Translate has advanced machine translation. When, in mid-2013 I fed it our moron in the finster, it immediately regurgitated, “un crétin pressé dans une pièce faiblement éclairée.” While this human translator believes that crétin remains inexact (in a sense, too colloquial and slangy), the adverb problem was solved, and arguably éclairée is better than illuminée, although mal éclairée might be better French than either.
Best of all, I got to use the colloquial con, a term francophones reserve for real twits – someone who, according to my British-French dictionary (which I use partly because it makes life even more interesting), is really “bloody stupid,” sort of like machine translations. Yet I remained concerned that, like bloody to some British minds, con might have retained its historic baseness, having derived, according to Le Petit Robert, from Latin cunnus, with the primary meaning, “the female sexual organs” – more precisely translated c-nt. But Robert adds that, “familiarly,” the word has meant “imbecile, idiot,” in the non-clinical, insulting sense, since at least 1790. Then, too, around the time I was struggling with this translation, a friend who had a master’s degree in French literature jokingly labelled something I’d said as con. She was a prim homemaker, and the third party in the conversation was a very intelligent if plain-spoken French teacher from Paris. I was hurt, but also the only one present who flinched. No one seemed to be calling me “the c word.” But the logomachy did not end there.
When I wrote about this private, possibly con, struggle in my column in The Lawyers Weekly, a reader assured me that, indeed, only “the vulgar” used con to indicate a stupid or idiotic individual. In a very nice note, it must be said, he explained that he had bachelor’s degrees from Lycée Mignet in Aix-en-Provence and Cambridge (in French), and a master’s degree in comparative literature. He had lived in France for two years, but admitted he hadn’t been there for twenty. Still, “I know for sure that con… means literally c-nt, and, I think, would not be used outside of a locker room by anyone of education, certainly not a judge in a court.” Which, as I say, was fair enough, and is a good indication that according to their sensibilities, age, geography, and experience, reasonable translators will differ.
Indeed, three years earlier, the salient word – meaning “nitwit,” “nerd” in this case – was even featured in one of the year’s most popular films worldwide: Le dîner des cons (“The Dinner Game”). It was perhaps no answer to my anxious reader that the delightful (if nerdy) M. Pignon was the polar opposite of a c-nt, and that Georges Brassens (by then deceased) had been publicly performing what became the movie’s title song from about 1960, including this in the chorus(2):
Le temps ne fait rien à l’affaire. Time has nothing to do with it all.
Quand on est con, on est con! When you’re a con, you’re a con.
Qu’on ait 20 ans, qu’on soit grand-père Whether you’re twenty or an old grandpa,
Quand on est con, on est con! When you’re a con, you’re a con.
Entre vous plus de controverses, Enough of arguing again and again,
Cons caduques ou cons débutants. Clapped-out cons or rookie cons
Petits cons de la dernière averse Little cons of the latest rain,
Vieux cons des neiges d’antan. Old cons from the snows of yesteryear.
Not counting the repetition of the chorus, the word con occurs thirteen times in the song. Notice that, while I’ve tried to preserve the chorus’s rhyme scheme (more or less), I’ve left con untranslated, a choice I made given that I already have explained at length the various ambiguities at work. Again, it’s a matter of context, and, you, reader, now have sufficient information to make up your own mind about what Brassens means to say.
As a complete defence, at last, I rely absolutely on what M. A. Screech writes in his “A Note on the Translation” of his breathtaking rendering of Gargantua and Pantagruel (2006). As to “c-nt and con: conneries (“c-nteries”) is a word accepted in elegant French parliamentary debates or in a polished broadcast.”(3)
(1) Morning Star Co-Operative Society Ltd. v. Express Newspapers Ltd.,  F.S.R. 113. For a fuller discussion of this case, see my Where There’s Life, There’s Lawsuits: Not Altogether Serious Ruminations on Law and Life (Toronto: ECW Press, 2003). My working title for this book was, in fact, The Moron in a Hurry, but my publisher plumped (wisely, I now think) for a subheading in the manuscript, referring to trademark litigation by the Anheuser-Busch brewery, makers of Budweiser beer, over the slogan, “Where there’s life, there’s Bud.”
(2) From “Les trompettes de la renomée,” 1961.
(3) Rabelais, Gargantua and Pantagruel, trans. M.A. Screech (London: Penguin, 2006), xlv.
The recent death of Harper Lee propels me to share some thoughts about her famous fictional lawyer, Atticus Finch, in the context of that insistent legal fiction, the reasonable person of the law reports.
Notoriously and deliberately, the RP is “an excellent if odious creature.” Setting the standard we must strive for to avoid negligence or other unlawfulness, he is of our world if woodenly complacent, imperfect but somehow always doing the right thing. While a classic standard-bearer, he is no Archimedes, so deep in ingenious mathematical reverie that he fails to notice that he is about to be slaughtered by the Romans as they take Syracuse. Rather, he “invariably looks where he is going … [and] neither star-gazes nor is lost in meditation when approaching trap-doors or the margin of a dock.” He is the man on the Clapham omnibus (where he prudently pays the exact fare with all available discounts), but never boards it while it “is in motion,” and even “will inform himself of the history and habits of a dog before administering a caress.”(2)
As standards of reasonableness go, this is a dated and in some ways sorry compromise – cautious, even fearful, but not genuinely excellent.(3) What is legally reasonable does not reflect the relative level of technological and material advancement in the “developed” world, nor the cultural diversity of modern western societies. While more people than ever might be able to read and type, signs of cultural literacy and progress toward comprehensive justice seem commensurately depressed. (Consider the Donald Trump and gun culture phenomena of today’s United States. To paraphrase the novelist Peter DeVries, the fact that so many people can read and write seems the major cause of mass illiteracy.) The really reasonable person, in other words, is arguably an old granola who walks as lightly as possible across the earth singing “Give Peace a Chance” – a new and improved throwback who looks both hindwards and ahead, a nostalgic paradox. Rather than ride the Clapham omnibus to the office (as the old legal characterization has it), or even an electric “smart car,” she probably commutes on a recycled comfort bike and brings her own vegan sandwiches on multi-grain bread, with an organic apple for dessert. She is, in other words, Eve-like, empathetic (if not all that more sympathetic than her law report iteration) but no luddite (Google and LinkedIn are her friends), deliberate and caring like the Eve we see in Paradise Lost, an inquisitive, conscientious neighbour, a phrase I deliberately adopt from the neighbour principle of negligence law, whereby the reasonable person is commanded to follow the community-minded principles of Mosaic law, and more particularly the compassionate behaviour of the Jesus’s Samaritan on the road to Jericho.(4) Were it not for the religious connotation, she would be a tzadik, a word deriving from the Hebrew tzedek for “justice,” to describe those who are righteous and reflexively charitable (“charity,” tzedaka, recall, itself derives from tzedek). The pastoral meets advanced civilization, each complementing the other.
If we can fly to the moon and Mars, not to mention to France in three hours, eradicate polio, and invent smartphones, the old Clapham-omnibus standard insults our potential, asking too little of us in our social life and our personhood. It never transcends the material. In civil law we have moved far beyond mere property interests, with a growing concentration on individual interests, and in the arena of constitutional law, we are impelled into pluralism. A new legal fiction, with more demanding standards of duty and reasonableness, seems necessary, a new, improved reasonable person as our empathic, engaged inspiration and standard-bearer for perfected justice. Like the reasonable man or “good mother of the family,” she still “takes the magazines” and newspapers “at home” (or at least reads them on-line, and “in the evenings pushes the lawnmower in [her] shirtsleeves”(5), but she also reads the books and blog postings, and occasionally listens to public radio – while admitting that for large swaths of parkland a petroleum-powered mower is more reasonable than human-powered, albeit bio-fuelled groundskeeping would be best.
There is precedent for such evolution, after all; until the reasonable man became a person, “at Common Law a reasonable woman [did] not exist.”(6)
Though this might sound facetious, it is about as serious as we can get. More fundamentalist and demanding yet simultaneously more liberal than the reasonable person of the law reports, the really reasonable person is a practical idealist with a keen but not overweening sense of social duty, the neighbour who never, or at least very rarely, says never. While she inculcates the highest achievements of our civilization, she is no magnate or political leader, but, rather, she is that imperfect, ordinary person of sound judgment and sense whom we seek to emulate. (She is too sensible to be a captain of industry or prime minister.) Obliviously, she seeks to bridge the gap between law and justice. While she perhaps does not ride a bike everywhere and perhaps finds organic too dear (except when it’s on special), she resists, or even breaks, an unjust law.
In an interview about halfway through his second term, Barak Obama sounded very like such a conscientious neighbor:
I have strengths and I have weaknesses, like every president, like every person. I do think one of my strengths is temperament. I am comfortable with complexity, and I think I’m pretty good at keeping my moral compass while recognizing that I am a product of original sin.(7) And every morning and every night I’m taking measure of my actions against the options and possibilities available to me, understanding that there are going to be mistakes that I make and my team makes and that America makes; understanding that there are going to be limits to the good we can do and the bad that we can prevent, and that there’s going to be tragedy out there and, by occupying this office, I am part of that tragedy occasionally, but that if I am doing my very best and basing my decisions on the core values and ideals that I was brought up with and that I think are pretty consistent with those of most Americans, that at the end of the day things will be better rather than worse. …
And we’re on this planet a pretty short time, so that we cannot remake the world entirely during this little stretch we have. But I think our decisions matter. … [A]t the end of the day we’re part of a long-running story. We just try to get our paragraph right.(8)
Were Obama not the president of the United States, by this description he would make an excellent objective correlative for our new legal fiction, perhaps in tandem with his wife, Michelle, to complete the yin and yang of the business – Barack and Michele a few years after law school, say.
What does Atticus Finch, the compassionate lawyer of To Kill a Mockingbird, have to do with this? At first blush I imagined that he could serve as the modern exemplar of this new reasonable person, a fictional compassionate man as improved legal fiction. And while I think that it is simplistic, and perhaps grievance mongering, to use Harper Lee’s death as an occasion to complain that Finch’s popularity is another imposition of a “white viewpoint” on racism, Finch is a conscientious neighbour of his time and town (an evolving, reasonable sensibility, which is precisely the point of Mockingbird), not the conscientious neighbour of the 2016 global village. If we mean to be modern as we jet around the planet, we need to be at least as interested in empathy as we are in technology, sport, and entertainment. If we mean to be civilized, our enthusiasm for evolved justice must outstrip our enthusiasm for the material.
(1) These ideas grow out of my work on justice as nostalgia – see the Justice page
(2) A.P. Herbert, “Fardel v. Potts,” Uncommon Law (London: Methuen, 1935) 1 at 3.
(3) Jeffrey Miller, The Structures of Law and Literature (Monreal: McGill-Queen’s U. Press, 2013) at 165-72 and passim, where the typology and standard are discussed in greater length.
(4) Ibid. at 65-114.
(5) Stansbie v. Troman  L.J.N.C.C.R., 137.
(6) Robert Megarry, Miscellany-at-Law (London: Stevens & Sons, 1955), at 261.
(7) As Obama is demonstratively Christian, we cannot assume that he means this metaphorically, but for our purposes we shall.
(8) The New Yorker, Jan. 27, 2014, 40-61 at 61. The interviewer is the magazine’s editor-in-chief, David Remnick.