Superlatives & the Constitutional Text
ricenter at igc.org
ricenter at igc.org
Wed Sep 6 07:30:57 PDT 2006
I wish to thank Prof. Volokh for his reference to the Bartleby webpage. That cleared up my question on "more perfect."
I also probably agree with him that "supreme" best fits the Supreme Court's role. I still wonder about why the Framers did not borrow the "final and conclusive" language from the Articles of Confederation used to describe federal court competence under the Articles instead of "supreme." And, I don't agree with Prof. Finkleman's claim that “no court can overrule the Supreme Court.” I definitely think that the Supreme Court can be overruled by, e.g., the ICJ in a case involving the same parties. Unlike the Constitution, the ICJ Statute explicitly says that its “judgment is final and without appeal.” ICJ Statute, art. 60. If the Supremacy Clause cannot be construed to allow for the ICJ’s judgments being final and non-appealable, then the U.S. could not be a state-party to the UN Charter because states-parties to the UN Charter become ipso facto parties to the ICJ Statute. UN Charter, art. 93.
Francisco Forrest Martin
-----Original Message-----
>From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>Sent: Sep 5, 2006 11:15 PM
>To: conlawprof at lists.ucla.edu
>Subject: RE: Superlatives & the Constitutional Text
>
>Francisco Forrest Martin writes:
>
>> I don't think that to make "more perfect" is the same as to
>> make "less imperfect." Something is either perfect or
>> imperfect. Making something less imperfect does not make the
>> think perfect and certainly not "more imperfect" -- whatever
>> that means. You can't be more than pregnant.
>
> Well, that's Prof. Martin's usage, and he's certainly entitled
>to adhere to it in his own work. But in the English language as it is
>actually used by educated writers, it's not the case that "something is
>either perfect or imperfect," thus excluding the possibility of relative
>perfection. Just as you can have round things and not round things, but
>also more round things, so you can have things that are more perfect
>than other things. If you prefer to view "more round/perfect" as
>shorthand for "nearer to roundness/perfection," you may, but even if
>that's so, it's an entirely acceptable shorthand in actual educated
>English. (See http://www.bartleby.com/64/C003/0229.html and
>http://www.bartleby.com/64/C001/002.html#ABSOLUTETERM for two of the
>many usage notes from various usage authorities that acknowledge this.)
>
> As to "supreme," when one is looking for one adjective that best
>captures a court's role, one will necessarily have to focus on the
>majority of situations, and not on rather unusual exceptions. The
>Framers apparently contemplated that the Court would the be the court of
>last resort on most important federal issues; that there might have been
>some exceptions might make the term "supreme" a simplification that
>omits some details, but such simplifications are inevitable -- and not
>erroneous -- when you want to compress meaning into one word.
>
> Eugene
>
>> However, I agree about your point about the Constitution,
>> treaties, and U.S. laws being supreme by virtue their
>> relation to state constitutions and state laws. But what
>> about the use of the word "supreme" in "supreme Court." The
>> Supreme Court is not always supreme because Congress can take
>> away its jurisdiction in some cases making the courts of
>> appeal (or even district courts) arguably supreme. Of
>> course, the Supreme Court may take a case over which Congress
>> has not given the Court jurisdiction and decide that it
>> indeed has no jurisdiction, but then it still is not supreme
>> on the merits.
>>
>> I'm just wondering whether the word "supreme" or "perfect"
>> had another meaning in 1789 in the same way that the word
>> "universal" used to only mean "general" and not "whole."
>>
>> Does anybody know?
>>
>> Francisco Forrest Martin
>>
>> -----Original Message-----
>> >From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>> >Sent: Sep 5, 2006 6:36 PM
>> >To: conlawprof at lists.ucla.edu
>> >Subject: RE: Superlatives & the Constitutional Text
>> >
>> >I agree with Paul here: There's nothing linguistic or logically
>> >incorrect here unless one introduces some made-up rule that (for
>> >instance) one can't use a superlative with certain
>> adjectives such as
>> >"perfect," "round," and the like. And if one does introduce such a
>> >rule, then it seems to me that the rule itself is what's
>> incorrect --
>> >it pronounces, without adequate justification beyond a rough
>> sense of
>> >logic, a rule that is inconsistent with English the way
>> educated users
>> >actually use it. The one thing that might support such a
>> rule is that
>> >rough sense of logic, but the life of the language has not
>> been logic
>> >but experience; "it's illogical to say more perfect" is no
>> sounder than
>> >"it's illogical to say 'ice cream' rather than 'iced cream'" (a real
>> >usage controversy circa 1900, incidentally).
>> >
>> >> -----Original Message-----
>> >> From: conlawprof-bounces at lists.ucla.edu
>> >> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Paul
>> >> Finkelman
>> >> Sent: Tuesday, September 05, 2006 10:36 AM
>> >> To: ricenter at igc.org; conlawprof at lists.ucla.edu
>> >> Subject: Re: Superlatives & the Constitutional Text
>> >>
>> >> by More perfect they meant that they Union was current
>> "imperfect" so
>> >> they would make it "less imperfect" which would be "more perfect."
>> >> seems to be a pretty obvious use of language to me.
>> >>
>> >> Same with "surpeme law" since it is in relation to the states; the
>> >> states must defer to all three kinds of law.
>> >>
>> >> Paul Finkelman
>> >>
>> >> Paul Finkelman
>> >> President William McKinley Distinguished Professor of Law
>> >> and Public Policy
>> >> Albany Law School
>> >> 80 New Scotland Avenue
>> >> Albany, New York 12208-3494
>> >>
>> >> 518-445-3386
>> >> pfink at albanylaw.edu
>> >>
>> >> >>> <ricenter at igc.org> 9/5/2006 11:59:53 AM >>>
>> >> Does anyone have any thoughts on why the drafters sometimes used
>> >> superlative language incorrectly? For example, how can the
>> >> Constitution, treaties, and federal statutes ALL be
>> supreme law? How
>> >> can the Constitution establish a MORE perfect union?
>> >>
>> >> Just curious.
>> >>
>> >> Francisco Forrest Martin
>> >>
>> >>
>> >>
>> >> -----Original Message-----
>> >> From: Douglas Laycock
>> >> Sent: Sep 5, 2006 11:28 AM
>> >> To: conlawprof at lists.ucla.edu
>> >> Subject: RE: Could Washington have become king or dictator?
>> >>
>> >>
>> >> It's hard to believe there was any support for a monarchy
>> >> sufficiently rational that considerations like this would have
>> >> mattered. The lessons they drew from the colonial experience were
>> >> that kings were bad and even centralized governments were
>> bad. The
>> >> way for Washington to have become a dictator, if it were
>> possible at
>> >> all, would have been to seize power and offer order and
>> security in a
>> >> period of chaos, perhaps during the war, perhaps during
>> the failure
>> >> of the Articles of Confederation.
>> >> Quoting Judith Baer <JBAER at politics.tamu.edu>:
>> >>
>> >> > 4) he had no immediate heir, which would certainly complicate any
>> >> talk of
>> >> > monarchy.
>> >> >
>> >> > Bruce
>> >> >
>> >> >
>> >> > Years ago--I know not where--I read something that suggested that
>> >> support
>> >> > for a hereditary monarchy was weakened by the fact that 3 of the
>> >> first 4
>> >> > presidents had no son. This explanation does assume that
>> Jefferson
>> >> and
>> >> > Madison were widely recognized as potential presidents in
>> >> 1787, which
>> >> seems
>> >> > plausible in hindsight. It gave me pause; I couldn't help
>> >> thinking of
>> >> the
>> >> > exception and the future of his son.
>> >> >
>> >> > Judy Baer
>> >> >
>> >>
>> >>
>> >> Douglas Laycock
>> >> University of Michigan Law School
>> >> 625 S. State St.
>> >> Ann Arbor, MI 48109-1215
>> >> 734-647-9713
>> >> _______________________________________________
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>_______________________________________________
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