Due Monday, November 12th, in class
Write the Supreme Court decision you would have written in the Dred Scott case
had you been on the Supreme Court at the time.
How to proceed -- I used to read bedtime stories to my children. A friend of mine had what I think is a better idea: each member of the family would take a turn telling a story. One son's first story, composed when he was just 2, was this simple gem: 'Once a time. [pause] Two raccoons. The end.'
What this story lacks in narrative power, character development, and descriptive detail, it makes up in its powerful structure -- a beginning, a middle, an end, each clearly marked off from the other. The kid got right the most important part of telling a story: structure carries the story and so carries the reader through any of the rough spots that may arise in understanding a story.
You are not to write a story, but a decision -- a legal narrative -- but any piece of writing needs a structure. Since you are writing a decision on a set of difficult moral and constitutional problems, and will be trying to resolve the problems, your decision will need to provide reasons for seeing the problem a certain way, for rejecting some solutions and for accepting another. What we do that affects others may cause them harm or do them good, and, at the very least, when we do something that causes harm, we have an obligation to justify what it is that we do. Justification consists in giving reasons that are compelling -- arguments, that is, in which true premises support the conclusion. The need for justification is particularly pressing in Constitutional cases since a decision sets the boundaries of the law for everyone, not just the parties to the case, and since when the decision comes from the Supreme Court, it sets the ultimate boundaries, beyond which there is no appeal -- except back to the Court, if circumstances change enough to make plausible a new case raising the old issue, or to the country, to amend the Constitution.
One way to create structure is to lay out the position you will examine and then determine what your initial response to it is. Take the opposite of that response and give, as §2 of the paper, the strongest argument you can give for the opposite response and then critique it, showing why it will not do. In §3 lay out the solution you propose and provide the strongest arguments you can for it. In §4 consider and answer the objections someone might reasonably raise to your proposal. What, for instance, would the person who holds the position you articulate in §2 have to say about your view? In §5 draw your conclusion, restating the position and briefly recapitulating your view and the reasons for it. Now go back to the position and write an Introduction to it: that is §1.
All this presupposes that your initial response is at least close to being right on, and if it is not or if its opposite is a really stupid choice, the paper will fail to convince anyone. You need to refute the best argument against the most reasonable position one can take if your position is to be supported by that refutation.
Two advantages of this way of proceeding are that you do not waste time trying to figure out how to start the paper and that the parts can be done relatively independently and not all at one sitting -- although the very best of papers will flow well. The reasons for not adopting the alternative you think wrong should lead naturally, for instance, to the alternative you think right.
What sorts of reasons are relevant? If you have
a difficult moral problem, then what are relevant are those reasons that make
a moral difference -- the wrongs and harms we can do to others. It is prima
facie wrong for me to shove you aside if I feel as though you are in my way:
that is not a good resolution of a problem I face in getting somewhere in what
I consider good time. To say it is prima facie wrong is to say that it is wrong
unless some more weighty moral reason justifies doing it. I might shove you
out of the way of a falling piece of masonry as I myself get out of its way.
And when we deal with issues that are legal as well as moral, we have another
set of considerations. Previous decisions by courts and legislative and executive
acts create a body of law that has precedential value: citizens and others have
relied on that body of law in making decisions that can fundamentally afffect
their lives. And so even if we come to think something was wrong with an earlier
judicial or administrative decision or with a piece of legislation, we can just
decide that it is wrong since that decision will harm all those who acted on
the basis of the previous decision or legislation. We instead must weigh the
harm of the mistake against the harm of changing the law to rid it of that mistake,
and we must do so with full knowledge that it is always possible for us to make
mistakes of this sort -- and could even be doing it in changing the law. So
we need to show more than that a mistake has occurred in the law: we need to
show that it is a serious enough mistake to justify being changed.
You will come to see, in reading cases, what sorts of reasons need to be provided, and one of the most powerful features of Chief Justice Taney's decision is his appeal to the ultimate level of justification in constitutional issues, namely, the agreement to form a government under a constitution. We shall find it difficult, I think, to figure out how to trump that sort of appeal or to justify any different sort of resolution than Taney's from having made that appeal. That is one reason the Dred Scott case is so interesting.
But, ultimately, as the deep unembodied voice told Ernie on Sesame Street, who asked when approaching a table whether one opened ones mouth before or after putting food in it, 'You're on your own!' I will not read drafts of papers, but you can form groups if you wish to read each others drafts.
Finding problems with your writing -- Writing is a skill. Like walking and talking, we learn it early enough in our lives that our patterns of construction and choices of words are often not subject to critical control. Think of what it would be like to think about how you walked and so presented yourself to the world. It would take enormous effort, determination, and sustained work to change the very way you moved your body when you walked so as to present yourself differently. Actors might have to learn to do this for roles, first understanding how they move, figuring out how they ought to move in the role in question, and then working to make the changes so that the final product looks natural and untutored. Learning to walk in a languidly elegant way, with the grace and clarity of movement and step of a ballet dancer, would require more than a small grant from the Ministry of Silly Walks. Just so, learning to write an accomplished and polished piece of prose requires assessing how one now writes and then working hard to improve everything about one's style.
But one must first find the problems, and that is rather like trying to see how one walks. Your difficult job is to put yourselves in the shoes of those reading your paper to see if you can figure out how they might go wrong. Then you need to change what might mislead into something less likely to mislead. There are three general areas you should examine:
Meaning -- I overheard someone say, 'There is not a single antique store in Lyons, only one.' Such a sentence presents a problem for those hearing it. How can there not be any antique stores in Lyons when there is one? So, we must ask, 'What did the person mean?' I can only speculate. Perhaps she meant that there is not a single antique store in Lyons proper, but one right outside the town limits. Or perhaps she meant that the one that is in Lyons is not really much of an antique store. Or perhaps she failed to listen to what she was saying and so failed to realize that she had just contradicted herself. Or perhaps she does not know what 'there is not a single one' means.
But hypothesizing about what someone might have meant is not something we should have to do. It is an heuristic ideal to write and communicate so we cannot be misunderstood. This is an ideal not easily if ever reached, but it is an ideal worth striving for. We can certainly avoid presenting our readers with such obvious howlers as 'There is not a single antique store in Lyons, only one.' A person who utters such contradictions is presumed to have a serious 'brain problem,' either in the hardwiring or the software or, alas, both.
Such gems are ubiquitous. Sir Boche Royle, an 18th century British M.P., is said to have uttered the following gems, among others:
'I concluded from the beginning that this would be the end; and I am right, for it is not half over yet.'
'The only thing to prevent what's past is to put a stop to it before it happens.'
'I told you to make one longer than another, and instead you have made one shorter than the other - the opposite.'
'All along the untrodden paths of the future, I can see the footprints of an unseen hand.'
There are few better examples of how utterances can leave us completely baffled about the speaker's meaning.
We all say stupid things from time to time. I once gave an entire lecture on the theory of evolution in Philosophy of Science using as an example the small whales that have evolved to look like seaweed in the Great Reef Barrier off the Australian coast. Alas, not a single student asked for any clarification about these small whales, and it was not until I was driving home and going over my lecture in my head that I myself heard what I had said. I meant to be referring to sea horses, and how I transposed 'sea horses' into 'small whales' is beyond me.
Someone asked me after a bee stung me just below my left eye several summers ago, 'Did it hurt?' I took it the way it was meant, as an expression of concern, not as a serious question about whether my swollen eye was painful. I took it as an expression of concern because I presumed that the person who asked is intelligent and knowledgeable and would know, not having suffered a brain crash or a serious short circuit, that bee stings are painful and that an eye almost swollen shut and red is exceedingly painful. We often say things out of concern or courtesy or for some other reason which we do not mean to be taken seriously, but which can readily be misunderstood. Besides, 'How are you?', asked as a courtesy, and other such humdrum examples, we can find others that are delightfully charming -- and misleading:
You have no doubt all been behind a construction truck that says, 'Construction Vehicle Do not follow.' Now surely we are not to take that sign seriously. If we were, what should we do when we are behind one? Pull off the road? Pull into another lane if we can? But then what if one passes another? Etc., etc.
A woman in New York was getting upset that the line she was in was not moving. 'I have to get my ticket so I can catch the bus.' 'You're in the wrong line. This is for theater tickets. The bus stop is over there.' 'But I can't stand there.' 'Why not?' 'The sign says, "No Standing".'
We assume in the latter example that the speaker was not a native speaker or, at least, not at all used to traffic signs, and so we ought not to hold her responsible. It is unclear what we ought to assume about the sign on construction vehicles. But the lesson is not to depend upon others to figure out what we mean or to correct what we say, but to hear ourselves. We need to learn to hear what we say or write, assess it, and make corrections when we can. No intelligent person ought to say, Rarely is the questioned asked: Is our children learning? And we ought to be at a complete loss to understand someone who says, The recidivism rate for capital punishment is less than 5%.
Remember that a listener or reader has to assume that what is heard or on the paper is what is in your head. If the paper is unclear or confused, that means you were unclear or confused: WYSIWYT (wiz-e-wit -- What you see is what you think)! A reader cannot know whether the confusion in your brain is in the hardware or the software, but whatever the cause, the reader is still unable to understand you and you -- and your message -- will be deemed deficient in a way that may or may not be correctable.
Structure -- Does it have a beginning? 'Once a time.' A middle? 'Two raccoons.' An end? 'The end.' Reading your paper out loud or having a friend read it out loud to you is a good way to proof the structure, content and individual sentences: if something does not sound right to you, it should be changed, and if you cannot follow what you are saying, you can hardly expect a reader to. This advice will work both for the meaning of what you say and for determining whether the paper flows in a comprehensible way.
Spelling -- Run SpellCheck! Misspelling words creates a heavy burden for the reader. Misspellings cause the reader to stop to figure out what must be meant and then back up and start the sentence, paragraph, or page again to be sure of the meaning. Imagine getting two or three misspellings a sentence and you can imagine the frustration of a careful reader concerned to understand you right.
You have practical reasons for ensuring that the spelling is correct:
(i) Prudence -- Those who grade papers are presumed to be careful readers, and though we are also to presume that they try to be fair, we can hardly expect them to maintain the kind of objectivity needed to be fair when they become exhausted and exasperated by continually having to reread sentences because of misspellings. Indeed, they are likely to become irritated at the writer and take out their frustrations on the writer -- not consciously, of course -- by not giving the writer the benefit of the doubt. Substitute 'boss,' 'spouse,' 'lover,' 'child,' or anyone else for 'those who grade papers,' and you will get a sense of why writing well -- and spelling properly -- is an asset worth attaining to live a good life.
(ii) Pride -- Just as a confused and unclear structure will make a reader wonder about the wiring in your brain, so misspellings will make a reader wonder about your sense of self-esteem. If you do not care enough about how you present yourself to ensure that a reader will get a good impression or, in too many cases, even understand what you are trying to say. then you invite inferences about what you think about yourself -- and are willing to have others think.
Length -- The paper should be as long as it must be and no longer. Assume that you are writing for someone who is unfamiliar with the situation and that you must both explain the situation and explain why your favored solution is the best. You are laying down the constitutional grounds for a particular way of understanding citizen's rights -- not an easy task and not a trivial one -- and you do not want citizens to find you saying something stupid; you do not want them to find you giving an unclear statement; you do not want them to think you have left an important stone unturned; you presumably do not want those reading your opinion to be bored -- though boring readers sometimes has its place. So the length of the paper must be 'just right' -- what needs to be said and nothing more.
Pagination -- Number every page after the first so readers and critics can refer unambiguously to what you write.
Plagiarism -- If you have any questions that what you are plagiarizing, check it out! It is plagiarizing to hand in the work of another as though it were your own. So quotations and paraphrases require citations, and even the source of arguments that you have reworked as your own require to to be cited if they are not the common property, as it were, of those in a discussion of an issue.
Citations -- Many useful books are available
to help with style. I find Gordon Harvey's Writing with Sources: A Guide
for Students a useful guide, but any of a variety of books available in
the bookstore will do. I should add that Harvey has some useful remarks on plagiarism.
How to submit --Double-spaced, paginated, one-inch margins, 12-point type, stapled only in upper left-hand corner, no plastic binders. Remember Calvins paper on bats being bugs and his amazement that his plastic binder did not itself earn him an A. Submissions by electronic mail are acceptable provided that I have no trouble opening up your attachment; if I do, the onus will be on you to get a hard copy to me.