I remember when Justice Roberts first made his analogy that being a Supreme Court Justice was like being an umpire, suggesting that he didn't make the rules he just applied them. I was amazed and deeply disappointed that none of the Senators had the brains or the balls to take on that analogy. I never blogged about it then, but now that the use of that analogy has reared its silly head during the vetting process of Judge Sonia Sotomayor, here is why I think that analogy is terribly flawed.
Baseball is a game, yet a fairly complex one. It has a set of rules that fills 125 pages, including numerous diagrams and over 40,000 words; this does not even count the index to the rules, which fills another 7 pages. You can find the rules here:
http://www.mlb.com/mlb/official_info/official_rules/foreword.jsp
The U.S. Constitution contained roughly 4500 words (I say "contained" because some of the original text was replaced during the amendment process, such as with the 12th Amendment); the Amendments tack on another 3500 words, which puts us at 8,000 words. That is one fifth of the number of words used to govern the game of baseball--and the U.S. Constitution did not include diagrams!
Forty thousand words to govern every conceivable scenario that could arise in a game. Yet, fewer than 10,000 words to govern every conceivable scenario that could arise in a society. Is the Constiution really so complete that the Justices just "apply the rules" like umpires?
The obvious conclusion is: no, the framers could not have possibly thought of every scenario. (Which is one reason I think the term "framer" is appropriate; they build the framework, but the Constitutional house continues to be remodeled and upgraded to deal with the changing conditions in which it must house its society.)
One example is with guns. Many argue that a bill limiting handguns is not constitutional, but few argue that a bill limiting one's ability to have or build a nuclear weapon is unconstitutional. So, who draws the line on which "arms" we have a right to bear. At the time of the drafting, there were neither semi-automatic guns, nor nuclear bombs. Lines get drawn every day, and those that claim they don't are either disingenuous or just plain dumb.
I hope that some Senator's aide, or Jeffrey Toobin, will read this and please help put that inapt analogy to rest.
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2 comments:
For that matter, baseball umpires regularly change the rules of the game--for example, pretty much every one has his own strike zone.
I sense you're preaching to the choir, Jim, but I'll sing along anyway. The analogy is also inapt because umpires make calls in a vacuum, while justices decide cases by building a consensus into a majority. If it were as simple as calling balls and strikes, we wouldn't need nine on the bench!
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