Analogies aren't Identities

Tibor R. Machan

When some senators during the hearings on Sonia Sotomayor's nomination to the U. S. Supreme court compared judges to baseball umpires who call balls in or out, supporters of Judge Sotomayor were upset. They, such as Fred Kaplan of Slate, in his Op Ed column for the July 20, 2009, issue of The New York Times, noted that "laws are more complex than strike zones or foul lines, which is why the analogy between judges and umpires is so misleading."

The criticism Kaplan offers of the Senators misfires. When people use analogies, they are not maintaining either explicitly or implicitly that the analogous case is identical to the one they are attempting to explain. No one in his right mind thinks that referees are doing the very same work that's done by members of the United States Supreme Court--or indeed by members of other courts--as they rule on cases that come before them. What is true, however, is that there are elements to their ruling that are similar to the ruling made by umpires. In particular, when an umpire invokes the principle that balls that are outside the region prescribed by the game are unacceptable while those in are, a similar thing happens to when a justice invokes the U. S. Constitution to determine whether a position taken by a litigant before it fits within the principles of the U. S. Constitution (and other relevant documents, such as Supreme Court precedents).

So, of course, cases are far more complex than pitched balls. The point, however, is that just as in baseball the game's basic principles may not be ignored by umpires, so it is with the rulings of the judges and justices of courts. Otherwise the game and the law, respectively, become distorted. Since, however, some people do not like the principles of the U. S. Constitution, they are happy to distort them, consider them, as modern liberal legal theorists have said, part of a living document. By "living" they didn't mean to say it was some kind of biological organism--the Constitution is supposed to be, once again, analogous and not identical to living beings--but that it grows and changes and develops.

Unfortunately, for many such modern liberal legal theorists the U. S. Constitution is more like a cancerous than a living document--it can develop any which way, without rhyme or reason apart from what the judges and justices prefer (based on their own political, moral or pragmatic outlook). The Republican Senators who invoked the analogy of the baseball empire might have known that what they put forth would be jumped all over. This, after all, is a serious dispute. There are some serious people who believe that the principles of the U. S. Constitution are stable and lasting, while there are others who think they are now outmoded, even obsolete. Many conservatives and libertarians belong among the first group while modern liberals among the second.

One area where this is clear and indisputable is with regards to the Bill of Rights. For modern liberal legal theorists, in the main, the original Bill of Rights contains some but by no means all the rights they think human beings have. (Professor Cass Sunstein, the president's friend and strong ally, is one such theorist.) That is why they are so fond of Franklin Delaware Roosevelt's Second Bill of Rights, one that FDR tried to get the U. S. Supreme Court to adopt by packing the court with justices who would agree with him politically.

The original Bill of Rights lists mainly what are called negative individual rights, rights that amount to prohibitions of interference with the liberty of individuals. FDR's Second Bill of Rights lists some of these but mixes in a bunch of new "rights," now called positive. These are what give rise to entitlements. If one has the right, for example, to health care or some other provision of the welfare state, that requires positive action by others, action that will produce the provisions (work, property, creativity, etc.). Negative rights only require that people refrain from doing certain things, like murder, assault, theft, fraud, etc. They don't require service from others to someone. Positive rights, however, do.

The living constitution that modern liberals talk about--the one I have dubbed cancerous--has stripped the idea of individual rights of its original function (e.g., in the thinking of the famous theorist of natural rights, the philosopher John Locke) to fend off government interference, to contain or limit government to certain specific powers. This is just what modern liberals don't want--consider the questioning during the hearings by the new Wisconsin Senator Al Franken who wanted to drive home the point that any powers Congress asserts for itself ought to be granted and not revoked by the U. S. Supreme Court.

So the analogy is a vital one but not because baseball umpires do exactly what judges and justices do--or vice versa--but because in both cases certain basic principles are supposed to guide judgment.