When plagiarism isn't plagiarism -- answer: in much of the work of lawyers

According to a recent study (as summarized by Adam Liptak in the New York Times), in Supreme Court majority opinions over almost 70 years (1946-2014) “the average rate of nearly identical language between a party’s brief and the majority opinion was 9.6 percent.”

It’s a little difficult to know what this means. Liptak says that “[t]he study and related findings … looked for passages of at least six words with an overlap of at least 80 percent.” So if a Justice wrote a six-word clause, of which 5 words were the same as those in a party’s brief, the study would have counted it as an instance of nearly identical language. Since many Supreme Court opinions quote at some length from statutes or precedents, it seems possible that quite a lot of the reported overlap consists simply of use of governing legal language, as Liptak notes.

Liptak reports that Justice Thomas’s use of nearly identical language is “unusually high” (11.3 percent), but while Justice Thomas apparently writes this way more than the others on the Court, the differences do not seem vast: Justice Sotomayor is at 11 percent, Justice Ginsburg at 10.5, and the Court’s average was 9.6 percent. So it’s hard to tell whether the data really shed any substantial light on Justice Thomas’s overall work as a Justice.

But what’s noteworthy is that judges’ use of others’ language seems to be generally (though not universally) accepted as perfectly appropriate. Similarly, lawyers regularly use published form documents as the basis for those they have their clients sign, and I think that it is also commonplace for lawyers to borrow arguments wholesale from either published sources or colleagues’ past matters – and in both forms of writing I believe the borrowing lawyers do not footnote to their sources. There may be some outer limits on such practices, but it seems fair to say that a significant amount of what lawyers and judges do with words would be plagiarism if it was done in the pages of a scholarly journal, or a newspaper. (Of course lawyers sometimes use words not as advocates or judges but as scholars or journalists, and in those contexts the rules of plagiarism apply to lawyers exactly as they do to others.)

Why don’t the rules of plagiarism apply to the work of lawyers and judges as they do to the work of scholars and journalists? Presumably because what we want from lawyers and judges is results. When a lawyer drafts a document, much of what he or she is doing is employing tools – legal terms – to accomplish an objective. It would make no more sense to bar the lawyer from using language someone else had developed than it would to prevent a carpenter from using the correct tool. (At least provided, in each case, that the original developer had made his or her tool available, or put it in the public domain.) Similarly, when a judge deploys borrowed language to lay out the foundation for a conclusion, he or she may rightly be seen as simply using the tools at hand.

We do, certainly, want more from lawyers and judges than mere use of tools. Creativity, judgment and wisdom are also part of the law. But our collective practice seems to reflect that we think we can still look for creativity, judgment and wisdom even while recognizing that a substantial amount of the work to be done is the employment of tools, and that as a result we should regulate the ethics of using words in law practice quite differently than we would in domains where the plagiarism rules hold full force.

What if the constitution truly contradicted itself?

Suppose that the U.S. constitution didn't simply "contemplate" the death penalty, but included a sentence declaring, without qualification or limitation, "The death penalty is constitutional." But let’s assume that the same constitution equally explicitly, and equally without qualification, forbids arbitrary and inconsistent punishment. (Whether our constitution does so can be disputed: Justice Scalia would maintain that it is no mark of “cruel” punishment that one person receives the penalty he or she deserves, while another for inexplicable reasons gets off more lightly. Glossip, Scalia, J., concurring at 4.) Suppose also that Justice Breyer's argument in Glossip is right: the death penalty is arbitrary and inconsistent punishment.

At this point the death penalty both is and isn't unconstitutional, depending on which provision of the constitution we look to. So which provision should we look to? This is a difficult question, to say the least.  U.S. courts do not consider themselves in the business of declaring parts of our constitution unconstitutional, but the issue I've imagined seems to force courts to consider doing exactly that.

If either provision contained additional language, of the sort often seen in statutes, saying that this provision was to apply "notwithstanding anything to the contrary in any other provision," we would have a clear textual answer. But then there wouldn't really be a contradiction between the two provisions, since one would take precedence over the other.

Absent such textual directives, we could look to principles of textual interpretation to resolve the contradiction we face. If one provision was adopted later than the other, an interpretive canon favoring the last-adopted provision (as presumably reflecting the adopters' most recent thinking) could be applied, but this won't help us if all the provisions were adopted at the same time.

Another such guideline is that the more specifically applicable provision should be applied rather than a more generally phrased one. The idea here is that broad principles can have many meanings, and that what the adopters said on the specific matter at hand tells us what they intended the reach of their broad principles to be. So, here, the constitution's adopters could be taken to have meant that the prohibition of arbitrary and inconsistent punishment could have many meanings and could be applied in many contexts, but that the death penalty was not to be held to be arbitrary and inconsistent.

But if the death penalty really is arbitrary and inconsistent, then why should it be exempt from constitutional scrutiny directed at that reality? One response to this critique, to be sure, is to reinterpret what we mean by "arbitrary and inconsistent"; if those words have a narrower meaning than we thought, then the death penalty could be upheld on the ground that it actually is not arbitrary and inconsistent, according to the meaning that those words should be understood to have. But I want to assume that we are satisfied that our interpretation of "arbitrary and inconsistent" - the interpretation that would strike down the death penalty - is the correct one.

(Let me rephrase that claim, to acknowledge that calling one interpretation rather than another "correct" may be a form of hubris. So let me assume simply that we are satisfied that our interpretation of this prohibition is the one that makes the best sense to us in light of all the factors that affect our interpretations. I have to acknowledge that even this assumption is quite a strong one; a court not so sure that its preferred mode of interpreting the constitution is so compelling would have correspondingly less justification for using its interpretive approach to override clear language pointing the other way.)

All that said, there is also another problem with the "specific controls the general" approach. This is that this interpretive guideline exists in a sea of interpretive principles, many of them pushing in opposite directions, a point vividly stated (and perhaps somewhat overstated) by Karl Llewellyn years ago. Exactly what weight is to be given to any given interpretive principle is always, in the end, a contextual question.

But isn't it clear that whatever else the adopters meant, they certainly meant to affirm the death penalty's constitutionality? This argument would not only resolve our interpretive confusion but give us a principled argument for accepting the death penalty: that doing so honors the democratic choice of the constitution's adopters. But the adopters also meant to bar arbitrary and inconsistent punishments. They may have thought they could do both - but we have concluded that we can only do one or the other. (That could be because we are misunderstanding the prohibition of arbitrary and inconsistent penalties - but, again, I'm assuming that our interpretation of that prohibitions meaning is correct, or at least so cogent that we are confident of its appropriateness.)

If we can only obey one constitutional command, which should it be? The price of obeying the clause safeguarding the death penalty is that we can only do so by disregarding the penalty’s arbitrariness and inconsistency. That seems to me to be too high a price to pay. The death penalty is just one penalty; the principle of avoiding arbitrariness and inconsistency is a broad principle that in one way or another today pervades our law. To decide in favor of the application of the rule against arbitrariness and inconsistency is to rest decision on this principle; to rule in favor of the provision protecting the death penalty is to say that this same principle has its limits, limits that have no logical basis except the sheer fact that the constitution declares them – and the problem with that logical basis, as we’ve already seen, is that the constitution as we’re reading it declares these limits but also undeclares them: it is self-contradictory.

Courts, as Justice Scalia has said, want to shape the body of our laws to make as much sense as possible. The desire for a jurisprudence and a nation always acting based on principle is also a major theme of post-apartheid South African law, famously articulated by the anti-apartheid scholar Etienne Mureinik in his article A Bridge to Where? Introducing the Interim Bill of Rights, 10 South African Journal on Human Rights 31 (1994). I am not confident that we can apply our principles relentlessly and universally; I suspect, with Hamlet, that there are “more things in heaven and earth” than are encapsulated in any set of principles we might affirm.  But if a choice must be made, which is what the situation I've posited demands, then I believe the right decision is the choice of principle and logic rather than unreasoned exception - or in other words to hold the death penalty unconstitutional because of its arbitrariness and inconsistency.

The normality of a "self-contradictory" constitution

Is the idea of a self-contradictory constitution - that is, a constitution which under one provision permits some state of affairs, but under another prohibits it - odd at all? The answer is, actually, no. Consider these examples:

Congress imposes a tax on the purchase of television ad time, but only for political ads. That's presumably perfectly okay under the tax power, but certainly a breach of free speech under the First Amendment.

A local police officer stops a black motorist who makes a turn without using her turn signal. The stop has an objectively valid basis and so under current interpretation would not violate the Fourth Amendment, which regulates "seizures," including stops. But if the reason for the stop was actually a deliberate program of racial profiling, it would be unconstitutional race discrimination under the Fourteenth Amendment's Equal Protection clause.

What about a state statute that provided for the death penalty for homicides, if they are committed by African-Americans? Clearly, even if the Constitution affirmatively declared that the death penalty is not unconstitutional under the due process clause (which permits the deprivation of life "with due process of law"), this statute would be unconstitutional under the Equal Protection clause. And that's true even though the Due Process and Equal Protection clauses are both in the same Amendment, the Fourteenth. (The Fourteenth Amendment's due process clause applies to the states; the Fifth Amendment'a due process clause applies to the federal government.)

But, one might say, even though the Constitution contains multiple provisions and those provisions naturally can have differing consequences for the constitutionality of particular government actions, at least those provisions' intersection must be determined in light of their original meaning. A provision can't somehow expand in meaning to swallow some situation it formerly didn't apply to.

This contention is of course just an instance of the general idea that the constitution's meaning was fixed at the time of its adoption. That's not my view, as I've made clear elsewhere, but I want to offer one more example of our law taking a different approach.

This is Bolling v. Sharpe, the case that held school segregation in the District of Columbia unconstitutional. Why didn't Brown v. Board of Education, issued the same day, decide this? Because Brown was a decision under the Fourteenth Amendment's Equal Protection clause, which applies only to states. There is no textual Equal Protection clause applying to the federal government. So how does Brown's command come to apply to the schools in D.C., which are not governed by the Fourteenth Amendment because the District of Columbia is not a state? The answer is: through the equal protection component of the Fifth Amendment's due process clause. 

But how do we know that that implicit equal protection component applies to school segregation? After all, the Fifth Amendment – which itself has never been amended -- was adopted at a time when the Constitution explicitly, if euphemistically, “contemplated” (to use Scalia's language) slavery. The Thirteenth Amendment made slavery unconstitutional, so we can say that the Fifth Amendment no longer contemplates that, but what about school segregation? The Fourteenth Amendment – which the Brown Court interpreted as banning school segregation (though that may well not have been what the Fourteenth Amendment’s adopters thought it meant) – doesn’t apply to the federal government. What the unchanged language of the Fifth Amendment should be understood to “contemplate” now is the result of the Supreme Court's interpretation of the Fourteenth Amendment and the Court's conviction that “[i]n view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” In short, the Fifth Amendment’s meaning grew over time to outlaw school segregation.

Justice Scalia's opinion in Glossip v. Gross takes for granted that because the constitution explicitly contemplates the existence of capital punishment, that penalty could not legitimately be held unconstitutional. But it turns out that’s simply not so.

Can the Constitution's text both protect and prohibit the death penalty? (A thought experiment)

To consider the possibility of a self-contradictory constitution, I want to assume that what the Constitution actually says about the death penalty is much blunter than it actually is – that in fact the Constitution declares that "the death penalty is constitutional under the Fifth and Fourteenth Amendments," the provisions that (as I discussed in my previous post) Scalia in reality invokes in Glossip v. Gross as “explicitly contemplating” capital punishment. Could it be that the death penalty is nevertheless unconstitutional?

One way to make progress with this question would be to ask: “under what provisions of the Constitution could the death penalty be held unconstitutional?” I think that the language I’ve imagined, declaring that “the death penalty is constitutional under the Fifth and Fourteenth Amendments,” does bar any court from saying that, after all, the death penalty is not constitutional under these amendments. For a court to simply contradict the text strikes me as unequivocally denying the power of the people to rule themselves.

It’s worth mentioning that not all legal systems would agree. There are courts which have reasoned that their constitution contains a core meaning that simply cannot be contradicted; if the people of the country adopt new language departing from that core meaning, what they have adopted will itself be unconstitutional and void. One could extend this reasoning to say that even language that was part of the constitution all along was so out of synch with the constitution’s true core meaning that it had to be treated as unconstitutional. (Ronald Dworkin, I believe, made such an argument about the Fugitive Slave Clause of the United States Constitution in the years before the Civil War.) But the United States Supreme Court has not reasoned this way. 

There is, however, another possible answer to the question I asked: “under what provisions of the Constitution could the death penalty be held unconstitutional?” This answer would be: not under the Fifth and Fourteenth Amendments, as to which the text commands an answer, but under the Eighth Amendment. That Amendment prohibits “cruel and unusual punishments,” and the constitutional text I’ve imagined, declaring that the death penalty is constitutional under the Fifth and Fourteenth Amendments, says nothing about whether the death penalty is also constitutional under the Eighth Amendment. 

(Or at least my hypothetical language says nothing explicit about this. Long-established constitutional law reads the Eighth Amendment as applying of its own force only to the federal government, and as reaching the states only through “incorporation” via the Fourteenth Amendment, so one might say that my language about the death penalty's constitutionality under the Fourteenth Amendment barred any decision that the states could not impose the death penalty. One could even argue that this understanding of the Fourteenth Amendment echoed back to the Eighth Amendment and so indicated that the death penalty couldn't be invalidated even as to the federal government. But these complexities needn’t detain us; the hypothetical language I’ve imagined could have been written differently to get around these issues, and I’m using it only to frame the problem of a self-contradictory constitution.)

Could it be, then, that the Eighth Amendment prohibits what the constitutional text explicitly protects with respect to the Fifth and Fourteenth Amendment? Actually, the answer is yes. One might argue for this conclusion simply as a matter of logic: the Eighth Amendment is not the Fifth or Fourteenth, and each amendment can and should have its own meaning (an application of the interpretative idea that no part of the text should be seen as superfluous). But this conclusion also turns out to have a basis in already established constitutional law.

Consider this provision, a part of Article IV, Section 2 of the Constitution:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The meaning of this provision may seem obscure, but only because what it refers to is long gone. This is the Fugitive Slave Clause that I mentioned a little earlier in this post. Slavery long ago became unconstitutional in the United States, the result of the Union’s victory in the Civil War and the adoption of the Thirteenth Amendment. But – and this is the important point for my argument – the Fugitive Slave Clause was not removed from the Constitution. It is still there. Yet no one today can lawfully hold another person in slavery, nor insist on the return of a slave who escaped from bondage. So, actually, this provision of the Constitution is unconstitutional.

None of the provisions of our Constitution that subsequent amendments have overridden has been removed from the text. (This is quite unlike our practice with statutes; when a statute enacted in one year is amended in a later year, all subsequent texts of the statute include only the language as amended.) It follows that quite a number of provisions of our constitutional text are in fact unconstitutional.

But it might be said that this version of constitutional self-contradiction isn’t real. We find it convenient to keep in the text of our constitution the various parts of it that amendments have altered, but they aren’t really part of the constitution itself, we might say, and so the constitution isn’t really contradicting itself. The clearest support for this argument may be the Twenty-First Amendment, which ended Prohibition. The first section of the Twenty-First Amendment declares: “The eighteenth article of amendment to the Constitution of the United States [the one that created Prohibition] is hereby repealed.” But the Eighteenth Amendment still appears in our Constitution; it’s been repealed but not erased. That might be seen as what’s happened with the other provisions we’ve altered by amendment as well, though I don't believe any other amendment in fact declares that the earlier provisions it is altering are also "repealed."

So can we find any instances of more substantial self-contradiction? The answer, I’ll argue in a future post, is yes.