"There is always a philosophy for lack of courage."—Albert Camus

Thursday, November 05, 2015

Justice Jackson’s Biblical Metaphor in Youngstown

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring):
Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.
Id. at 634 (emphasis added).[1]

As usual, Justice Jackson’s writing is beautiful and engaging. But is his metaphor apt and sensible?

First, Pharoah’s dreams were only enigmatic to Pharoah’s courtiers; Joseph—if we take the text at face value—knew precisely what the dreams meant. Thus, the dreams were not inherently “enigmatic”. Rather, they were only enigmatic to some people. Second, whether Pharoah had dreams (to use the plural) was the core issue being contested. Joseph’s position was that Pharoah only had a “single” dream, not dreams. [Genesis 41:25.] In both these ways, Jackson was wilfully rejecting the plain meaning of the text.

Furthermore, Jackson’s point of view is odd. It was Joseph’s position which (at the time) was adopted by Pharoah’s courtiers: his court. [Genesis 41:37.] In other words, not only is Jackson rejecting plain meaning, Jackson is wilfully choosing to restate the story—not through Joseph’s eyes—but through Pharoah’s courtier’s eyes prior to the time they consented to adopt Joseph’s interpretation. Only in this limited way can Jackson make his biblical metaphor work.

Welcome to modernity.

To put the issue in more modern terms ... Joseph tapped directly into original intent. Perhaps, then, the lesson to be learned from this is that those who are disconnected from tradition fall back onto functionalism, not because functionalism is the superior methodology, but because the prior interpretive tradition is one they can no longer readily comprehend. But those who still labour within the tradition: they can quite happily push forward confidently understanding prior art.

Seth

PS: My prior post is: Seth Barrett Tillman, What Law Could Learn From Popper’s Model of Science, The New Reform Club (Nov. 4, 2015, 12:30 PM), http://reformclub.blogspot.ie/2015/11/what-law-could-learn-from-poppers-model.html 

Twitter: https://twitter.com/SethBTillman  ( @SethBTillman )






[1] This passage from Jackson’s concurrence has been cited in well over 100 legal opinions, journal articles, and books. 

2 comments:

Tim Kowal said...

Jackson almost certainly was playing to the crowd with this metaphor. Truman had seized the steel industry based on "war powers," despite the fact Congress conspicuously never declared war in Korea. The conflict was also at a stalemate with the NorKos and their Chinese reinforcements, having traded Seoul a few times already and languishing in stalled negotiations. So when deputy AG Baldridge told the district judge that it was "correct" that "the President can determine whether an emergency exists and that the courts cannot review it to see whether there is really an emergency,” and when the Post reported that under the headline "U.S. ARGUES PRESIDENT IS ABOVE COURTS," the government's case was licked in the court of public opinion.

So Jackson and the other concurring opinions (the exigency of the matter left no time to consolidate the various rationales) knew of the great public interest in the story. But the sloppiness of the metaphor might be a sign that the "flies of summer" had already descended.

Tom Van Dyke said...

"U.S. ARGUES PRESIDENT IS ABOVE COURTS"

No newspaper would print that today. At least not until after January 20, 2017.