Sunday, February 6, 2011

Failed Constitutional Metaphors

Shameless Plug Department: Louis J. Sirico, Jr., “Failed Constitutional Metaphors: The Wall of Separation and  the Penumbra”, 45 University of Richmond Law Review 459 (2011). Here’s the abstract:

 Metaphors do more than explain the meaning of statutes and constitutional provisions. They also create their meaning. Metaphors, however, have their drawbacks. They do not yield precise legal tests. In the words of Justice Cardozo, "A metaphor, however, is, to say the least, a shifting test whereby to measure degrees of guilt that mean the difference between life and death." As he further observed, "Metaphors in law are to be narrowly watched, for though starting as devices to liberate thought, they end often by enslaving it."

 Because metaphors have inherent limitations, they can fail. This Article is about two metaphors that have failed: the wall that allegedly separates church and state and the penumbra that justifies the constitutional right of privacy. The first metaphor defines the Establishment Clause in a debatable way that does not always comport with judicial decisions. The second justifies a doctrine with questionable imagery that weakens its force and restrains its reach. The Article employs a historical lens to examine these metaphors and to ask why they have enjoyed such staying power.


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