Posted by Orin Kerr:
Famous Misunderstood Legal Quotations and Statements:
http://volokh.com/archives/archive_2009_02_01-2009_02_07.shtml#1233636501
Over at [1]Prawfs, Howard Wasserman proposes an interesting law-geek
game:
Give and discuss examples of famous legal and law-related
quotations or statements that are frequently thrown around (by
lawyers and non-lawyers alike) in a way that completely and utterly
misses the point of the original quotation or statement.
To start things off, Howard offers up Justice Stewart's famous "[2]I
know it when I see it" line about hard-core pornography. That line is
generally used to celebrate common sense and powers of intuition, but
it was intended as a critical comment on the court's unintelligible
legal standard for obscenity.
For my own contribution, I offer the claim that the original
Constitution is tainted because [3]"slaves were only counted as 3/5 of
a person." To be sure, the original Constitution was tainted by its
failure to resolve the question of slavery. But those who point out
the 3/5 compromise generally assume that that treating slaves as less
than a person reflected the pro-slavery view. Not so. [4]The 3/5
compromise concerned the counting of persons for purposes of state
representation in the House of Representatives. As a result, it
determined the political power of pro-slavery states relative to that
of free states in Congress rather than the importance of the slaves as
people:
Delegates opposed to slavery generally wished to count only the
free inhabitants of each state. Delegates supportive of slavery, on
the other hand, generally wanted to count slaves at their actual
numbers. Since slaves could not vote, slaveholders would thus have
the benefit of increased representation in the House and the
Electoral College . . . . The final compromise of counting "all
other persons" as only three-fifths of their actual numbers reduced
the power of the slave states relative to the original southern
proposals, but is still generally credited with giving the
pro-slavery forces disproportionate political power in the U.S.
government from the establishment of the Constitution until the
Civil War.
Any other suggestions? If so, please leave it in the comment
section.
References
1.
http://prawfsblawg.blogs.com/prawfsblawg/2009/02/misunderstood-legal-quotations.html
2. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0378_0184_ZC1.html
3.
http://www.google.com/search?hl=en&client=safari&rls=en&q=slaves+only+counted+as+3%2F5+person&btnG=Search
4. http://en.wikipedia.org/wiki/Three-fifths_compromise
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