May 29, 2005

Smokin' too much Fowler

In my mail on 27 May, from Neal Goldfarb (of the Tighe Patton Armstrong Teasdale law firm in Washington DC), a pointer to a most remarkable (and disturbing) claim in a 2003 Supreme Court Review article (Of "This" and "That" in Lawrence v Texas, 55 Sup. Ct. Rev. 75) by Mary Ann Case.  Examining the following sentence from the Court's October 2002 decision invalidating Texas's anti-sodomy law --

(1)  The Texas statute furthers no legitimate state interest which can justify its intrusions into the personal and private life of the individual.

Case maintains that it is ambiguous as to whether the relative clause in which is restrictive or non-restrictive.  That is, she maintains that (1) has an interpretation as in

(2)  The Texas statute furthers no legitimate state interest, which can justify its intrusions into the personal and private life of the individual.

which, according to her, entails

(3)  The Texas statute furthers no legitimate state interest.

She appeals to the authority of "strict grammarians" (citing, yes, Fowler), maintaining that "a classically trained grammarian" would in fact say that (1) was interpreted as in (2).  It's that pesky That Rule again, last discussed in Language Log here.

Case is "blinded by the rules", applying something she was presumably once taught, rather than using her own knowledge of the language.  Sentence (1) is not ambiguous in the relevant respect; it has only a restrictive interpretation.  Indeed, the purported paraphrase in (2) is ungrammatical, for reasons that are well understood.  Case has been smokin' way too much Fowler.

How remarkable that two topics of great concern to me — the modern advice literature on English grammar and usage, in particular the That Rule, and the politics of homosexuality, in particular the regulation of sodomy (between consenting adults in private) — should come together this way.  But how sad that a fundamental misunderstanding about the grammar of English should have made its way into the Supreme Court Review.

Case's claim in her article is that the majority opinion in Lawrence v Texas (written by Justice Kennedy) exhibits a considerable degree of unclarity, in part because of "ambiguity of referents".  Sentence (1) is just part of the web of unclarity she sees.  In more detail:

At least for strict grammarians, perhaps the most significant "that" in the entire majority opinion is the one that isn't there, in the sentence dissenting Justice Scalia describes as the opinion's "actual holding:"  "The Texas statute furthers no legitimate state interest which can justify its intrusions into the personal and private life of the individual." Note, the majority says "which can justify ..." rather than "that can justify...." A classically trained grammarian would observe that this should signal the majority's intention for the clause to be a non-restrictive rather than a restrictive one (or, as Fowler puts it "non-defining" rather than "defining"). "Non-restrictive clauses are parenthetic.... A non-restrictive clause is one that does not serve to identify or define the antecedent noun."  Thus, if the majority opinion is careful about its grammar, the question of whether the opinion applies heightened or rational basis scrutiny can be answered by noting that, technically, the sentence can be shortened to "The Texas statute furthers no legitimate state interest" without altering its meaning.  In other words, the statute fails the lowest level of scrutiny; no heightened scrutiny is required. Had the sentence continued with "that" rather than "which," it could correctly have been read to suggest instead that, while the Texas statute did "further a legitimate state interest," the interest was not one "that can justify its intrusion into the personal and private lives of individuals"; in other words, the majority would have been acknowledging a need to apply heightened scrutiny.

The main legal point here concerns the relevant level of scrutiny to be applied.  In Goldfarb's words, from his e-mail to me:

Regarding the phrase "heightened or rational basis scrutiny": This refers to an important aspect of the methodology of deciding whether a statute is unconstitutional. One of the central issues in making that decision is what "level of scrutiny" the court should apply. In other words, should the court take a critical look at the statute and strike it down unless the government presents a convincing justification for it (heightened scrutiny), or should it give the statute the benefit of the doubt and uphold it as long as there is some rational argument that could be made in its support (rational basis scrutiny). This is an oversimplification, but it will do for now.

In any case, the grammatical point is perfectly clear: which is entirely acceptable in restrictive relatives, so that (1), punctuated as above, is understood as having a restrictive relative.  In fact, a non-restrictive interpretation isn't possible at all; (2) is simply ungrammatical, because the NP no legitimate state interest isn't referential.  The point is an old one.  It's explicit in The Cambridge Grammar of the English Language (p. 1060):

Expressions consisting of no, any or every morphologically compounded with -one, -body or -thing, or syntactically combined with a head noun, have non-referential interpretations and cannot serve as antecedent of a [non-restrictive] relative, but they can be followed by [restrictive] relatives.

CGEL gives this rule (contrasting *No candidate, who scored 40% or more, was ever failed with the grammatical No candidate who scored 40% or more was ever failed), but not, of course the That Rule, since the That Rule "is not descriptive of actual usage" and so "had no place in a descriptive grammar" (as Huddleston put it in e-mail on 28 May). 

Goldfarb notes that Justice Kennedy "routinely violates the prescriptive which/that rule" -- as any reasonable person would. Here are three more instances, supplied by Goldfarb, of restrictive which (in bold) from the Lawrence opinion:

For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.
  Romer invalidated an amendment to Colorado's constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by 'orientation, conduct, practices or relationships,'...
 If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons.

The first of these is especially compelling, since the which is parallel to the earlier to which, and we all know that restrictive which, rather than that, is obligatory with fronted prepositions, with the result that parallelism can be maintained only by the choice of which in the bolded position.

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Posted by Arnold Zwicky at May 29, 2005 11:23 PM