The Volokh Conspiracy - Famous Misunderstood Legal Quotations and Statements:

Over at 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 "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 "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. 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 them in the comment section.

	[Orin Kerr, February 2, 2009 at 11:48pm] Trackbacks Famous Misunderstood Legal Quotations and Statements: Over at 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 "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 "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. 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 them in the comment section.