07 December 2006

Humpty Dumpty and the Law

Yesterday's Opinion by Justice Souter for the United States Supreme Court in the case of Lopez v. Gonzalez is the latest in a long line of decisions quoting Lewis Caroll's famous books for argumentative support. Reason for ComparativeLawBlog to wake up after a long period of silence and to have a quick, practically irrelevant and undoubtedly incomplete look at the history of references to Caroll's books in judicial opinions.

Lewis Caroll's Alice in Wonderland (1865) and its sequel, Through the Looking Glass (1871) have long been favorite sources for juridical references. In the United States, the earliest reference to Caroll's work in legal writing seems to be in a Note in an issue of the Albany Law Review of 1879, a mere fourteen years after the book's initial publication. In this early Note, Alice in Wonderland is cited on a par with older classics such as Dickens' Pickwick Papers (of 1830), underlining the amazing speed with which Alice assumed canonical status (for Caroll's homeland, references begin as early as 1890 in the Law Quarterly Review).

Judges too have often found it worthwhile to refer to Caroll's work making his books probably the most widely cited childrens' books in legal literature. Especially Humpty Dumpty's famous statement that when he used a word it meant exactly what he chose it to mean is often cited, in particular in discussions concerning interpretation. A quick look at the use of this phrase in Supreme Court opinions reveals a range of surprisingly different uses of this same topos.

The earliest USSC reference to Humpty Dumpty is in a Dissent by Justice Frankfurter in the case of Shapiro v. United States of 1948. Frankfurter uses the reference in a footnote to condemn "literary freewheeling" on the part of the Majority:

The Court thus construes the words 'complying with any requirements under this section' to read 'appearing and testifying or producing documents other than those required to be kept pursuant to this section.' Construction, no doubt, is not a mechanical process and even when most scrupulously pursued by judges may not wholly escape some retrospective infusion so that the line between interpretation and substitution is sometimes thin. But there is a difference between reading what is and rewriting it. The Court here does not adhere to the text but deletes and reshapes it. Such literary freewheeling is hardly justified by the assumption that Congress would have so expressed it if it had given the matter attentive consideration (FN5).

FN5 reads:
But cf. Carroll, Through the Looking Glass, c. 6:
"The question is' said Alice, 'whether you can make words mean so many different things.'
"The question is,' said Humpty Dumpty, 'which is to be the master; that's all." (See: 335 U.S. 1 , 43)

Frankfurter thus uses the reference (a) in dissent, (b) negatively, to criticize a way of 'interpretation' and, (c) against his colleagues on the bench, not against the legislator who wrote down the words in the first place. A similar use, but then in a majority opinion, can be found in Chief Justice Burger's Opinion for the Court in the 1978 case of TVA v. Hill:

In dissent, MR. JUSTICE POWELL argues that the meaning of "actions" in 7 is "far from `plain,'" and that "it seems evident that the `actions' referred to are not all actions that an agency can ever take, but rather actions that the agency is deciding whether to authorize, to fund, or to carry out." Aside from this bare assertion, however, no explanation is given to support the proffered interpretation. This recalls Lewis Carroll's classic advice on the construction of language: "`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean - neither more nor less.'"

Justice Powell himself, in a dissent joined by Justice Blackmun, evidently saw matters differently, damning the Majority's interpretation on ordinary criteria of construction: "I view this result as an extreme example of a literalist construction, not required by the language of the Act and adopted without regard to its manifest purpose. Moreover, it ignores established canons of statutory construction". Humpty Dumpty does not, however, figure in Powell's dissent.

Several months earlier, Humpty Dumpty had also surfaced in the Court's written reasoning, but this time in the course of a discussion on the extent to which Congress had intended to leave interpretative freedom to an executive agency. Justice Rehnquist, giving the Majority Opinion in Adamo Wrecking Co. v. United States wrote:

"All of this leads us to conclude that Congress intended, within broad limits, that "emission standards" be regulations of a certain type, and that it did not empower the Administrator, after the manner of Humpty Dumpty in Through the Looking-Glass, to make a regulation an "emission standard" by his mere designation".

Rehnquist's invocation of the topos is different from the uses mentioned above in that it suggests an assumption that Congres could have allowed the agency to act "in the manner of Humpty Dumpty", if only it had made its intention to do so explicit. We move from a suggested assumption to an explicit avowal of Congress' power to 'do a Humpty Dumpty' in yesterday's Opinion by Justice Souter:

"Reading §924(c) the Government's way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government's position. (...) Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean " 'just what [he chose] it to mean--neither more nor less,'"and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.".

Justice Souter's Opinion suggests that what he finds problematic in Humpty Dumpty's approach to language is not unrestrained freedom as to the determination of meaning itself, but the fact that Humpty Dumpty can change meaning after the words have been put to use, thereby allowing - in a legal context - the retrospective application of laws.

The most famous of all Humpty references in judicial opinions must be Lord Atkin's dissent in the UK House of Lords in the wartime case of Liversidge v. Anderson (1941); a reference that throws a different light upon what exactly is so wrong about Humpty's attitude to meaning when applied to law. At issue was a paragraph in the UK's Defence Regulations which included the clause"‘...if the secretary of state has reasonable cause to believe any person to be of hostile origin or association, (...)" as a precondition for coercive action. The question was whether "if the secretary of state has reasonable cause to believe" could be read as "if the secretary of state thinks he has reasonable cause to believe". Five out of six Law Lords thought it could; Lord Atkins wrote the lone dissent:

"I know of only one authority which might justify the suggested method of construction. ‘When I use a word’ Humpty Dumpty said in rather scornful tone, ‘it means just what I choose it to mean, neither more nor less’. ‘The question is’ said Alice, 'whether you can make words mean different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be master that's all”… [the question is whether the words ‘if a man has’ can mean ‘If a man thinks he has’, I am of the opinion that they can not , and the case should be decided accordingly.'".

Lord Atkin's dissent has later been hailed as the stronger view, with Lord Diplock writing in 1980: "I think the time has come to acknowledge openly that the majority of this House in Liversidge Vs. Anderson was expediently and at that time perhaps excusably wrong; and the dissenting speech by Lord Atkin was right" (UKHL ITC v. Rossminster).

The reference to Humpty Dumpty in Liversidge seems to have a different meaning than the one attributed to the same passage by Justice Souter. Perhaps the key lies in the fact that Lord Atkin does not only cite the famous first sentence, but goes on - just as Justice Frankfurter would do a few years later - to mention Alice's and Humpty's discussion of 'who is to be the master'. This last bit of the quotation suggests that the real problem with Humpty's view is related to authority; the fact that the speaker gets to unilaterally determine the meaning of his words precludes all form of communication when applied to ordinary life, but leads to absolute power when applied to legal commands. It is not mere retroactivity, therefore, that is objectionable; it is the absolute power that comes with being both legislator and judge.

PS Any info on additional Humpty or Alice references in case law or literature are very welcome!

Update (April 2008): The delightful LegalSoapBox blog has an extended discussion of Caroll references in judicial opinions, including many more quotations from judgments.


  1. Great to see you're back in style! V. enjoyable post. Perhaps you could consider one with Mick Jagger quotes in American judicial opinions?
    You may not miss SF, but this awful weather missed you! Best,

  2. Ordinarily I'd say quoting Alice in Wonderland as a source for law is suspect. But, I do think Humpty Dumpty had something. A word is a word. Meaning is meaning is meaning.

    --Jack Payne

  3. The link for Humpty Dumpty as he features in Australian law has moved - apparently to here: http://listproc.ucdavis.edu/archives/law-lib/law-lib.log0204/0552.html

  4. Great post! I've had a bit of a look at Australian cases in greater detail and found that Carroll is quite extensively cited.