Justice Kennedy interprets the passive

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Anita Krishnakumar posts at Concurring Opinions on November 2 about a Supreme Court judgment by Justice Anthony Kennedy that turned quite crucially on the distinction between active and passive voice in the language of criminal statutes, only (you're ahead of me already aren't you, Language Log readers?) Justice Kennedy doesn't know his passive from a hole in the ground, so the claims made are nonsense. I see no way to read what he says that does not involve assuming that he thinks if serious bodily injury results and if death injury results are passive clauses. And the point is a general one, crucially tied to grammar: Kennedy thinks that in general "criminal statutes use the active voice to define prohibited conduct" and use the passive voice to specify mere sentencing factors associated therewith, and courts should pay attention to that distinction. Only there isn't a distinction in the statute he cites. I won't go on about it, since a couple of sensible commenters do my work for me right after the post, citing Language Log, where so many posts have been devoted to this topic (I aggregate them for reference here). But heavens above: You can get to be a Supreme Court justice, and write about actives and passives, without having any clue how that distinction is normally defined by grammarians, and without giving any alternative definition? Could we perhaps organize a few lunches at which linguistics department chairs meet with law school deans or something?

[Hat tip: Garrett Wollman.]

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45 Comments »

  1. Richard Bell said,

    November 4, 2009 @ 10:40 am

    But of course there are passives in all three subsections. "shall—(i) … be fined, (ii)… be fined, (iii)ge fined… or imprisoned."

  2. MBM said,

    November 4, 2009 @ 11:30 am

    Many people confuse syntax with semantics and think that "passive" sentences are those that hide or de-emphasize agency: the likes of "it is regrettable that mistakes happened" and so on.

    [Yes, yes, this is what Language Log has been stressing continuously since I first wrote about it in December 2003; Mark first pointed out that passive voice does not mean 'vague about agency' in May 2004. —GKP]

  3. Sili said,

    November 4, 2009 @ 11:49 am

    At least he said passive voice, not 'tense'.

  4. Jerry Friedman said,

    November 4, 2009 @ 12:02 pm

    @MBM: Maybe linguists could come up with a memorable phrasing for constructions that hide or de-emphasize agency, so it would at least be available to the people who misuse "passive" to mean that.

  5. Acilius said,

    November 4, 2009 @ 12:41 pm

    Several of Justice Kennedy's colleagues spent substantial portions of their student years studying Latin and Greek. They may not have kept it up, but I can't imagine they wouldn't remember what voice is. If he had presented this passage in conference with them, surely he would have been corrected. Justice Kennedy's own almae matres, the Leland Stanford University, the London School of Economics, and Harvard Law School, all count a bias against classical learning among their founding principles, so his own ignorance is hardly surprising.

  6. Otter said,

    November 4, 2009 @ 1:06 pm

    Unlike Acilius, I am still surprised by the ignorance of graduates of Stanford, the LSE, and Harvard Law noted on newspaper front pages almost every day. On the other hand, since the confirmation of Justice Thomas, I have become quite accustomed to ignorance on the Supreme Court bench.

  7. Steve F said,

    November 4, 2009 @ 1:20 pm

    The first comment on Concurring Opinions makes a good guess at the source of the confusion: the most obvious synonym for the active verb 'results' would be in the passive voice – 'if serious injury is caused'. Of course, 'results' is an active verb, but I can understand the point Justice Kennedy was trying to make – that the statute does not phrase it with an active transitive verb that identifies the perpetrator as subject ('the perpetrator causes injury/death'), but with an active intransitive verb which makes 'injury/death' the subject. Of course Justice Kennedy is still misusing linguistic terminology to make 'passive' mean something like 'vague about agency', and certainly joins the large group of people that Language Log has identified as making this very common mistake.

  8. dwmacg said,

    November 4, 2009 @ 1:33 pm

    @Jerry Friedman,

    This is pretty typical of the confusion that results when a technical term also has a non-technical meaning (a confusion that creationists exploit when they say that evolution is "only" a theory). Not many people misuse the term "ablative" because not many people have hear of it, unless they've studied the grammar of a language with an ablative case. Perhaps it's time for linguists to concede defeat and come up with new technical terms for the active and passive voices that are totally opaque. Something like "plumative" and "rommative".

    (I'm feeling pessimistic today.)

  9. J. W. Brewer said,

    November 4, 2009 @ 1:57 pm

    Elsewhere on the U.S. Supreme Court linguistics beat, Justice Scalia interrupted a lawyer at argument yesterday not to make a substantive point but to criticize the lawyer's use of the non-existent (in His Honor's view) word "choate" to mean something like "no longer inchoate." It's at page 5 of the transcript here: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-969.pdf. (Scalia analogizes to the non-existence of "gruntled" despite "disgruntled," which is at least a pretty good analogy for a non-technical audience.)

  10. Nathan Myers said,

    November 4, 2009 @ 2:42 pm

    I'd much rather read LL excoriate people insisting words people actually use "don't exist", than about recentish vague redefinitions of terms of grammatical technology.

    It's far more unbelievably stupid to complain that "choate" and "gruntled" don't exist than to believe that constructions vague about agency deserve some sort of name, and grope about howsoever clumsily for one. My estimation of Justice Scalia just dropped yet another notch, astonishingly. I imagine a sea captain insisting that the boatswain stop calling the bittacle a "binnacle", and the midshipman stop calling the boatswain a "bosun".

    The sensible response to "that word doesn't exist" is almost always "it does now!".

  11. ShadowFox said,

    November 4, 2009 @ 2:50 pm

    On Scalia and "choate"–it seems that even online one may find the definition of "choate" as an adjective (backformation from "inchoate"), and "choateness" as a noun (both in the MW Legal Dictionary, 1996). But no verb. So Scalia gets partial points–descent analogy, no verb–but only partial because the word is recognized in a respectable dictionary.

  12. Spectre-7 said,

    November 4, 2009 @ 2:55 pm

    @dwmacg,

    A few years back, Mark Liberman suggested the hyptic voice.

    Perhaps we should start with a lexical make-over. We could try replacing the word passive with a competely new borrowing from a classical language, like the "hyptic voice". (Greek ὕπτιος meant "laid on one's back; turned upside down; backwards", and was also sometimes used to refer to the passive voice of verbs.) This might work — hyptic is a little weird, but there are useful resonances with hip and hypnotic.

    I've always rather liked the sound of it.

  13. Dr. Techie said,

    November 4, 2009 @ 2:58 pm

    Having looked at what Kennedy actually wrote, it appears to me that he is contrasting "… takes a motor vehicle…”, which he correctly describes as active, with "…be fined … or imprisoned", which he correctly describes as passive.

  14. dwmacg said,

    November 4, 2009 @ 3:01 pm

    @Spectre-7,

    Thanks, I should've know ML had the idea before (and with a better candidate).

    @ShadowFox,

    AskOxford.com has this example of "gruntled":

    He spoke with a certain what-is-it in his voice, and I could see that, if not actually disgruntled, he was far from being gruntled.
    P. G. Wodehouse 1881-1975: The Code of the Woosters (1938)

    And Merriam-Webster traces it back to 1926:

    were gruntled with a good meal and good conversation — W. P. Webb

  15. George Amis said,

    November 4, 2009 @ 3:22 pm

    Re:choate
    OED calls choate an 'erroneous word". The first citation of it is to O.W.Holmes (apparently the jurist) calling it an 'amusing slip', which I suppose it is if you know and care about its derivation from Latin. It's last citation is a perfectly straighforward use by Winston Chruchill, 'what choate and integral conviction could they form?'

  16. Sili said,

    November 4, 2009 @ 3:30 pm

    Well, Scalia isn't exactly the most couth of people.

  17. Dr. Techie said,

    November 4, 2009 @ 3:34 pm

    Sorry, earlier reference to the "be fined… or imprisoned" confused me. What Kennedy is actually contrasting is:
    (main paragraph) "whoever takes" (active)
    (2) "serious bodily injury results" (active, but he calls it passive)
    (3) "death results" (active, but he calls it passive).

  18. Simon Cauchi said,

    November 4, 2009 @ 3:49 pm

    I don't think it's stupid to complain of "choate". Presumably Justice Scalia knows some Latin and understands the etymology of "inchoate". People who use the word "choate" do so at their own risk — of looking ignorant and having their mistake exposed to ridicule. You say the word "choate" is found in the MW legal dictionary. Well, it's not in any of my general English dictionaries (Chambers, NODE, NZOxD, Compact OED), and you can't find any source for it in Latin ones. Down with fake Latinity!

    Bertram Wooster's "gruntled" was, of course, a joke.

  19. Andrew (not the same one) said,

    November 4, 2009 @ 3:52 pm

    dwmacg: But surely Wodehouse's use of 'gruntled' only has the desired comic effect if it is not seen as a regular word. (This is not to say it may not be one by now. Words that were originally comic can become part of the established language. I believe that when W.S Gilbert wrote 'When the enterprising burglar isn't burgling', the word 'burgle' was a joke, but it's now the established word for the act – in UK English, at least.)

  20. Simon Cauchi said,

    November 4, 2009 @ 4:02 pm

    "Couth", on the other hand, is, or was, a perfectly good word. You can find it in Harington's Ariosto of 1591: "So well his leere he couthe" (where it's a preterite rather than a participle, but that's OK). In the 1632 third edition of the translation the line was misunderstood and misprinted as "so well he leere his couth"! (Don't ask me to provide a reference: I quote from memory.)

  21. Q said,

    November 4, 2009 @ 4:28 pm

    All I can say is, if Justice Kennedy thinks that the language of all laws is carefully (and consistently across different Congresses) crafted to reveal this level of precise shades of intention, then he is either ignorant of who it is that writes and passes laws, or he has never met an actual member of Congress.

  22. dwmacg said,

    November 4, 2009 @ 5:29 pm

    Andrew,

    Fair point, but I think the flipside is that the joke doesn't work if the meaning of the neologism isn't immediately transparent. So even if it "isn't a word", it's pretty clearly waiting to be one.

    But also, it's not clear to me without further context that the Webb quote (which was earlier than the Wodehouse quote) was meant to be a joke; in any case if you do a google search for the phrase "were gruntled with a good meal and good conversation" you'll find a lot of people who have taken the Merriam-Webster entry as license to include gruntled in their vocabulary.

    Also googling "gruntled" gets you over 100,000 hits, but many of them seem to be of the "is it a word?" variety, and it seems that it still retains a jokey quality.

    So, um, I dunno.

  23. Nathan Myers said,

    November 4, 2009 @ 5:38 pm

    Simon: It's stupid precisely because we don't subscribe, around here, to the etymological fallacy. In Latin, "choate" might not not make sense, but "inchoate" is now, also, an English word, and English allows words to be sliced up and reassembled according to simple rules. Hence, "choate", "pre-choate" (perhaps soon "prechoate", with use), "ultra-choate", and "quasi-choate" are all permissible. In time, "choative" or "choational" might achieve currency, and it would not be a bad thing, howsoever unlikely.

  24. Nathan Myers said,

    November 4, 2009 @ 5:43 pm

    dwmacg: "Gruntled" has a jokey quality precisely because it is a funny word, just as is the name of the seed company, Burpee. That says nothing about "choate", which is definitively not funny, despite the (usual?) "k" sound.

    (There is a claim that jokes are always funnier when they involve a word containing the letter K.)

  25. marie-lucie said,

    November 4, 2009 @ 6:09 pm

    "Gruntled" has a jokey quality precisely because it is a funny word

    I am not a native speaker, but to me disgruntled sounds like a pleonasm, because of the negative prefix dis- attached to a stem which calls to mind grunt and grumble, both of which indicate displeasure. I find it difficult to think of gruntled as indicative of a positive emotion, so gruntled with a good meal sounds at least unusual. Only a dedicated curmudgeon would react to a good meal and good conversation with grunting or grumbling.

  26. empty said,

    November 4, 2009 @ 6:42 pm

    "gruntled" as a word for "contented" makes me think of pigs

  27. Simon Cauchi said,

    November 4, 2009 @ 6:42 pm

    @Nathan Myers: where is the fallacy in drawing attention to the etymology of "inchoate"?

    The neologism "choate" arises out of a misunderstanding. The "in-" of "inchoate" is the intensifier in-, not the negative. Like the in- of "inflammable".

    Now the fireman-linguist Whorf had a good reason for coining the neologism "flammable": lives might be lost because of the misinterpretation of an ambiguous prefix. But I can see no good reason for "choate". Long may the dictionaries continue to exclude it!

  28. Lazar said,

    November 4, 2009 @ 7:45 pm

    MBM: Yes, it seems that that's the predominant uninformed definition of passivity. I once had a professor who went so far as to say that any sentence with "is" is passive and should be avoided when possible.

  29. Nathan Myers said,

    November 4, 2009 @ 8:13 pm

    Simon: The fallacy is in imagining that the English word "inchoate" remains somehow roped to the Latin word it was borrowed from. I don't speak Latin, and I have no practical reason to care what Latin speakers, if indeed there really are any outside the Vatican, would think. Borrowed words, once borrowed, go their own way. I happily use "gruntled". While I still savor the back-formation, my kids won't until I explain it to them.

    I also say "whiles", and snigger at people who insist on pronouncing the "t" in "often". It's been a long time since English was subsidiary to Latin as a world language.

  30. Philip Spaelti said,

    November 4, 2009 @ 8:30 pm

    Why are people going on about the etymology of "(in)choate" talking about whether it makes sense in Latin? Surely, to be consistent, you should be talking about whether it makes sense in Greek?

  31. Lazar said,

    November 4, 2009 @ 8:49 pm

    @Philip Spaelti: Because "inchoate" is not a Greek word, it's a native Latin word: http://www.etymonline.com/index.php?search=inchoate&searchmode=none . Don't let the "ch" fool you.

  32. Simon Cauchi said,

    November 4, 2009 @ 9:04 pm

    According to the Concise Oxford Dictionary of Etymology, "inchoate" is from Latin inchoatus, pp. of inchoare, incohare, begin. I can't find any related word beginning iota nu chi in my Abridged Liddell and Scott. "Inchoate", so far as I can see, is quite unrelated to "chaos".

    Nathan: I quite agree with you that English is English and Latin is Latin and never the twain shall meet, and I too say "often" without pronouncing the t and had to repress a snigger when I heard a curate pronounce the t in "epistle". But let us agree to disagree about "inchoate".

  33. Nathan Myers said,

    November 4, 2009 @ 10:03 pm

    Simon: Truce. I doubt you will ever be in danger of finding teenagers saying "choate" while not knowing how etymologically transgressive it is. Likewise, you will probably never find anyone saying "tense" thinking it means the opposite of "intense". I suspect "choate" did escape from a joke into the well-fenced law-school grounds.

  34. marie-lucie said,

    November 4, 2009 @ 10:53 pm

    empty: "gruntled" as a word for "contented" makes me think of pigs

    Yes, that too! Is this the kind of reaction one would want to encourage in a guest invited for a meal and conversation?

  35. Jean-Sébastien Girard said,

    November 5, 2009 @ 12:13 am

    "Is this the kind of reaction one would want to encourage in a guest invited for a meal and conversation?"

    What about those cultures where burping after a meal is the polite thing to do?

  36. Tom Ace said,

    November 5, 2009 @ 2:22 am

    From a dissent in this week's ruling in Arar v. Ashcroft:

    ' In refusing to credit Arar's allegations, the majority cites the complaint’s use of the “passive voice” in describing some of the underlying events. See Maj. Op. at 25. This criticism is odd because the occasional use of the passive voice has not previously rendered pleadings defective, particularly where the defendants’ roles can be easily ascertained from the overall complaint. '

    see p. 148 of the PDF document at http://www.ca2.uscourts.gov/decisions/isysquery/ce25fb30-e6fc-466e-b585-518791d70608/1/doc/06-4216-cv_opn2.pdf

  37. JonW said,

    November 5, 2009 @ 6:01 am

    Some comment on gruntled and disgruntled. http://www.worldwidewords.org/qa/qa-dis1.htm

    This does raise an interesting question- how long does a word need to be out of common use before it ceases to be a word?

  38. Aaron Davies said,

    November 5, 2009 @ 6:16 am

    @JonW: and what about the distinction between "archaic" and "obsolete"? there are probably several dozen (if not hundred) words that most people never use outside of reading from a KJV bible or a Shakespeare play, but that everyone recognizes immediately.

  39. A p said,

    November 5, 2009 @ 8:12 am

    The opinion was likely drafted by a clerk, not the justice himself. I'm not sure how that impacts the discussion – my perception is that active/passive voice became a hot topic in high school English over the past 15 years but it seems the topic was poorly taught and/or poorly learned. So maybe a young clerk or two were trying to do a bit of pedantics and got it wrong.

  40. Nathan Myers said,

    November 5, 2009 @ 8:03 pm

    I'm fascinated at

    Now a second grammatical term, frequentative (or frequentive if you prefer). This is a trick of word formation, now obsolete, in which an ending created a verb to suggest that some action is often repeated. The one used for this most often is -le. So curdle is the frequentative of curd, gamble that of game and sparkle of spark. The verb gruntle is the frequentative of grunt.

    It will make me look at "-le" words in a new way. There are a bunch of new ones I intend to try to put into currency. Do we engage in wordling here at LL?

  41. Bloix said,

    November 5, 2009 @ 8:15 pm

    empty and marie-lucie are absolutely right that disgruntled is about pigs.

    Start with grunt. We all know what that means. From grunt we get gruntle, which is the frequentative of grunt. Frequentatives are verbs that mean repeated or continuous activity, and they're very common particularly with onomatopoetic words: mumble, grumble, sparkle, twinkle, babble, gurgle, tinkle, speckle, topple, tipple, dribble, etc. Many words that don't seem at first to be frequentatives really are (wrestle, wrinkle, shuttle, pimple), but gruntle is an easy example: it means the repeated soft grunting sounds made by a contented pig, particularly by a nursing sow. It's what pigs do instead of purr. ("Gruntle" also means snout, and "gruntling" means a young hog, but let's stick to the verb.)

    So if a pig – and in particular if a sow that, for reasons of illness or injury, isn't nursing properly – isn't gruntling, it's disgruntled.

    And disgruntled is my absolute number one favorite word in the entire English language.

  42. Bloix said,

    November 5, 2009 @ 8:33 pm

    Ah, I see I've been beaten to the punch. It happens when you start a comment and then get distracted by actual work.

  43. Carl Offner said,

    November 5, 2009 @ 9:22 pm

    My father, who studied quite a bit of Latin in high school and college, remembered a number of Latin-student jokes of his day, one of which was

    piggo, piggere, squeali, gruntus

  44. dr pepper said,

    November 5, 2009 @ 11:57 pm

    Hmm. I don't remember where, but i read somewhere that "disgruntled" means a state of mind leading to grunting. The same source also said that "dis', like the "in" in "inflammable" already mentioned, is not the negative, and therefor "gruntled" means th same thing.

  45. James Kabala said,

    November 6, 2009 @ 11:11 am

    George Amis: It was an amusing slip because Choate was a prominent nineteenth-century family of Boston lawyers.

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