Latin legal terms are unconstitutional?

« previous post | next post »

Some of the things that proponents of the English Only movement say strike me as pretty strange, but today I stumbled on a truly mind-boggling claim by Supremacy Claus, namely that:

All Latin violates the Establishment Clause, being the foreign language of a church.

The Establishment clause is the highlighted portion of the 1st Amendment to the US Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Mr. Claus does not explain how the use of Latin legal terms, such as subpoena and mandamus, serves to establish the Roman Catholic Church as the state church of the United States, which would no doubt be a pleasant surprise for the Vatican, or how it interferes with the free practice of any religion.

As a Jew and lifelong atheist, I can assure Mr. Claus that I have never felt that the use of Latin carried with it any pressure to adhere to the views or practices of the Roman Catholic Church. Nor have I have felt that Arabic terms like algebra are contaminated by the association of that language with Islam. By the same token, Christians, Muslims, and all the rest can safely use Hebrew words such as אמן amen, בהמות behemoth, and לויתן leviathan without any concern that they are thereby engaging in Jewish religious practice or are under pressure to adopt the Jewish religion.


  1. Jake said,

    May 24, 2009 @ 1:04 am

    English is the lingua franca of the Anglican church, so let's get rid of that in our courts.

  2. Ken said,

    May 24, 2009 @ 1:23 am

    Supremacy Claus, that unjolly old elf, visited my blog this weekend to rail against me for giving sexual harassment prevention seminars, for reasons that I don't feel I fully grasp. Part of his argument is that the entire concept of reasonableness (at issue in various ways in sexual harassment cases, not to mention in the entire corpus of Western law) is inherently religious because it is derived from Scholasticism. The implication of that, as far as I can tell, is that the Establishment Clause violates the Establishment Clause.

    And, yes, in researching him after reading his posts through the link I posted, I also learned he thinks Latin violates the Clause.

  3. Yuji said,

    May 24, 2009 @ 1:57 am

    Does it mean that we need to purge all words not originating from Proto-Germanic?

  4. dw said,

    May 24, 2009 @ 2:57 am

    The use of the Latin terms "cunnilingus" and "fellatio" in an old California anti-sodomy law was deemed unconstitutional in a 1919 case somewhat ironically titled "Ex parte Lockett".



  5. dw said,

    May 24, 2009 @ 2:58 am

    Whoops: second link should be:

  6. Jack H said,

    May 24, 2009 @ 3:12 am

    English is the language of the Church of England, so we can't use that either.

    I guess we have to switch to Esperanto.

  7. dw said,

    May 24, 2009 @ 3:33 am

    The use of certain Latin terms in an old California anti-sodomy law was deemed unconstitutional in a 1919 case somewhat ironically titled "Ex parte Lockett".

    Follow the links to see what the terms were (I included them in an earlier comment, which I suspect caused that comment to be blocked automatically):


    Note that the issue here wasn't whether the Latin terms violated the Establishment Clause, but whether they were comprehensible to the public.

  8. Lance said,

    May 24, 2009 @ 4:25 am

    If it helps: after reading the first page of posts on Supremacy Claus's blog, I'm not convinced that the site isn't a parody. At least, it seems to me to be either parody or the ravings of a madman.

  9. Supremacy Claus said,

    May 24, 2009 @ 7:43 am

    The blog is not a parody. It is the raving of a madman.

    Prof. Poser may use any language or symbol he pleases. It is even protected by the Free Exercise Clause.

    The Establishment Clause forbids the endorsement or suppression of a religion by the government. The Supreme Court has tried to attenuate the controversy and public uproar from absolutist decisions by allowing for tradition, expressions that are a little religious, but not a lot, opening prayers, swearing on the Bible. Its own Supreme Court building has a frieze with religious characters, so far left in place. So the Establishment Clause testing is fuzzy due to political calculation by the Court.

    When the Court calculates that retaliation against it is likely to be minimal, it has taken a hard stand against even stealthy expressions of religion. Moments of silence. Creationism stickers in public school science books. Crosses in city flags (representing a tourist attraction, not a religion, the city said).

    The public's view is as good as the Court's, and likely less driven by politics. So judge for yourself.

    Latin is only one aspect of the religious origin and methodology of the current law. Here are others, which are disturbing. They are unnecessary, add nothing to the validity of legal decisions. They prevent science from growing as a driver of legal decision making. These supernatural concepts promote subjectivity, unequal treatment, inaccuracy, and unfairness, as well as a single religious world view. Each of these anti-scientific failures violates another Amendment to the Constitution as well as the Establishment Clause.

    Here are other Church derived lawyer practices that violate the Establishment Clause more than a moment of silence in a public school.

    Prof. Poser grew up in this culture and has low awareness, as a fish has a low awareness of the water, having never seen air or land. Imagine the sudden and total substitution of Sharia and Arabic for the Catechism and Latin as the basis of the legal system of today. You would start to wonder about government endorsement more easily.

    In another comment, I may address the supernatural nature and religious origins of the core doctrines of the law today.

  10. Supremacy Claus said,

    May 24, 2009 @ 8:05 am

    DW: Great citation. A foreign expression violates procedural process right to proper notice of the law. In the criminal law, it also violates legality (Hudson, 1812). That means that crimes can only be defined by statute, and never by judge made common law, again to give proper notice.

    Given the reading level of the public, and definitely of the criminal, any legal utterance scoring above the sixth grade likely violates the right to proper notice.

  11. mollymooly said,

    May 24, 2009 @ 10:19 am

    Ignorantia juris non excusat.

  12. John Lawler said,

    May 24, 2009 @ 10:28 am

    Lex dubia non obligat.

  13. Dan T. said,

    May 24, 2009 @ 10:29 am

    Take Claus's statement: "All Latin violates the Establishment Clause, being the foreign language of a church. We need a statute voiding all legal utterances containing Latin, and canceling any severability in the legal utterance." As an exercise to the reader, count how many words in those sentences derive from Latin.

  14. Supremacy Claus said,

    May 24, 2009 @ 10:38 am

    The remarks on Latin are fairly self-evident. Only the Church uses Latin. No nation or ethnic group speaks it. Even Hebrew and Arabic are spoken by people and countries.

    Here is something harder. And comments would help.

    The word, reasonable.

    It is the most important, and most central word of American law. A judge will ask a jury to determine what is reasonable behavior, and to decide a verdict based on their opinion. The burden of proof in a criminal trial is "beyond a reasonable doubt." What is the standard of conduct for the reasonable professional, the reasonable female (in sexual harassment lawsuit), the reasonable home owner in a slip and fall case?

    The jury is not allowed to think about real people and their standards. So, you cannot base your opinion on what your sensible high school friend would do, nor on what your experienced and wise aunt would do. If a juror does, a mistrial is automatically called, it is that forbidden.

    The reasonable person must be a fictional character. Why? Because the standard of conduct of a fictional character is objective.

    Questions. Why use the word, reasonable, and not most logical, fair, rational, best cost-benefit analysis, scientifically validated, mainstream, most common, likely to establish order, good for society, average, median, etc.?

    Why can't the jury use the dictionary definition of reasonable or even the law dictionary definition?

    Why must the reasonable person be fictional to remain objective?

    Comments appreciated on this.

    The word, reasonable, had a specific technical meaning in Scholasticism, and to the monks that wrote the legal doctrines still in use today, taken from Scholasticism, St. Thomas Aquinas, and the Catechism. Henry of Bratton wrote the casebook containing most of the central doctrines, and studied under St. Thomas.

    Man fell from the Garden of Eden, committed Original Sin. His intellect, logic, and rationality can be misled by Deadly Sins. So the above terms can result in wrong moral decisions. Man must depend on his Reason. The most reliable source of Reason is the New Testament.

    So the word, reasonable, means, in accordance with the New Testament. The fictional character, the reasonable person, is a disguised Jesus Christ. You cannot tell a jury, what would Jesus do, because it is illegal. You can herd the jury toward that standard, leaving the name out.

    This is from 10th Grade World History and Western Civ 101. However, no lawyer knows this. Law school indoctrination makes them forget what they studied in high school and college. All the lawyers here will deny this meaning. They are covering up the deepest flaw of American law, but it accounts for its utter failure.

  15. marie-lucie said,

    May 24, 2009 @ 10:44 am

    We can't even substitute Greek words for Latin ones, since Greek is also the language of at least one church.

  16. Supremacy Claus said,

    May 24, 2009 @ 10:59 am

    Dan: Accepting your personal retort, I do not put people to death, nor do I transfer $billions from productive parties to rent seeking lawyers, using unlawful Medieval concepts. The Establishment Clause forbids the government from endorsing or suppressing religion. You and I can go to a Latin Only chat room, and Latin away. The government cannot use the language of a church.

  17. Supremacy Claus said,

    May 24, 2009 @ 11:02 am

    We are limiting the argument to the Establishment Clause. Greek is the language of a nation and of an American ethnic group, as Hebrew and Arabic are. If a valid governmental purpose is served by the use of Greek, the Establishment Clause does not bar it. We can argue against the use of a foreign language in the law, on other policy grounds, but not on Establishment Clause grounds.

  18. kenny v said,

    May 24, 2009 @ 11:18 am

    Mr. Claus, as a Classicist, I must take issue with this notion that Latin is a religious language at heart! The Romans were speaking perfectly secular Latin for centuries before Jesus came around (and for centuries afterwards!). It may be that most people who know Latin these days are priests, but I'll have you know that the vast majority of the rest–Classics professors–are atheists. And we love Latin, and use it all the time. The Latin legal terminology you seem to have a problem with derived not from any religious context, but from the secular institution of Roman law. You just said that "if a valid governmental purpose is served by the use of Greek, the Establishment Clause does not bar it." I admit that the use of Latin in the courts isn't really necessary, per se (oops, now I'm being Catholic, I guess), but legal Latin has nothing to do with the Catholic Church! I'm truly dumbfounded by your point of view.

  19. Dan T. said,

    May 24, 2009 @ 11:29 am

    How do you say "Nothing is gained by trying to reason with a madman" in Latin?

  20. Ken said,

    May 24, 2009 @ 11:46 am

    The reasonable person must be a fictional character. Why? Because the standard of conduct of a fictional character is objective.

    Mr. Claus, does the Fourth Amendment — which speaks of unreasonableness — violate the First Amendment?

  21. Supremacy Claus said,

    May 24, 2009 @ 11:58 am

    Ken: Thanks. Have fun chatting in Latin about your vacation trip to Ostia. Absolutely nothing wrong with that. But you will be re-enacting Roman life, not living it today, however fluent you are in Latin.

    The content of the Latin in the law is also derived from the Catechism, with some Roman law influences. The case book originating most of the central doctrines was written by a judge who was a monk first. He applied what he knew, religious concepts. He may have been influenced by Roman Law, but the terminology is copied wholesale from the Catechism.

    Without a prolonged discussion. You are an atheist. Each element of a crime must be proven to have "intent." (Just as mortal sin does.) Where in nature may I find intent? If you can find it, can two people looking at the same event, at the same time, agree it took place? If they can, where are the data showing 12 jurors really agreed, and were not caving in to get back home and to their jobs. None of these doctrines either exist as facts in nature, or none has reliability statistics, let alone scientific validation. These doctrines were advances in the 13th Century. Today, they are unacceptably obsolete.

    To its credit, even the Medieval Church believed God would judge intent in heaven. It never believed man could read minds on earth. Only the lawyer does.

  22. Supremacy Claus said,

    May 24, 2009 @ 12:04 pm

    Dan: I am not the one who believes in mind reading, the future forecasting of rare accidents. I do not believe 12 strangers, after excluding all with knowledge, can detect the truth by using their gut feelings. I do not believe the standard of conduct should be set by a fictional character with the overly careful personality of Mickey Mouse.

    If you want to meet real cuckoo, see your lawyer. They really believe that stuff and will impose it on us, at the point of a gun. Cuckoo and armed. The lawyer.

  23. Supremacy Claus said,

    May 24, 2009 @ 12:14 pm

    Ken: Until rebutted, all uses of the word, reasonable, offend the First Amendment. It is lawyer code for Jesus Christ.

    Why isn't a statistic used, for example, more likely than not to find illegal material, based on more likely than not truthful report of an informant, or a more likely than not good fingerprint match at the scene of a crime?

    You have to explain the odd word, reasonable, when more specific alternatives exist.

    Ken, I am reasonable. I forgive what your site did to me, yesterday, even though it was unfair to allow a person to get bashed behind their back, without an opportunity to reply.

  24. pgogborn said,

    May 24, 2009 @ 12:19 pm

    His name is Claus, in his about me he says he has got a famous cousin called Santa.

    Bill Poser, your present made his day.

  25. Dan Lufkin said,

    May 24, 2009 @ 12:24 pm

    A stroll through the Merriam-Webster Dict of Law reveals that the situation is even worse than Mr. Claus, Esq., asserts.

    There are a great many legal terms that are preserved [cliché alert] like flies in amber from Medieval French: chose, depeçage, cy pres,…. One might argue on the evidence of Québecois that Medieval French is still a viable language, but we are clearly on a [c.a. again] slippery slope.

    Back to our pure pre-Christian roots, then: trial by combat. A hólmgang between litigants would soon settle most legal disputes. We could even preserve the term hólmgang, Thor-worship having largely died out, except for Minnesota and North Dakota, where a separate law may be maintained, as is now the case with Louisiana.

  26. Lance said,

    May 24, 2009 @ 12:41 pm

    Given Mike's comment on this post ("Supremacy Claus" … is a revolting and well-known troll. I believe he has been banned from commenting at several web logs, including Appellate Law and Practice.), as well as the evidence SC has provided us with here, I think perhaps it's a good idea for us to just let him have the last word, deluded and incoherent though it may be, and perhaps for Bill to close off comments on this post.

  27. L.T. said,

    May 24, 2009 @ 12:52 pm

    The term constitution comes from a Latin term denoting an important law, usually one proclaimed by the Roman emperor ("constitutiones principis"). Later, the term was widely used in canon law for an important determination, especially by the Pope, which are now referred to as apostolic constitutions.

    I guess the US Constitution violates the Establishment Clause too.

  28. Faldone said,

    May 24, 2009 @ 1:09 pm

    Ecclesiastical Latin and Legal Latin are mutually incomprehensible dialects.

RSS feed for comments on this post