Barzun in the Courts

“In Favor of Capital Punishment” has appeared in two important Supreme Court cases: Justice Marshall disagreed with the article’s assertion that life imprisonment could be worse than death, citing it twice in Furman v. Georgia, 408 U.S. 238, 345 n.90, 356 n.129 (1972), and Justice Clark cited it in a concurring opinion in Gideon v. Wainwright to make the point that “not everyone thinks that deprival of liberty may be less onerous than deprival of life.” 372 U.S. 335, 349 & n.3 (1963).

Judges have referred directly to some of Barzun’s books or displayed a general familiarity with them. Associate Justice McDonald cited The American University as support when he wrote that “for many university professors, research has the highest priority, sometimes to the complete exclusion of teaching.” Roby v. Conn. Gen. Life Ins. Co., 349 A.2d, 838, 842 (Conn. 1974). In King v. Burris, a case about a dispute that occurred at a baseball club meeting, Judge Kane quoted, to humorous effect, Barzun’s famous statement about baseball. 588 F. Supp. 1152, 1157 n.7 (D. Colo. 1984). Judge Karlton, in Ortiz v. Bank of America, a discrimination case, opened his opinion with this quotation from Race: A Study in Superstition: “No argument has ever been advanced by any reasonable man against the fact of differences among men. The whole argument is about what differences exist and how they are to be gauged.” 547 F. Supp. 550, 551 (E.D. Cal. 1982). “The facts of this case will intrigue those who fondly remember John Charles Nesbitt's Passing Parade as well as Alexis de Tocqueville, Jacques Barzun and other observers of the American scene,” is the opening line of a case about the consequences of making some unfortunate jokes during an airport screening. Bauge v. Jernigan, 669 F. Supp. 348, 350 (D. Colo. 1987). In a ruling saying that Lady Chatterley’s Lover was not obscene for the purposes of a statute forbidding the mailing of obscene matter, Judge Moore wrote that “certain critics, apparently for years unconcerned with it absent the vulgarisms and the questionable scenes, now hail the book as a great contribution to our literary heritage,” clarifying in a footnote that he does “not imply that the views of Jacques Barzun, Edmund Wilson, Archibald MacLeish, and other critics mentioned by the majority, are not entitled to consideration and respect. My point is simply that literary critics generally do not represent that hypothetical character, the average reader.” Grove Press, Inc. v. Christenberry, 276 F.2d 433, 439 & n.1 (2d Cir. 1960). In United States v. Worcester, a probation matter, the judge referred to John Jay Chapman’s Selected Writings, edited by Barzun (he also quoted William James, mentioned Emerson, and cited Santayana’s Dominations and Powers!). 190 F. Supp. 548, 571 (D. Mass. 1961).

Justice Scalia cited Barzun’s article, “What is a Dictionary?” to impugn the authority of Webster’s Third New International Dictionary, which the petitioners were relying on to define the word “modify” as “to fundamentally change.” (The entire passage will likely be of interest to fans of Barzun’s writings on usage). MCI Telecomms. Corp. v. Amer. Tel. & Tel. Co., 512 U.S. 218, 228 n.3 (1994). But note that in Kaplan v. Northwestern Mutual Life Insurance Co., the judge quoted a definition of ‘during’ from the same dictionary, which apparently pulled from one of Barzun’s works for an example to show that the word can mean “at some point in the course of.” 65 P.3d 16, 26 (Wash. Ct. App. 2003).

The 1966 edition of Modern American Usage has been called on many times. Chief Judge Lay quoted one of its articles to disapprove of the lower court’s use of the phrase “and/or” in Praprotnik v City of St. Louis, 798 F.2d 1168, 1173 n.3 (8th Cir. 1986), and it was also used to determine the meaning of the phrase “as of” in a statute that defined the “required policy period” of an auto insurance policy as “a period of three years from the date as of which a covered policy is first issued or is voluntarily renewed.” The dispute was whether it referred to the date the policy was executed or the date the policy became effective. Judge Leval cited Modern American Usage, which supported the latter reading. Rosner v. Metro. Prop. & Liab. Ins. Co., 236 F.3d 96, 100 (2d Cir. 2000). The federal court certified the question to the New York Court of Appeals, where Judge Graffeo cited the same passage and agreed with the book’s article that “as of is justified only as a device for assigning an event to one time and the report or recognition of it to another.” Rosner v. Metro. Prop. & Liab. Ins. Co., 754 N.E.2d 760, 763 (N.Y. 2001). It has also been used to resolve questions about the proper use of a semicolon and the word ‘would.’ (Commonwealth v. Jean-Pierre, 837 N.E.2d 707, 709 n.3 (Mass. App. Ct. 2005); People v. Malloy, 403 N.E.2d 1221, 1223-24 (Ill. App. Ct. 1980)).

Even From Dawn to Decadence has already been cited twice. In Oriola v. Thayer, Justice Kline, after writing that “ ‘dating relationship’ usually refers to a ‘romantic,’ as opposed to a ‘platonic’ relationship between two people,” recommended in a footnote that “an interesting disquisition on the use of the word ‘romantic’ in the English language, which goes back to the seventeenth century,” could be found in From Dawn to Decadence. 100 Cal. Rptr. 2d 822, 830 & n.7 (Cal. Ct. App. 2000). In State v. Ciancanelli, Chief Judge Brewer asked, “if we find a spate of antiquarian American and colonial statutes and ordinances banning plays and theater altogether, have we found yet another historical exception to free expression? Our adherence to historical baggage of the latter sort inevitably will lead to results that make no sense.” In the footnote to this, he said, “the thought is absurd only in hindsight,” and quoted this passage:

Until the 1760’s no native professional theater existed — no actors, singers, or dancers, and no playhouses. But the demand that did exist divided society. The perennial objection to the theater — harm to morals — was supported by local laws, and the Confederation Congress passed a resolution that classed under “extravagance and dissipation” gambling, horse-racing, cockfighting, and all “shows and plays.”

The dissipated were nonetheless served by an English troupe with David Douglass as actor-manager. He toured the colonies twice with his repertory of English plays by Farquhar, Mrs. Centilivre, Colley Cibber, and George Lillo, interspersed with ballad operas such as Arne's Love in a Village and Gay's Beggar's Opera. Some of Shakespeare, heavily improved and sometimes offered in thin slices, also figured on the programs. The people of Charleston loved plays and perhaps Boston did too, or why should a law have been passed there in 1750 to prohibit them?

45 P.3d 451, 473 & n.11 (Or. Ct. App. 2002).

Jason Rawnsley
University of Notre Dame Law School

The Jacques Barzun Centennial