When Grammar Matters

We’re all familiar with the image of the crotchety grammarian, going off on some pet peeve or perceived a"abuse" of the language. Most of the time, these people can be either ignored, or, if they’re in a position of authority like a teacher or boss, temporarily accommodated. But occasionally, someone’s misinterpretation of grammatical principles can have real consequences. And when that misinterpretation is done by a US Supreme Court justice, the situation can be downright scary.

Anita Krishnakumar over at the blog Concurring Opinions has a posting on how the Supreme Court uses (what they think is) the passive voice to interpret statutes. At issue is the belief that sections of criminal statutes that outline the elements of a crime that must be proved in court are written in the active voice, while elements that merely affect the severity of sentences are in the passive. What the justices and Ms. Krishnakumar fail to realize, that in the cases in question, the entire statute is written in the passive voice. There is no differentiation at all.

The case of Jones v. United States (1999) the statute in question reads:

Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle [...] from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.

Justice Kennedy, in a dissent joined by three other justices, concluded that “there is some significance in the use” of the passive voice sections (2) and (3) are in the passive voice, and are therefore merely sentencing recommendations, while section (1) was active and therefore establish the elements of the crime that the prosecution must prove., and significance in the use of the active voice in the main section, and presumably in section (1). Exactly what Kennedy is labeling as passive is unclear.

There are three primary verb phrases in the statute. All three are identical and passive, “shall be fined under this title or imprisoned.” Kennedy may be mislabeling the first of these, which is split between the main section and sub-section (1), as active.

Alternatively, he could be referring to the other three verb phrases in the statute, which are all active. The first of these is part of the subject, “whoever [...] takes.” The other two are conditional clauses in sub-sections (2) and (3), “if serious bodily injury [...] results” and “if death results.” Kennedy may be mistaking the two conditional clauses for passive constructions.

In either case, Kennedy has screwed something up. He either mislabels a passive construction as active, or he mislabels two active constructions as passive. The trouble is, all three sections are passive ("shall be [...] fined"). Sections (2) and (3) introduce additional conditions, but there is no change in voice. Fortunately, in the decision of the court, Justice Souter gets the grammar right and correctly identifies the difference as conditional, not active v. passive.

Is it too much to expect that the Supreme Court of the United States, if they are to use linguistic analysis in deciding cases, understand the basic principles of grammar?

[Edited 5 November 2009. Hat tip to Geoffrey Pullum over at Language Log.]

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