stare decisis

Oblique view of the front facade of the US Supreme Court building in Washington, DC. A portico lined with marble columns with the words “Equal Justice Under Law” inscribed above them. A statue of a seated lawgiver holding a tablet is in the foreground.

29 June 2022

Stare decisis is the Latin name of a legal principle that is defined in Black’s Law Dictionary as follows:

stare decisis (stahr-ee di-sI-sis or stair-ee) n. (Latin “to stand by things decided”) (18c) The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.

Stare decisis is essential to the rule of law. Without the stability of a consistent application, the law is determined by the whims of individual jurists, and individuals cannot rely upon it. In the 1992 Supreme Court decision in Planned Parenthood v. Casey, Justice Sandra Day O’Connor laid out the three considerations for determining whether stare decisis should be cast aside and a prior decision overturned: Has the old rule become impractical? Do people rely on the old rule in such a way that overturning it would lead to more harm than good? And is the old rule still even relevant? O’Connor wrote:

Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an “inexorable command,” and certainly it is not such in every constitutional case [….] Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability […]; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation […]; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine […]; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.

(For ease of reading, I have omitted O’Connor’s citations to prior cases here.)

According to O’Connor’s test, even if a judge believes a prior decision to have been wrongly decided they should not necessarily overturn it. For instance, if a judge believed that the US Supreme Court decision permitting same-sex marriage (i.e., Obergefell v. Hodges) was wrongly decided, allowing same-sex marriage is still practical and relevant, and the harm caused to the hundreds of thousands who have relied upon the decision and gotten married would outweigh the de minimis harm in keeping the decision in place.

Stare decisis is not an idiom found in classical Latin, having been invented in the seventeenth century—not the eighteenth as Black’s incorrectly indicates. It appears in the record of a legal case decided by a British court in 1673:

It being moved again this Term, Hale consented that it should be reversed according as the latter Presidents have been; for he said it was his Rule Stare decisis.

It is used as a verb in another case, this one from 1735. While in Latin stare decisis is grammatically a verb phrase, in English usage it is almost always a noun phrase. This is an exception to the usual trend:

Whatever therefore my first thoughts were, and how much soever the law of executors wants alteration; we think, that as to the two bonds which were forfeited, the defendant must have an allowance for the penalties: and we must stare decisis.

And it is occasionally applied to contexts other than legal litigation. In this one, it is used in the context of politics. From an account of the debate in the Irish House of Commons from 1800:

From the first moment of the French war, the horror of innovation has been the Minister’s first principle. Stare decisis and non quieta movere has been the cant of the cabinet. This sentiment has been able to resist every improvement, however necessary, and to push every abuse, however odious. This sentiment has justified Mr. Pitt in suspending, if not deserting, his early politics of Parliamentary Reform.

Casting aside stare decisis without due consideration is a marker of an activist judge who is taking on the role of a politician and legislator, rather than that of a jurist.

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Sources:

Black’s Law Dictionary, eleventh edition, 2019. Bryan A. Garner, ed. Thomson Reuters Westlaw, s.v. stare decisis.

Oxford English Dictionary, third edition, June 2016, s.v. stare decisis, phr.

“Planned Parenthood of Southeastern PA. v. Casey.” Cases Adjudged in the Supreme Court at October Term, 1991. United States Reports, vol. 505. Washington: US Government Printing Office, 1996, 854–855.  

A Report of the Debate in the House of Commons of Ireland on Wednesday and Thursday the 15th and 16th of January, 1800. Dublin: James Moore, 1800, 61. HathiTrust Digital Archive.

Strange, John. Reports of Adjudged Cases, vol. 2. London: Henry Lintot for William Sandby, 1755, 1035. HathiTrust Digital Archive.

Ventris, Peyton. Reports. London: Richard and Edward Atkyns for Charles Harper, 1696, 243. Early English Books Online.

Photo credit: Daderot, 2008. Public domain image.

tow-headed

Pastel on cardboard painting of a tow-headed boy, wearing a black coat with gold buttons and seated on a chair.

27 June 2022

The adjective tow-headed usually refers to someone, especially a child, with light-colored or tousled hair. Tow, in this context, means flax or fiber used for spinning and ropemaking. Tow is typically a light brown or blond, hence its use to refer to that color of hair. The phrase is commonly reanalyzed and misspelled as toe-headed because the root tow is seldom used nowadays.

Tow can be traced to the Old English *tow, found in compounds like towcræft (weaving-skill), towhus (weaving-house), and towlic (related to weaving). The Old English word is likely related to the Old Norse to, also meaning unworked fiber.

While the root is found in Old English compounds, it does not appear as a standalone word in the extant Old English corpus. The standalone word isn’t recorded until the mid fourteenth century, when it appears in the Accounts of the Clerk of the King’s Ships for 1358–59. It appears as an English word, one of two, in a Latin record:

Et in CCC.lb. de towe, vjxx, fassibus straminis. xiij.Mill. de wyuelyng emptis per predictum tempus pro factura et reparacione nauium et batellorum Regis predictarum—vj.li.x.s.ij.d. sicut continetur ibidem. Que quidem towe stramen et wyueling computat expendisse super factura. Que quidem towe, stramen, et wyuelyng computat expendisse super factura et reparacione earundem nauium et batellorum per tempus predictum sicut continetur ibidem.

(And about 300 lbs. of tow, 6 score[?] bundles of straw, 13 thousand of weveling [caulking material] bought at the aforesaid time for the construction and repair of the previously mentioned ships and equipment of the king. that are being maintained in that place —6.pounds.10.shillings.2.pence. And indeed, the tow, straw, and weveling are reckoned in the expense for the above construction and repair of the same ships and equipment during the aforesaid time that are being maintained in that place.)

The use of tow-head to refer to a person, however, doesn’t appear until the early nineteenth century and appears to be an Americanism. The word appears in Noah Bisbee’s 1808 play The History of the Falcos and refers to a stupid person, an early example of the stereotype of a ditzy blonde:

But I do not believe yet, as contemptible as I think him, that he is such a tow-head, that he can be twice deceived in one day, by the same persons.

And tow-headed, describing children, appears in the Connecticut Mirror of 4 January 1819:

And a funny time they have of it, I dare say; for while the farmers among them are snoring away, draming of their wives and little tow-headed spalpeens at home, the jantilmen and the rakes are tripping their feet in the buoyant dance with their wives and sweethearts.

Spalpeen is Irish English for a boy, a rascal, or a laborer. Here the meaning is that of a child.

And there is the following from the Salem Gazette of 6 September 1825. The story was reprinted in multiple newspapers of the day and seems to have originated in the New York Commercial Advertiser, although I have not found the relevant issue of that paper:

One of the company accosted him, and inquired how the sheep could feed where the stones were so thick? “Why we sharpen their noses, how do you think?” replied the lad. Another said, “My boy, your corn looks very yellow.” “Why you damned fool, we planted yellow corn!” replied the tow-headed urchin, who was evidently something of a wag.

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Sources:

Bisbee, Noah. The History of the Falcos. Walpole, New Hampshire: Observatory Press, 1808, 3.2. ProQuest.

Bosworth, Joseph and T. Northcote Toller. An Anglo-Saxon Dictionary, with supplement. Oxford: Clarendon Press, 1921, s.v. tow-cræft, n., tow-hus, n., tow-lic, adj.

“The Carrier of the Connecticut Mirror to his Patrons, January 1, 1819.” Connecticut Mirror (Hartford), 4 January 1819, 1. Readex: America’s Historical Newspapers.

“From the N.Y. Commercial Advertiser: Letter From a Traveller in New England.” Salem Gazette (Massachusetts), 6 September 1825, 1. Readex: America’s Historical Newspapers.

Middle English Dictionary, 2019, s.v. tou, n.(1).

Oxford English Dictionary, second edition, 1989. s.v. tow, n.1.

Sandahl, Bertil. Middle English Sea Terms, Vol. 1. The Ship’s Hull. Essays and Studies on English Language and Literature 8. Upsala: A.-B. Lundequistka, 1951, 177.

Image credit: Olga Boznańska, before 1940. Public domain image.

toe the line / toe the mark

2007 photo of US soldiers of the First Cavalry Division toeing the line. A line of soldiers standing at attention, wearing camouflage uniforms, boots, and cavalry spurs (the latter worn for effect rather than any practical purpose).

24 June 2022  

To toe the line or toe the mark is to meet a standard or come into conformance with expectations, to obey. The metaphor from which the phrase springs is that of soldiers standing or marching in formation, their toes arrayed along an imaginary line—the earliest appearances of the phrase are in military contexts. Often dictionaries will give the metaphor of runners at the start of the race, and while that is an apt metaphor, it’s not the original one. The phrase is often reanalyzed and misspelled as tow the line, which draws upon a different, and in this case nonsensical, metaphor, that of pulling a rope.

We see the military context in the earliest use of the phrase in a 1738 account of life in the British army by John Railton. In this passage, Railton describes the qualities that a good military leader should possess and opines that a good leader is not just a bully:

To deserve the Name of a complete, thorough-disciplin’d Soldier, a Man ought to be endued with more extraordinary Qualifications than those of crying, Silence, you Dogs, toe the Line, you Puppies; Corporals, take such and such Rascals to the Black-hole, or Savoy, see that they are double iron’d, let them have nothing but Bread and Water.

And the underlying metaphor is made clear in the following passage, which is from a drill manual written by a Thomas Pickering in 1775 for the fledgling colonial militias being formed to fight the British in the American Revolution. Here he describes how soldiers should execute a wheeling motion while marching:

Illustration from Pickering’s 1775 Easy Plan of Discipline for a Militia showing the lines soldiers must toe when marching in a wheeling motion.

The different lengths of their steps are shewn by the lines c g, c h, &c. for at their first step they must all bring their toes to the line c g, at the second step they toe the line c h, at the next the line c i, and so on, till they all arrive at c m at the same time.

And we see toe the mark used in a metaphorical context in this piece from the Washington Federalist of 23 January 1802:

Doctor Eustis, with some impatience, said the Tripolitan bill must pass, expense or no expense, or democracy was knocked on the head in New England. Mr. Varnum said nothing could be expected unless the chairman of the select committee who brought the bill could toe the mark well. Could any man, said he, lighting up a smile on his delightful countenance, could any man but myself carried through the army bill?

A year or so later, the Connecticut Courant published a 19 December 1803 letter by a Roger Skinner which describes a 1799 conversation in which the phrase was used. We have to take the 1799 date with a grain of salt. Memories of the exact language that had been used in a conversation are always suspect, and Roger Skinner was not present for this particular conversation, making it at best a second-hand recollection. The General Skinner mentioned in the conversation is Roger Skinner’s father, who had expressed doubt about the Adams administration to a group of Adams supporters. If the phrase was indeed actually used in the 1799 conversation, the fact that these are military men would be telling. It seems plausible that Roger Skinner had heard his father use the phrase on other occasions and inserted it here as words his father would likely have said:

The first word that was uttered after he came in was by Gen. Tracy to Mr. Allen, “Gen. Skinner does not seem to toe the mark with us.”

Finally, we see toe the line used in a New Year’s poem published in Maine’s Portland Gazette of 4 January 1813. The use of chalk’d gives away the metaphor:

Wonders quite curious—and new;
The budget open’d, out these flew
Accounts of battles—horrid rumours,
With patent medicine for tumors,
Law matters, Puffendorf and Vattel
Concerning Nations when in battle.
Also new rules to toe the line,
Chalk’d by the watchful SIXTY NINE,
Shewing to Irishman the risk he
Incurs in taking grog or whiskey.

I don’t know what the sixty-nine refers to here. If anyone has any idea (and no, it certainly does not mean THAT; get your mind out of the gutter), I would love to hear it.

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Sources:

“For the Washington Federalist.” Washington Federalist (Georgetown, District of Columbia), 23 January 1802, 2. Readex: America’s Historical Newspapers.

“New Year’s Address for 1813.” Portland Gazette (Maine), 4 January 1813, 3. Readex: America’s Historical Newspapers.

Oxford English Dictionary, second edition, 1989, s.v. toe, v.

Pickering, Timothy. An Easy Plan of Discipline for a Militia. Salem, Massachusetts: Samuel and Ebenezer Hall, 1775, 53n. Eighteenth Century Collections Online (ECCO).

Railton, John. The Army Regulator: or, the Military Adventures of Mr. John Railton. London: W. Warner, et al., 1738, 120. Eighteenth Century Collections Online (ECCO).

Skinner Roger. Letter (19 December 1803). Connecticut Courant (Hartford), 8 February 1804, 1. ProQuest Historical Newspapers.

Tréguer, Pascal. “Meaning and Origin of the Phrase ‘To Toe the Line.’” Wordhistories.net. 2 April 2017.

Image credits: Nathan Hoskins, 2007, US Army photo, public domain image; Detail of Plate #1 of Pickering’s An Easy Plan of Discipline for a Militia, 1775, public domain image.

tip

A tip left at a cafe in Spain. An empty glass of beer sits on a table next to a bill for €4.20 and €5.00 left in payment. (A rare case where the European practice of leaving spare change as a tip corresponds in value to the North American one of leaving 15–20% of the bill as a tip.)

22 June 2022

The word tip has multiple meanings in English. Here I am focusing on the sense of to give either a piece of information or a small sum of money—in the latter case, particularly to a servant or service worker—as well as the noun associated with that verb. The word comes out of early seventeenth-century criminal cant, which may confirm the opinions of those who object to the American practice of tipping service workers. Why those long-dead criminals choose tip to mean this is unknown. It may be due to an older sense of to tip meaning to tap or touch lightly, but any connection is tenuous and uncertain.

The word is first recorded as a verb in a number of slang and cant dictionaries. The earliest that I know of is in Samuel Rid’s 1610 Martin Mark-All, Beadle of Bridewell, which includes a cant dictionary containing corrections to an earlier, lost lexicon. The meaning of tip here is simply to give, often but not necessarily associated with money:

Chates, the Gallowes: here he mistakes both the simple word, because he so found it printed, not knowing the true orginall thereof, and also in the compound; as for Chates it should be Cheates, which word is vsed generally for things, as Tip me that Cheate, Giue me that thing: so that if you will make a word for the Gallous, you must put thereto this word Treyning, which signifies hanging; and so Treyning Cheate is as much to say, hanging things, or the Gallous, and not Chates.

And it also has this entry:

Tip a make ben Roome Coue, giue a halfepeny good Gentleman.

Elisha Coles’s 1677 dictionary includes this phrase:

Tip the cole to Adam Tiler, s. give the (stoln) money to your (running) Comrade.

The parenthetical words are in the original.

And the 1699 New Dictionary of the Canting Crew has this:

Tip, c. to give or lend; also Drink and a draught. Tip-your Lour, or Cole or I'll Mill ye, c. give me your Money or I'll kill ye. Tip the Culls a Sock, for they are sawcy, c. Knock down the Men for resisting. Tip the Cole to Adam Tiler, c. give your Pick-pocket Money presently to your running Comrade. Tip the Mish, c. give me the Shirt. Tip me a Hog, c. lend me a Shilling. Tip it all off, Drink it all off at a Draught. Don't spoil his Tip, don't baulk his Draught. A Tub of good Tip, (for Tipple) a Cask of strong Drink.

The noun, meaning a gratuity given to a servant, is in place by the mid eighteenth century. This particular subsense undoubtedly developed from the more general cant sense described above. The following letter appeared in the 29 May 1755 issue of The Connoisseur:

Dear Mr. Town,
I have been happy all this winter in having the run of a nobleman’s table, who was pleased to patronize a work of mine, and to which he allowed me the honour of prefixing his name in a dedication. We geniusses [sic] have a spirit, you know, far beyond our pockets: and (besides the extraordinary expence of new cloaths to appear decent) I assure you I have laid out every farthing, that I ever received from his lordship, in tips to his servants. After every dinner I was forced to run the gauntlet through a long line of powdered pick-pockets; and I could not but look upon it as a very ridiculous circumstance, that I should be obliged to give money to a fellow, who was dressed much finer than myself. In such a case, I am apt to consider the showy waistcoat of a foppish footman or butler out of livery, as laced down with the shillings and half-crowns of the guests. I would therefore beg of you, Mr. Town, to recommend the poor author's case to the consideration of the gentlemen of the cloth; humbly praying, that they would be pleased to let us go scot-free as well as the clergy: for though a good meal is in truth a very comfortable thing to us, it is enough to blunt the edge of our appetites, to consider that we must afterwards pay so dear for our ordinary.
I am, Sir, Yours, &c.
Jeffrey Barebones.

The writer’s sentiment is shared by many today. One can be in favor of service workers being paid a living wage without supporting the notion that the wage should come via the charity of customers rather than from the employer’s profits.

And the sense of the noun meaning a piece of information is in place a century later. The magazine The Athenӕum of 4 October 1845 has this complaint about publishers selling students the answers to their homework questions:

Xenophon’s Expedition of Cyrus: Books I. II. III. Translated literally, &c. for the use and advantage of Students.—Of such books as this, (“tip-books” as school-boys call them,) though they are generally used, we doubt the value. They may enable the boy to get easily through his lesson; but they must leave him nearly as ignorant of a language as before he commenced. It is books like this that make sound scholarship almost unknown among us.

While students may no longer refer to Cliff Notes and their ilk as tip-books (or tip-sites given we’re in the internet age), the practice is alive and well to the frustration of teachers everywhere.

Finally, the notion that tip is an acronym meaning to insure prompt service is utterly false, as we have seen. Whenever one hears an acronymic origin, one should immediately question it. Most stories of acronymic word origins are false.

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Sources:

B.E. A New Dictionary of the Canting Crew. London: for W. Hawes, et al., 1699, sig. M2. Early English Books Online (EEBO).

Coles, Elisha. An English Dictionary. London: Peter Parker, 1677. Early English Books Online (EEBO).

The Connoisseur, 29 May 1755, 417. Eighteenth Century Collections Online (ECCO).

Lexicons of Early Modern English, 2021.

“Our Library Table.” The Athenӕum, 4 October 1845, 964. HathiTrust Digital Archive.

Oxford English Dictionary, second edition, 1989, s.v. tip, v.1; tip, v.4; tip, v.5; tip, n.3; tip, n.4.

Rid, Samuel. Martin Mark-All, Beadle of Bridewell. London: John Windet for John Budge and Richard Bonian, 1610, sig. E2, E4. Early English Books Online (EEBO).

Photo credit: Adeeto, 2015. Licensed under a Creative Commons Attribution-Share Alike 4.0 International license.

Juneteenth

A band at a Juneteenth celebration, Austin, Texas, 1900

20 June 2022

Juneteenth is celebrated on 19 June and is, obviously, a blend or portmanteau of June + nineteen. It commemorates the date in 1865 when Major General Gordon Granger of the Union army freed the slaves in Galveston, Texas. Lincoln’s Emancipation Proclamation had legally freed the slaves in all the rebelling states as of 1 January 1863, but the order was, of course, not carried out immediately, and the far reaches of Texas were one of the last places where Union forces could enforce the order. So, Juneteenth celebrates the freeing of the last slaves in the United States.

The earliest extant use of Juneteenth is a line the Galveston Daily News of 22 May 1890 that quotes the Black newspaper the Beaumont Recorder (date unknown):

For Galveston to send abroad for orators for its coming “Juneteenth” is like carrying coal to Newcastle. There are about as good speakers—persons who know all about English as she is spoke—in the city by the sea as anywhere.

In the nineteenth century, Juneteenth celebrations were largely confined to Texas. Here’s a description of the 1892 celebration in Galveston that appeared in the White Galveston Daily News of 18 June 1892. Despite the racist language, it gives a nice description of the events and is notable in that it shows that complaints about the commercialization of celebrations such as this are not a recent phenomenon:  

The glorious “Juneteenth” began to be celebrated by the colored people to-day. A procession composed of a brass band, decorated float containing the goddess of liberty and attendants, orators and distinguished visitors in carriages, and a number of baseball nines on foot, was formed at noon and marched to the fair grounds, where there was speaking, amusement for children, coronation of the goddess of liberty and baseball, ending with a ball at night. The celebration will continue through to-morrow and the next day.

There was not much of a crowd in from the country, and a good many of the town darkies declined to have anything to do with the celebration, for they say they can’t see the use of celebrating the 17th and 18th, because Emancipation day is the 19th, and in addition to this they charge the management is running the thing for the money there is in it and they don’t think that the day of freedom should be utilized in that way.

During the twentieth century, especially as a result of the Great Migration of Blacks from the South to the North and West, Juneteenth began to be celebrated by Black communities throughout the United States. Texas made it an official state holiday in 1980, and over the following decades most other states followed suit. Juneteenth became a federal holiday in 2021.

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Sources:

“A Free Summer Normal.” Galveston Daily News, 18 June 1892, 1. Gale Primary Sources: Nineteenth Century U.S. Newspapers.

Oxford English Dictionary, third edition, September 2004, s.v. Juneteenth, n.

“The State Press.” Galveston Daily News, 22 May 1890, 4. Gale Primary Sources: Nineteenth Century U.S. Newspapers.

Photo credit: Grace Murray Stephenson, 19 June 1900, Portal to Texas History, Austin Public Library.