Thursday, June 7, 2012

A Lamentable Thing To Undo A Man

Shakespeare knew that one of the easiest ways to get a laugh is to have someone make a totally absurd argument with complete conviction. Even better is if the argument is one that, although absurd, people are inclined to make. Example:

DICK THE BUTCHER:   First thing we do, let’s kill all the lawyers!

CADE:  Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o'er, should undo a man? Some say the bee stings: but I say, 'tis the bee's wax; for I did but seal once to a thing, and I was never mine own man since.
(Henry VI, Pt 2, IV.2)

I thought about Shakespeare’s fantastic feel for the absurdly serious while explaining the concept of “reductio ad absurdum” in class the other day. This rhetorical strategy usually involves pushing an argument to the extreme to show just how silly it is—how it is based on a false premise. Example: 

“‘Deficit reduction will inevitably create jobs,’ you say? Great! Why don’t we cut the state’s deficit by tearing up all contracts covering expensive government projects—like building roads, repairing bridges, and designing new public schools and hospitals. And while we’re at it, let’s reduce the deficit by eliminating funding for all public school teachers, state troopers, and health-care workers. We can further reduce the deficit by eliminating all unemployment benefits for these laid-off construction workers, teachers, troopers, sanitation workers, and nurses—which in turn means we can eliminate all of the state workers who are currently employed with state agencies charged with administering programs like these that the state used to fund. Wow. I can really see how cutting the deficit will lead to all sorts of job creation!”

This example is probably too snarky to count as a first-rate reductio ad absurdum. Besides, you may find it hard to believe that anyone would really make such an argument….

In any event, the connection between “reductio ad absurdum” and comedy occurred to me in the context of a class I was teaching that focused on some briefs filed in a famous, old case. This is a case that most everyone studies in the first year of law school: Joseph Lochner v. New York. That is, most law students study all or part of the judicial opinions that ultimately issued in that case. Not many study the underlying briefs that prompted the Supreme Court to rule as it did. That is what we were doing in my class.

Lochner is a 1905 Supreme Court case that involved a novel challenge to a state law limiting the number of hours a bakery owner could require or permit his workers to work per week in certain kinds of baking operations. The cap was basically 60 hours per week. The reason for the law? At that time, when baking was becoming a volume business in bustling urban centers like NYC, employers, who had all the bargaining power, were requiring the largely dirt-poor recent immigrants that they could round up to labor exceedingly long hours in damp, rat-infested basements amidst clouds of dust, which were causing some pesky health issues, like chronic breathing disorders and early death. The state of New York decided that if Utah could take the bold step of limiting the number of hours someone could toil in a coalmine per week, the Empire State could do its bit for bakery workers.

Bakery owner Joseph Lochner, however, thought the law was stupid. He refused to obey and was convicted of a criminal misdemeanor and fined $50. In appealing the conviction all the way to the SCOTUS, he did not argue about the facts. He argued that this so-called “Labor Law” violated the due process and equal protection clause of the US Constitution’s 14th Amendment. In case it’s slipped your mind, that amendment, which was passed during Reconstruction, is the one that includes the bit about how no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So what was the “life, liberty, or property” that the state was depriving Lochner of without due process and in violation of his right to equal protection under the laws? The right to exploit his work force like every other decent American?

Basically, yes. Lochner made these points:

·         The law does not apply to all bakers, so how can it really be about protecting the health of bakers.
·         The cap on hours does not apply to people working in all jobs, further evidence that it is unequal.
·         Indeed, this “Labor Law” is just like the law those people in California passed to prevent Chinese Americans from working in laundries. See Yick Wo v. Hopkins. It discriminates against an arbitrary class of bakers. Supreme Court, you know that law at issue in Yick Wo was bad and you struck it down; you should do the same with this bakery one. All bakery workers should have the “liberty to contract” for the right to work as many friggin’ hours a day as they can stomach. Taking away this right is a discriminatory due process violation.

Your joking, right? Lochner really thought the Supreme Court would by that crappy argument??

I most certainly am not joking. (Although I do intend to discuss comedy before this post is through.) And, yes, Joe Lochner’s lawyer not only thought this was a winner, he won!—thereby affecting the course of history for a good three decades. Go read the briefs and the subsequent opinion yourself if you don’t believe me.

And you should also read the briefs because they make for some great laughs in their recourse to reductio ad absurdum. For instance, here is how Lochner explains his contention that the law does not provide equal protection:

Then there is the American housewife. Here is the real artist in biscuits, cake and bread, not to mention the American pie. The housewife cannot bound her daily and weekly hours of labor. She must toil on, sometimes far into the night, to satisfy the wants of her growing family.

It seems never to have occurred to these ungallant legislators to include within the purview of the statute these most important of all artists in this most indispensable of trades.


Lochner also uses reductio ad absurdum to chide the state for being so patronizing:

If this law can be sustained because a few bakers may still be using old fashioned methods, whereby for a few minutes in each day they may possibly breathe a little flour dust into their lungs, why should not the doctor be protected because he is brought in contact by his trade with contagious diseases? Or the lawyer, because his occupation requires him to damage his eye-sight by poring over badly printed law books and decisions of the courts? Or the Wall Street operator because he is kept in a condition of undue nervous excitement by the gambling features of his business?


Amazingly, the state’s brief does not take aim at this false analogy and the resulting parade of horribles. The state doesn’t even explain the ills the law was passed to address. It just cites obliquely to stuff buried in the record. Then it makes this brilliant retort: The world is becoming a busy place. People don’t have time to bake bread at home the way they used to. But people need bread:

It is needless to dilate upon the proposition that these flour and meal food products are important to the public health, and that they should be manufactured by cleanly persons and under surroundings and conditions which shall not menace but conserve the public health.

The state then awkwardly concedes, that maybe people don’t need “confectioneries” (e.g., cookies):

While it is true that confectionery is not needful in the daily life of our people, it is equally true that a great amount of it is consumed, particularly by women and children.

Seemingly convinced that it had made a reasonable concession and effectively minimized it, the state ceases defending the impetus behind the statute and simply quotes it. Verbatim. For three full pages, without explanation or analysis.
Wow. Shakespeare himself would have had trouble coming up with such sallies of wit. But he was really good, nonetheless, at putting absurd arguments into the mouth of someone who pontificates with dead seriousness such that audience members can’t help but laugh their asses off.

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