The syllogism is at the heart of legal reasoning. Many law students have heard some variation of this claim. Many law professors have repeated it. So foundational is this concept that Justice Scalia and Bryan Garner (Reference Scalia and Garner2008, p. 41) argue that “the most rigorous form of logic, and hence the most persuasive, is the syllogism.” But the syllogism offers a very limited lens onto legal argumentation. The syllogism merely provides a framework for ascribing logical structure to propositional statements; the enthymeme serves as a bridge between logic and persuasion, playing a crucial role in how arguments are presented and understood in the legal context.
The syllogism, as Aristotle elaborates particularly in his Prior Analytics (Reference Aristotle1989), is a form of deductive reasoning where a conclusion is logically derived from two given premises. For instance, in a classic syllogism, from the premises “All humans are mortal” and “Socrates is a human,” one deduces the conclusion “Socrates is mortal.” This structure is key to formal logic, where the conclusion necessarily flows from the premises. The enthymeme, discussed in Aristotle’s Rhetoric (Reference Aristotle2004), mirrors the syllogistic structure but with one key difference: One of the premises is implied rather than explicitly stated, relying on the audience’s inference. For example, the statement “Socrates is mortal because he is human” implies the general principle that all humans are mortal, without stating it outright. Thus, the enthymeme is often characterized as a truncated or incomplete syllogism.
However, it is important to recognize that the enthymeme is not a deficient form of syllogism. Rather, it serves as a parallel construct in the domain of contingent truths and persuasive argumentation. While syllogisms are appropriate in environments of certainty or agreed-upon premises, enthymemes are appropriate for the domain of legal argumentation, where premises are often subject to interpretation and debate, and all the logically necessary premises cannot be fully articulated.
Understanding the enthymeme’s role in legal argumentation is particularly important when examining cases like Dobbs v. Jackson Women’s Health Organization (2022). This case provides a compelling study of how enthymematic reasoning shapes legal discourse and decision-making. The leaked draft opinion and the final decision, authored by Justice Alito, demonstrate how unarticulated societal values and assumptions underpin judicial reasoning. The majority opinion’s reliance on a historical and originalist interpretation of the Constitution, while ignoring the historical lack of representation of women and minorities, demonstrates the rhetorical effect of implicit premises on judicial reasoning.
5.1 The Enthymeme
In Aristotle’s framework, enthymemes are closely related to syllogisms, sharing several key characteristics and a similar form, but inhabiting different domains. Aristotle’s treatment of these forms in his works on logic and rhetoric reveals their complementary nature. While he categorizes “examples” as a rhetorical form of induction, he identifies the “enthymeme” as a variant of the syllogism, which he further characterizes as a “rhetorical syllogism.” This distinction is crucial in understanding Aristotle’s conception of enthymemes as not merely logical constructs but as tools adeptly suited for the art of persuasion.
Aristotle posits that the essence of rhetoric lies in its focus on modes of persuasion, which he equates to a form of demonstration (Aristotle, Reference Aristotle2004). Persuasion, in his view, is most effective when an argument is not only formally valid but also perceived as having been demonstrably proven. This perspective is where the enthymeme’s significance in rhetoric comes to the fore. Unlike the syllogism, which is primarily concerned with the logical structuring of premises leading to a conclusion, the enthymeme incorporates this logical framework within a rhetorical context. It is designed to persuade by presenting a logical argument where at least one premise is typically left unstated yet understood by the audience. This characteristic of the enthymeme makes it a powerful tool in rhetoric, as it engages the audience’s own beliefs and knowledge to fill in the gaps, thereby making the argument more relatable and convincing.
Aristotle’s emphasis on the enthymeme in rhetoric highlights its dual nature, combining the rigors of logical reasoning with the art of persuasive communication. This dual nature allows the enthymeme to be more adaptable and context-sensitive compared to the more rigid structure of the syllogism. In rhetorical discourse (including law), this adaptability makes the enthymeme particularly effective, as it can be tailored to the specific beliefs, values, and knowledge of a particular audience, thereby enhancing the persuasive impact of the argument. Thus, in Aristotle’s view, the enthymeme stands as one of the most convincing modes of persuasion, embodying the intersection of logical reasoning and the art of persuasion in a manner uniquely suited to the objectives of rhetorical discourse (Aristotle, Reference Aristotle2004). He goes on to say:
The enthymeme is a sort of syllogism, and the consideration of syllogisms of all kinds, without distinction, is the business of dialectic, either of dialectic as a whole or of one of its branches. It follows plainly, therefore, that he who is best able to see how and from what elements a syllogism is produced will also be best skilled in the enthymeme, when he has further learnt what its subject-matter is and in what respects it differs from the syllogism of strict logic. The true and the approximately true are apprehended by the same faculty; it may also be noted that men have a sufficient natural instinct for what is true, and usually do arrive at the truth. Hence the man who makes a good guess at truth is likely to make a good guess at probabilities.
For those who teach legal reasoning through syllogism, it is reassuring to know that these processes are not entirely separate entities. According to Aristotle, understanding formal logic indeed aids in grasping quasi-logical reasoning. So, if the purposes are similar, the capacity for creating them is similar, and the form is similar, then why is Aristotle so careful to separate them in his taxonomy? In short, because syllogisms and enthymemes inhabit different domains. Syllogisms belong to the domains of philosophy and science, of dialectic and proof. Enthymemes belong to the domains of law and politics, of contingent truths and political philosophies.
But while Aristotle it careful to explain that the pursuits of man are not concerned with universal truths, he does not go so far as to accept a worldview that we would now categorize as postmodern – one where all truth is contingent and where all logical arguments are necessarily predicated on faulty understanding or deception and where emotional or manipulative arguments share the same status as arguments that attempt an internal logical consistency. He argues for the primacy of a particular mode of rhetorical argument, one that privileges logic above emotional appeals, at least for legal discourse. He says:
Now, the framers of the current treatises on rhetoric have constructed but a small portion of that art. The modes of persuasion are the only true constituents of the art: everything else is merely accessory. These writers, however, say nothing about enthymemes, which are the substance of rhetorical persuasion, but deal mainly with non-essentials … It is not right to pervert the judge by moving him to anger or envy or pity – one might as well warp a carpenter’s rule before using it. Again, a litigant has clearly nothing to do but to show that the alleged fact is so or is not so, that it has or has not happened. As to whether a thing is important or unimportant, just or unjust, the judge must surely refuse to take his instructions from the litigants: he must decide for himself all such points as the law-giver has not already defined for him.
It is this vision of the purpose of the enthymeme that many legal rhetoric scholars would readily adopt: an informal logic that aspires to logical certainty – one that avoids the dangers of undignified appeals to pathos and reproduces facts so that a judge may make a reasoned determination. A conservative reimagining of the structure of legal argumentation might acknowledge that, at the very least, legal arguments are advanced through enthymemes of the form described above, rather than through syllogisms. This acknowledgment would represent a significant shift in the understanding of legal reasoning, as it would move away from the purely logical and formalistic view of the law.
5.2 Enthymeme in Legal Argumentation
The seemingly infallible logical and quasi-scientific structure of the syllogism is what has endeared it so deeply to those who seek to make legal argumentation seem a formalistic pursuit. This deep-rooted affinity for the syllogism in legal circles is not merely due to its logical rigor but also because it offers an appearance of objectivity in legal reasoning. By framing legal arguments within a syllogistic structure, there is an implication that judicial decisions are the product of a straightforward, almost mechanical, process of logical deduction. This perspective is attractive in the legal field as it suggests that conclusions in legal matters are derived from a clear, rational process, minimizing the perception of subjectivity or bias. The syllogism, in this sense, is seen as a tool that distills complex legal arguments into a format that is both logically sound and ostensibly impartial. This approach aligns well with the desire in legal practice to portray the law as a system based on reason and universal principles, rather than one influenced by the whims and biases of individuals.
When explaining legal reasoning, law professors often map the well-known IRAC model (Issue, Rule, Application, and Conclusion) onto the syllogistic structure. In this model, the “Rule” represents the general law or legal principle applicable to the case at hand, forming the major premise of the syllogism. The “Application” involves an analysis of how this rule pertains to the specifics of the case, serving as the minor premise. And the “Conclusion” provides a resolution to the issue at hand, effectively acting as the syllogism’s conclusion. Brian Larson calls this brand of deductive reasoning “rule-based reasoning” (Larson, Reference Larson2018) and found that these rule-based arguments make up the majority of legal arguments in a study of legal briefs and opinions (Larson, Reference Larson2021).
Legal formalists often champion the syllogism as the correct method of legal reasoning, advocating the view that the application of case law is akin to a scientific process, capable of being encapsulated within formal models of logical reasoning. This perspective is further elaborated by Thomas F. Gordon and Douglas Walton in their work, “Legal Reasoning with Argumentation Schemes” (Gordon and Walton, Reference Gordon and Walton2009). Gordon and Walton discuss various methods of argumentation in legal reasoning, aligning more closely with philosophical concepts of argumentation. They describe their model of argumentation scheme as tuples of the type (list [premise], statement), where the list [premise] denotes a list of premises, and the statement represents the conclusion of the argument. In their framework, a premise can be a statement, an exception, or an assumption, offering a nuanced approach to understanding legal arguments.
This perspective on legal reasoning suggests that the judicial process can be structured and dissected into a series of definable elements that construct a logical argument. Just like solving a mathematical problem, each premise, statement, exception, or assumption is a variable in the equation that can either add, subtract, or modify the strength and direction of the argument. This means that the analytical rigor employed in the legal process goes beyond the mere presentation of facts and laws. It examines the underlying logical structure of the arguments and identifies the necessary conditions required to validate or negate a legal conclusion.
However, legal reasoning, unlike mathematics or natural sciences, requires significantly more than internal logical consistency or formal validity. It involves subjective factors such as human interpretation and judgment. Thus, while Gordon and Walton’s approach provides a robust framework for breaking down the elements of legal reasoning into a systematic and methodical model, it also necessitates the acknowledgment of the inherent ambiguity and interpretative latitude within the law.
In response to the limitations of formal logic, there has been a shift, not only among critical legal scholars but also within the field of legal argumentation, toward a more rhetorical understanding of legal reasoning. This shift acknowledges the influence of rhetoric in legal discourse, challenging traditional legal thought that often underestimates the role of the enthymeme. João Maurício Adeodato (Reference Adeodato1999), for instance, critiques the traditional legal mindset that tends to view the enthymeme with skepticism, suggesting that the traditional approach is at odds with the inherently rhetorical and constructive nature of legal discourse. This evolving viewpoint underscores a growing recognition of the complexity and nuance in legal reasoning, beyond the confines of strict formal logic.
Adeodato’s perspective represents a significant departure from the conventional legal formalist approach. He contends that the enthymeme, by acknowledging the unstated premises derived from shared values or beliefs, provides a more accurate representation of the real-world application of law. It captures the inherently rhetorical nature of law, where the decision-making process is not just a mechanistic application of pre-established rules but also involves interpretation and judgment, shaped by societal norms and values. His assertion that legal agents often unconsciously use enthymemes in their reasoning process underscores the inherently persuasive and interpretive nature of legal discourse.
But the rhetorical use of the enthymeme extends beyond just employing it when premises are universally understood; it also involves its use when the premises are controversial – in fact, sometimes because they are controversial. This more rhetorical understanding is explored in the work of Fabrizio Macagno and Giovanni Damele (Reference Macagno and Damele2013), who investigate the role of implicit premises in argumentation, particularly when these premises are contentious or debatable. Their work provides insights into the rhetorical strategies used in selecting which premises to omit to lend legal arguments a veneer of being unassailable. Yet few legal scholars have engaged with the work of reconstructing implicit premises to understand their rhetorical force and to fully examine the internal logic of judicial opinions.
Rethinking the IRAC model as an enthymeme rather than a syllogism offers a more accurate reflection of the nuanced nature of legal reasoning. The syllogistic interpretation of IRAC suggests a rigid, linear progression from rule to application to conclusion, implying a level of certainty and predictability that often does not exist in legal contexts. In contrast, viewing IRAC through the lens of the enthymeme acknowledges the inherent uncertainties and interpretative elements in legal argumentation. The enthymeme, by its nature, allows for an unstated premise – often a normative or contextual assumption – which is crucial in legal reasoning. This perspective aligns more closely with the reality of legal practice, where judges and lawyers frequently rely on unarticulated principles, societal norms, or ethical considerations that are not explicitly stated but are nonetheless pivotal to the reasoning process. By conceptualizing IRAC as an enthymeme, we embrace a more realistic and flexible model of legal argumentation, one that better accommodates the complexities and subtleties inherent in the application of law to diverse and often unpredictable real-world situations. This approach not only provides a more accurate framework for understanding legal reasoning but also underscores the importance of critical thinking and interpretative skills in the practice of law.
In this light, I aim to examine the effect of the unstated premises on legal argumentation in Dobbs. For this examination, I use the following definition, tailored for legal analysis: An enthymeme is a rhetorical construct that connects premises to a conclusion in the realm of real-world, contingent truths, by strategically omitting certain premises and relying on the audience to fill these gaps. This omission is not a flaw but a deliberate technique that engages the audience’s own beliefs and values, or obscures the omitted premises if they are controversial, making the argument more compelling and resonant within the specific context of legal reasoning and persuasion. Further, identifying legal reasoning as syllogistic not only overlooks the rhetorical dimension of legal argumentation but also mistakenly aligns it more with scientific discovery than with argumentation about pragmatic legal issues. This perspective erroneously positions legal reasoning in a domain akin to empirical science, where conclusions are drawn from established, objective facts through deductive and inductive reasoning. In contrast, legal argumentation is fundamentally about navigating and interpreting the complexities of human-made law, human behavior, societal norms, and ethical considerations. As Aristotle argues, legal argumentation involves a dynamic process of persuasion and interpretation, which necessarily operates through an enthymematic, rather than syllogistic, framework.
5.3 Enthymeme in Dobbs
Dobbs v. Jackson Women’s Health Organization (2022) highlights the difficulty of ascribing a to Supreme Court argument formal logic schemas, especially ones as rigid as the syllogism. Even though the argument does not map well to a rigorous logical test, the exercise in attempting to do so results in a better understanding of where the argument fails.
Numerous legal scholars have already pointed out some of the major failings of the decision – it purports to represent a history that most likely never existed, it misreads precedent, and it ignores decades of established legal precedent to get to its justification for its ruling. Dahlia Lithwick and Neil S. Siegel (Reference Lithwick and Siegel2022) have argued that “Dobbs [is] not just wrong, but lawless … [b]ecause it is utterly unprincipled. It articulates a reason for overruling Roe out of one side of its mouth, then repeatedly protests that it will not be bound by this reason out of the other side of its mouth.” But more insidious than these obvious examples of where the evidence or stated reasoning fails is where the majority opinion’s reasoning is obscured by its reliance on unstated premises, a tactic that further complicates the application of formal logic schemas to its argument.
This elusiveness in the opinion’s structure allows it to maneuver around certain logical and legal expectations. The decision, while overtly grounded in legal reasoning, subtly embeds its rationale in premises that are not explicitly articulated but are critical to its conclusion. These unstated premises include particular interpretations of history, assumptions about societal norms, or specific views on the role of the judiciary that would be controversial if stated overtly. This approach effectively conceals the full basis of its reasoning, making it challenging to dissect and critique the decision using traditional legal analysis. The concealment of these key premises not only contributes to the perceived failings of the decision, as noted by legal scholars, but also illustrates a strategic use of legal rhetoric. By not openly stating these foundational premises, the opinion avoids direct engagement with counterarguments and criticism, thereby shielding its reasoning from straightforward legal scrutiny. This method of hiding reasoning through unstated premises is not just a feature of this particular decision, but a broader tactic that can be observed in various judicial opinions, highlighting the complex interplay between legal argumentation, rhetoric, and logic.
Justice Alito’s majority opinion employs enthymematic arguments within a quasi-logical framework to make its case for overturning Roe v. Wade (1973). By leveraging enthymematic arguments, Justice Alito aims to shape the Court’s decision and persuade the reader, employing a structure that exhibits the appearance of logical coherence while concealing potential gaps in the reasoning. Moreover, its verisimilitude to the syllogism and the scientific rigor necessary to construct a syllogistic proof helps to give Alito’s argument its rhetorical force.
Within this quasi-logical structure, Justice Alito strategically selects and presents arguments that encompass implicit premises, relying on the audience to fill in the missing elements. By leaving certain premises unexpressed, Justice Alito capitalizes on the persuasive force of these unspoken assumptions, thereby shaping the audience’s perception and bolstering the strength of his argument.
To understand the rhetorical effect of Alito’s enthymematic argumentation, let us first turn to those premises that are explicitly stated in the opinion. Alito says:
We hold that Roe and [Planned Parenthood v.] Casey [(1992)] must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks omitted).
The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
One might reconstruct the nested enthymemes that comprise the test for Dobbs thus:
First major premise: Abortion is not a right enumerated in the Constitution.
Implied premise: This case is about abortion, not a more general right to privacy, nor a right to control medical decisions about our bodies.
Second major premise: Unenumerated rights exist only if they are deeply rooted in our nation’s history.
Implied premise: A right is deeply rooted in our nation’s history only if it has been legally recognized in all circumstances across all time (or at least in all circumstances across a particular time period).
Minor premise: Abortion has not always been legal in all circumstances across all time.
Minor conclusion: Abortion is not deeply rooted in our nation’s history.
Conclusion: Abortion is not a right enshrined in the Constitution; therefore, Roe and Casey must be overruled.
The enthymemes at the heart of the Dobbs decision operate through missing premises, which play a crucial role in shaping the argument’s trajectory and conclusion. The major premises, while they rely on some shared values and assumptions, have support beyond the argument being made by Alito in Dobbs. However, the implied premises introduce significant nuances that direct the argument toward a predetermined conclusion.
5.3.1 Major Premise: Abortion Is Not a Right Enumerated in the Constitution
Choosing a major premise for an enthymeme in legal argumentation is a deeply rhetorical act, one that sets the tone and direction for the entire argument. This choice is far from arbitrary; it reflects the arguer’s perspective, biases, and the intended message they wish to convey. In essence, the major premise serves as the foundation upon which the argument is built, guiding the logical progression and influencing the conclusions drawn. It is the lens through which facts are interpreted and through which the argument gains its persuasive power. For instance, in a legal context, selecting a major premise that aligns with a particular legal theory or interpretation can significantly shape the outcome of the case. This premise acts as a filter, determining which facts are relevant and how they are to be understood. It is not just a statement of fact, but a declaration of the argument’s underlying assumptions and values.
Furthermore, the rhetorical choice of a major premise in an enthymeme also dictates the engagement of the audience with the argument. A well-chosen premise can resonate with the audience’s beliefs or values, making the argument more persuasive. It can also challenge or provoke the audience, compelling them to reconsider their views. In judicial decision-making, the selection of a major premise is a critical step that shapes the entire framework of legal analysis. It goes beyond ensuring the logical coherence of the decision; it involves a careful consideration of the broader legal principles, ethical implications, and societal values that underpin the law. By selecting a particular major premise, a judge essentially determines the narrative through which legal facts are understood and contextualized, thereby guiding the legal discourse toward a certain trajectory that resonates with the judge’s understanding of the law and its role in society. This decision is a constitutive act, one that not only applies the law but also shapes it, reflecting James Boyd White’s (Reference White1973) view of the law’s constitutive nature.
The majority opinion sets up the analysis of Dobbs through the lens of abortion rights. The first major premise is demonstrably true through a reading of the Constitution: Nowhere is abortion mentioned in the document. When Justice Alito centers his analysis on whether abortion is an enumerated right in the Constitution, he strategically bypasses the broader and more contentious debate about the existence of a fundamental right to privacy.
5.3.2 Implied Premise: This Case Is about Abortion, Not a More General Right to Privacy, nor a Right to Control Medical Decisions about Our Bodies
The implied premise, that Dobbs is specifically about abortion and not about a broader right to privacy or bodily autonomy, limits the argument’s scope. By framing the issue narrowly around abortion, Alito effectively limits the discussion to the legality of abortion itself, rather than engaging with the wider constitutional principles that might underlie such a right. This strategic narrowing of the argument’s scope is a key rhetorical move, as it shifts the focus of the debate and potentially influences how the audience, including the Court and the public, perceives and evaluates the issue.
Alito’s approach sets up his narrow view of the historical development and understanding of privacy rights in American jurisprudence. While ideas about which privacy rights are fundamental has shifted over time, the argument that privacy is fundamental is not new. In their 1890 law review article, “The Right to Privacy,” Warren and Brandeis initially characterized the right to privacy as an existing common law right that encompassed safeguards for an individual’s “inviolate personality” (Warren and Brandeis, Reference Warren and Brandeis1890, p. 205). According to their view, the common law ensured that each person had the right to determine the extent to which their thoughts, sentiments, and emotions would be communicated to others, establishing the boundaries of public disclosure. Their conception of the right to privacy emphasized that individuals possessed the choice to share or withhold information about their private life, habits, actions, and relationships.
The necessity for the legal system to recognize the right to privacy, as argued by Warren and Brandeis, stemmed from the potential impact of disclosing information about an individual’s private life. They contended that such revelations had the capacity to influence and harm the very core of a person’s personality, particularly their self-perception. In essence, they recognized that an individual’s personality, including their self-image, could be affected, distorted, or even injured when private information became accessible to others. This original understanding of the right to privacy incorporated a psychological insight which, at the time, was relatively unexplored – an understanding that the disclosure of private aspects of an individual’s life could have profound psychological consequences.
So, by the early part of the twenty-first century, the right to privacy had been enshrined as a fundamental right – one so foundational to understanding all our other rights that it can be left unsaid, thus forming a penumbra of constitutional protections. Alito strategically did not revisit the issue of whether a general right to privacy exists, instead limiting his focus to abortion more specifically. This allows him to find that abortion is not a fundamental right and skip the analysis of whether an anti-abortion law passes constitutional muster.
To determine whether such a fundamental right has been impermissibly infringed upon, courts generally apply the doctrine of strict scrutiny. Under this doctrine, which has been called one of “the most important and distinctive tenets … of modern constitutional law,” the government must show that the law is narrowly tailored to achieve a compelling state interest (Siegel, Reference Siegel2006, p. 355). Strict scrutiny is a high standard that is difficult for the government to meet, and it often results in laws or policies being struck down as unconstitutional.
For instance, a state may enact a law that limits the exercise of free speech, but only if it can demonstrate that it has a compelling interest, such as safeguarding national security, and that the law is carefully tailored to achieve that interest. To pass constitutional scrutiny, the government must meet both prongs of the test: showcasing a compelling state interest and ensuring that the chosen means are narrowly tailored, meaning the law is the least restrictive way to accomplish the desired objective.
This is the test Roe applied to anti-abortion laws in 1973. The Court weighed a woman’s right to make decisions about her pregnancy against a state’s interest in protecting “potential life.” The balancing test it applied came to an equilibrium at the time of viability of the fetus. It weighed the relative interests, stating:
On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
In this deductive argument, the Court considers a hypothetical syllogism: (i) “Rights of privacy are always absolute,” (ii) “Reproductive decisions are subject to a right of privacy,” and (iii) “Therefore, reproductive decisions are an absolute right.” The Court then proceeds to demonstrate the falsity of premise (i) by presenting counterexamples that show privacy rights are not always absolute. This refutation of the first premise effectively undermines the conclusion (iii), demonstrating that reproductive decisions cannot be considered an absolute right in every circumstance.
Following this deductive reasoning, the Court’s balancing test is reintroduced to provide a more nuanced explanation. The balancing test allows the Court to articulate why the conclusion (iii) is not universally true, particularly in the context of the case at hand. By employing this test, the Court can consider a range of factors, including societal values, legal precedents, and the implications of absolute rights, to arrive at a more comprehensive and context-sensitive conclusion.
A balancing test may be seen as a compromise, one that Alito is not willing to make when he revisits the idea almost fifty years later in Dobbs. Where certain “fundamental rights” are involved, the Court has held time and again that regulation limiting these rights may be justified only by a “compelling state interest.” But, in Dobbs, Alito is careful to state that the right to an abortion is not a fundamental right. He says, “Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one” and goes on to question whether unenumerated rights exist and under what circumstances the Court should be willing to acknowledge them (Dobbs v. Jackson Women’s Health Organization, 2022, p. 1).
The recognition of unenumerated rights within the constitutional framework has been a subject of considerable debate and interpretation. The courts have consistently acknowledged that the Constitution’s protection extends beyond its explicit provisions, encompassing inherent and implied rights that are integral to individual liberty and justice. This understanding acknowledges that the Constitution operates as a living document, capable of evolving to address new challenges and societal expectations. But not all are willing to accept the Constitution as a living document. Originalism as a jurisprudential principle is rooted in the idea that we should seek to understand and apply the law as those living in the time it was written would have understood it. (See Hannah and Mootz, Chapter 2 in this volume, about the role of originalism in legal argumentation.) It has also been used to justify reactionary judicial rulings, as has the test applied in Dobbs.
When Alito focused his analysis on the specific question of whether abortion is an enumerated right in the Constitution, rather than exploring the broader concept of privacy, he effectively narrowed the scope of the legal debate. By concentrating solely on abortion, Alito implicitly underscores a widely held legal perspective: that abortion, in itself, is not typically regarded as a fundamental right. This framing contrasts with the broader and more complicated discussions surrounding privacy as a fundamental right, which might encompass a variety of personal decisions, including choices about one’s body. Alito’s decision to isolate abortion from this broader context of privacy rights thus shifts the legal discourse, focusing it on the enumeration of specific rights rather than on the exploration of underlying principles that might be considered fundamental to personal liberty and autonomy.
The argument then becomes: If the right in question is not a fundamental right, then it is not appropriate for the Court to apply a strict scrutiny test. This does two things for the argument, and hence the enthymeme. First, it allows Alito to apply a test that is much more favorable to the state. The government in the traditional analysis would be said to have an interest in protecting the rights of fetuses, and that interest would have to be a compelling one to overcome the burden of the law prohibiting abortion. And second, it removes the emphasis of competing rights from the discussion. Rhetorically, this is an important move. Rather than pitting the rights of women against those of fetuses (or those of the state in protecting fetuses), the court is now able to examine whether “potential life” should have any rights, not just whether those rights should overcome the rights of the woman.Footnote 1
Thus, Alito further obscures the rationale through his choice of categorical analogy. When defining the fundamental right to privacy that Roe protected, he selected a narrow focus not of bodily autonomy over the medical procedures we choose to have (something that would apply to men and women equally) but the right to an abortion (something that only women could face). And in doing so he ensures that groups that have been historically marginalized will continue to be treated as a different class from those who have traditionally held power in the United States, heterosexual white men. Rather than asking “is this basic right something that we have recognized on a broad basis,” he narrows his focus to be something that would only apply to women.Footnote 2 By choosing the category from which to define a class, Alito sets up a test that could only fail.
The dissent takes issue with this narrow categorization and contextualizes the line of cases that helped define privacy rights as being fundamental to personhood:
Roe and Casey fit neatly into a long line of decisions protecting from government intrusion a wealth of private choices about family matters, child rearing, intimate relationships, and procreation. See Casey, 505 U. S., at 851, 857; Roe, 410 U. S., at 152–153 …). Those cases safeguard particular choices about whom to marry; whom to have sex with; what family members to live with; how to raise children – and crucially, whether and when to have children. In varied cases, the Court explained that those choices – “the most intimate and personal” a person can make – reflect fundamental aspects of personal identity; they define the very “attributes of personhood.” Casey, 505 U. S., at 851. And they inevitably shape the nature and future course of a person’s life (and often the lives of those closest to her). So, the Court held, those choices belong to the individual, and not the government. That is the essence of what liberty requires.
The selection of rules and categorical definitions in legal arguments, as exemplified in the Dobbs decision, highlights the profound impact of the enthymeme and underscores the risk of equating legal arguments with syllogisms. If legal argumentation were purely syllogistic, its premises would be governed by natural law or intrinsic rules of the system, much like a geometric proof is bound by established mathematical principles. In such a proof, the steps are dictated by predetermined rules; the person constructing the proof cannot arbitrarily dictate whether an acute angle is more or less than 90 degrees or whether a given angle is properly classified as acute or obtuse.
However, the realm of legal argumentation operates differently. A judge, unlike a mathematician, has the latitude to define the categories and rules applicable to a case. In the Dobbs decision, Alito exercises this discretion by narrowly defining the category of rule to specifically encompass abortion, excluding broader privacy rights. This strategic categorization sets up a test designed to fail under the parameters he establishes. Ironically, this approach not only allows him to apply the law as he has redefined it in Dobbs, which is narrowly tailored to abortion, but it also potentially paves the way for him to further restrict other privacy rights in the future, based on what he has decided in Dobbs.
5.3.3 Major Premise: Unenumerated Rights Exist Only If They Are Deeply Rooted in Our Nation’s History
This premise comes with a rarely used test which, when applied, is likely to reduce individual rights: the Glucksberg test. The Glucksberg test sets forth the standard for evaluating substantive due process claims related to the recognition of new fundamental rights (Turner, Reference Turner2020). Named after the 1997 Supreme Court case Washington v. Glucksberg, in which the Court upheld a Washington state law criminalizing assisted suicide, the test is used to determine whether a right is a fundamental right protected under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. In its decision, the Supreme Court rejected the argument that there is a fundamental right to assisted suicide, and instead established a two-part test for determining whether a right is fundamental. The first part of the Glucksberg test requires that the right be “deeply rooted in this Nation’s history and tradition” (Washington v. Glucksberg, 1997, p. 721). The second part of the test requires that the right be “implicit in the concept of ordered liberty” (p. 721), meaning that it is necessary for an individual’s autonomy and dignity.Footnote 3
Alito, in pages 11–13 of the Dobbs opinion, sets out to explain some of the history of the Glucksberg test. He specifically discusses the way that historical inquiries have been made when looking to confer a previously unrecognized right in Timbs and McDonald. He argues, “Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the ‘liberty’ protected by the Due Process Clause because the term ‘liberty’ alone provides little guidance” (Dobbs v. Jackson Women’s Health Organization, 2022, p. 13).
If we accept his theory of Glucksberg, then we might reconstruct the “syllogism” thus:
Major premise: Historical inquiries are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause.
Implied premise: In Dobbs, we are now asked to recognize a new component of the “liberty” protected by the Due Process Clause.
Implied conclusion: A historical inquiry is essential for Dobbs.
Of course, when we re-create the implied premise here, it fails. Alito never claims to be conferring a new right with Dobbs. He is revisiting a clearly established right, one that he argues was conferred in the Roe decision, but one that Blackmun argued had predated Roe.
Perhaps Alito would argue that the part of the implied premise here is that when Roe was decided, it would have been appropriate to have evaluated the case using the Glucksberg test. If we reconstruct the premise in that way, then we have a bit of a timeline problem. The Court can no longer rely on Glucksberg to justify the rule it is applying, as Glucksberg was decided two decades after Roe. The problem lies in the fact that legal precedent, as a principle, is typically not applied retroactively. Therefore, using the Glucksberg test as a yardstick to measure the historical legitimacy of a right recognized in Roe contradicts the general legal principle that precedent should not be applied to past rulings. This approach essentially reevaluates Roe with a standard that did not exist at the time of its decision.
Perhaps Alito would argue that the principle that a court must engage in historical inquiry of the type that Glucksberg lays out predates its articulation in Glucksberg and would have still been an appropriate test when deciding Roe. But then, ironically, we have an enumeration problem. The Court would be relying on an unarticulated rule whose foundations predate its articulation in Glucksberg. It seems absurd to argue that a legal principle is so foundational that the Court should apply it, even though it has not been previously articulated, for the express purpose of striking down a constitutional protection that is so foundational that the Court should acknowledge it, even though it has not been previously articulated.
Alito is doing something unusual in Dobbs: He is essentially relitigating a prior case. Roe was wrongly decided, his logic goes. When one applies a 1997 test to the 1973 Roe case, the result is different.
Reconstructing the “syllogism” in Alito’s argument sheds light on what Macagno and Damele (Reference Macagno and Damele2013) propose as the rhetorical force of implied premises. The uncontroversial premises are stated overtly; the controversial ones are not articulated. Thus, audiences must first supply the premise before they can point out any flaws with it. More problematic still is the plausible deniability that gets built into the system because the speaker can respond to any such critique by reframing or rewriting their own argument. The enthymeme becomes a dialogical and living argument, capable of adapting to changing circumstances. And in this system, the speaker gets the benefit of the doubt: It seems unfair to put words into Alito’s mouth and hold him to task for something he never said.
By carefully analyzing the argument as it is constructed, we can see that the application of Glucksberg is dubious at best. But what is a justice who wants to revoke a fundamental right to do in this situation? There is no corollary to the Glucksberg test when revoking rather than conferring a right under the Fourteenth Amendment. In fact, when the Court limits a fundamental right, it must do so with the restraint that the strict scrutiny test requires. Alito seems to be doing logical gymnastics to provide a basis for his argument that the right to an abortion is not a fundamental right.
5.3.4 Implied Premise: “Deeply Rooted” Means Unwaveringly So
The reconstructed, implied premise, “a right is deeply rooted in our nation’s history only if it has been legally recognized in all circumstances across all time,” though not explicitly stated in Alito’s opinion, is essential for completing the “syllogism.” It sets a remarkably high bar for any right to be considered fundamental and effectively narrows the scope of what can be considered a historically rooted right, excluding rights that may have evolved or been recognized over time.
This premise is arguably the most contentious, making its rhetorical omission advantageous, as it compels the audience to reconstruct it. Moreover, it is precisely this unspoken premise, along with the historical “evidence” Alito employs to support this aspect of his argument, that has attracted significant scrutiny and criticism.
The dissent critiques this narrow view of constitutional rights as failing to grasp how applications of liberty and equality can evolve with changing societal understandings, saying, “The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning” (Dobbs v. Jackson Women’s Health Organization, 2022, Breyer et al. dissent, p. 14).
Minor premise: Abortion has not always been legal in all circumstances across all time.
In arguing that the right to abortion is not deeply rooted in the nation’s history and tradition, Alito faces the challenge of proving a negative. It is notoriously difficult to prove the absence of something, especially a concept so nebulous as an unenumerated constitutional right. Instead of directly establishing the lack of historical entrenchment, he opts to provide evidence that abortion has, at various points, been illegal.
Alito asserts that “until the latter part of the [twentieth] century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right” (Dobbs v. Jackson Women’s Health Organization, 2022, p. 15). Here, he provides more evidence to support the major premise that if abortion is a right, it had not been enumerated until recently. But this evidence does not answer whether the right would pass the Glucksberg test. Whether the right claimed is “deeply rooted in this Nation’s history and tradition” requires an inquiry beyond just whether there has always been a legal right recognized in official statutes and constitutions.
He further contends that “by the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow” (Dobbs v. Jackson Women’s Health Organization, 2022, p. 16). By highlighting instances and periods where abortion was criminalized, Alito seeks to undermine the notion that the right to abortion is historically entrenched. However, this approach is logically flawed. As the dissent points out, “the right to an abortion emerged not recently, but as part and parcel of two centuries of jurisprudence grappling with the protection of the individual’s liberty and dignity” (Dobbs v. Jackson Women’s Health Organization, 2022, Breyer et al. dissent, p. 12). The dissent argues that the majority’s focus on specific historical instances of abortion criminalization fails to account for the broader evolutionary arc of rights related to personal autonomy and reproductive freedom.
Moreover, the majority’s reliance on historical abortion laws as evidence against a deeply rooted right is problematic because it assumes a static view of rights. As the dissent notes, “The Framers defined rights in general terms, to permit future evolution in their scope and meaning” (Dobbs v. Jackson Women’s Health Organization, 2022, p. 15). The fact that abortion had been criminalized in the past does not necessarily preclude the recognition of a constitutional right in the present, consistent with a modern interpretation of a foundational right. The historical legality of a practice is just one factor in a broader, more nuanced analysis. The Glucksberg test requires a deep dive into the historical context, societal values, and legal traditions surrounding the practice. For instance, a practice might have been criminalized due to historical misconceptions, cultural biases, or lack of scientific understanding, which have since evolved. Therefore, the mere fact of past criminalization does not definitively determine a practice’s alignment with deeply rooted national traditions or its place within the concept of ordered liberty. The Glucksberg test calls for a more comprehensive historical and cultural understanding to assess whether a right is fundamental.
The minor conclusion in the Dobbs decision, that abortion is not deeply rooted in our nation’s history, emerges as a logically consistent outcome based on the major and minor premises previously established in the argument. However, it’s crucial to distinguish between the formal logical validity of this conclusion and its rational soundness, as these are two distinct concepts in logical and legal reasoning.
Formal logical validity refers to the coherence within the structure of an argument. It evaluates whether the conclusion follows logically from the premises, without any internal contradiction, assuming the premises are true. In the case of the Dobbs decision, the argument is constructed in a way that the conclusion – that abortion is not deeply rooted in our nation’s history – logically aligns with the premises laid out. The major premise, that unenumerated rights must be deeply rooted in our nation’s history to be recognized, combined with the minor premise, that abortion has not always been legal in all circumstances, leads to the minor conclusion in a manner that is internally consistent. This formal validity is crucial for the argument to be seen as rational and coherent within its own framework.
However, rational soundness is a broader concept. It concerns not just the formal structure of the argument, but also the truthfulness or factual accuracy of the premises and the relevance and sufficiency of these premises in leading to the conclusion. An argument can be formally valid yet still be unsound if its premises are false or if they do not adequately support the conclusion. In the context of the Dobbs decision, questioning the rational soundness of the conclusion involves scrutinizing the historical and legal assumptions underlying the premises.
The major premise assumes that for a right to be constitutionally protected, it must have a deep historical root. This premise can be contested on several grounds. First, the interpretation of what constitutes “deeply rooted” is subjective and open to debate. History is not a static or objective narrative but is subject to interpretation and reevaluation. Second, the premise seems to ignore the dynamic nature of societal values and legal interpretations, which evolve over time. Rights that were once unrecognized or even unthinkable can become fundamental as societal norms and understandings progress. Finally, as explained above, the retroactive application of this principle, the Glucksberg test, is dubious at best.
Similarly, the minor premise, that abortion has not always been legal in all circumstances, while factually accurate, may not be sufficient to support the conclusion. The legal status of abortion throughout history is complex and varied, influenced by cultural, religious, and social factors. The premise oversimplifies this history and does not account for the nuanced ways in which abortion rights have been understood and exercised in different contexts.
Therefore, while the conclusion that abortion is not deeply rooted in our nation’s history may follow logically from the premises in the argument, its soundness is questionable. It relies on premises that are either debatable or insufficiently robust to support the conclusion. This distinction between formal logical validity and rational soundness is crucial in legal reasoning. It highlights the importance of critically examining not just how conclusions follow from premises, but also the soundness of those premises and their capacity to genuinely support the conclusions drawn. The enthymematic structure, complete with unstated but necessary premises, allows for the appearance of logic amidst an invalid argument.
Conclusion: Abortion is not a right enshrined in the Constitution; therefore, Roe and Casey must be overruled.
This conclusion is controversial, not just because of its effects, but also because of the method by which Alito supports it. He is ignoring stare decisis, which he justifies through the lens of a respect for the history of the United States and its legal system. The Glucksberg test allows him to do so.
The use of the Glucksberg test by Justice Alito in this context serves as a strategic tool, enabling him to reject longstanding legal precedent while framing his argument within a historical and traditionalist perspective. By applying this test, Alito positions his reasoning as a reflection of a deep respect for historical legal principles, rather than a departure from them. This approach provides a veneer of continuity and respect for legal tradition, even as it facilitates a significant shift in the interpretation of constitutional rights.
Alito’s approach was carefully crafted to circumvent the label of an activist judge, a term often used to describe justices who are perceived as using their judicial power to promote personal ideologies rather than adhering to established legal principles and precedents. In his opinion, Alito could have explicitly stated his disagreement with the past fifty years of legal precedent regarding abortion rights and his consequent desire to overturn it. Such a direct approach, however, would have starkly positioned him as a judicial activist, openly challenging established legal norms and the Supreme Court’s tradition of respecting precedent. And so, he refrains from such directness, opting instead for a more subtle approach that masks the radical nature of his decision.
The opening of Alito’s opinion in Dobbs is particularly telling in this regard. Alito begins his opinion with the declaration, “Abortion presents a profound moral issue on which Americans hold sharply conflicting views” (Dobbs v. Jackson Women’s Health Organization, 2022, p. 1). Rather than beginning with the law, he begins with a discussion of morals and politics. Here, he tips his hand that he will not be “following the law” in the way we generally assume the Court will follow its own precedent, according to long-held standards of stare decisis.
Compare the first line of Dobbs with that of Roe v. Wade (1973, p. 116): “This Texas federal appeal and its Georgia companion, Doe v. Bolton, … present constitutional challenges to state criminal abortion legislation.” Blackmun, in Roe, begins with a focus on the law and the legal issues. He does this, ostensibly, because he will argue that Doe is not entirely new law, that it is well-founded based on entrenched constitutional principles of privacy and personal autonomy. The opening line of Dobbs shows Alito’s cards. He will be overturning a legal rule that has been on the books since at least 1973.
The departure from stare decisis in the Dobbs decision represents more than just a deviation from established legal precedent; it also signifies a divergence from the traditional functions attributed to the courts by legal theorists. Typically, the judicial branch is primarily viewed as an interpreter of the law, tasked with applying established legal tests. However, in cases like Dobbs, the Supreme Court transcends this conventional role, notably engaging in the creation and endorsement of legal tests, especially in matters involving constitutional questions, such as the right to privacy. A significant portion of the rhetorical effort in the Dobbs decision lies in how the Court selects the appropriate test to apply.
The Supreme Court’s role in formulating and endorsing legal tests underscores its influential position in the constitution of legal norms and the shaping of societal values. By engaging in this process, particularly in constitutional matters, the Court actively participates in the development of legal doctrine, sets precedents, and influences societal perceptions of rights and responsibilities. Consequently, the Court’s decision-making process inherently involves enthymematic reasoning and argumentation. Each time it selects a rule to apply in a case, the Court implicitly engages in an argumentative process, where the choice of the rule serves as a premise, but the rationale for applying that rule often remains unstated.
5.4 Conclusion
The application of the Glucksberg test in the context of Dobbs underscores the challenges inherent in viewing legal reasoning purely through a syllogistic lens. Such an approach fails to fully grasp the rhetorical nature of legal argumentation, which goes beyond the rigid structure of deductive reasoning. While legal “syllogisms” can maintain internal consistency, they are unable to encompass the entirety of a legal argument. Invariably, there will be missing premises or unexpressed assumptions that shape the reasoning process.
The Dobbs decision reflects the inherent complexity of judicial decision-making, where the Court must balance fidelity to legal precedent with responsiveness to evolving societal values. By overturning Roe after almost fifty years, the Dobbs majority engaged in a quasi-logical argument that, while exhibiting a veneer of deductive reasoning, ultimately relied on unstated assumptions and controversial premises reflecting the particular worldview of the justices who joined it. Justice Alito’s opinion models an enthymematic form of persuasive rhetoric in which the formal application of judicial tests obscures controversial moral and philosophical principles regarding privacy rights and bodily autonomy.
This strategic ambiguity is characteristic of skilled legal advocacy, allowing the audience to project their own values onto the gaps in logical reasoning. As a method for enacting this strategic ambiguity, the enthymeme represents not merely an abbreviated syllogism but a sophisticated rhetorical device for subtly encoding judicial activism in a framework resembling objective formal deduction. It enables the veiling of ideological assumptions within a superficially neutral analytical approach.
Critiquing legal opinions like Dobbs hence necessitates disentangling complex layers of rhetorical technique, including the decoding of strategic enthymemes. This more comprehensive orientation attunes legal scholars to the multifaceted interplay between persuasive communication and argumentation schemes in judicial decision-making. Ultimately, interpreting high-stakes rulings requires both rigorously assessing logical coherence and uncovering the symbolic meanings implicitly embedded within the Court’s enthymematic rhetoric.
Acknowledging the rhetorical nature of legal argumentation prompts a deeper understanding of the complexity and nuance involved in legal decision-making. It emphasizes that legal reasoning is not a simple exercise in deductive logic but rather a dynamic process shaped by legal precedent, statutory interpretation, policy considerations, and societal values. And recognizing the limitations of a purely syllogistic approach to legal reasoning encourages a broader appreciation of the multifaceted nature of the law. It invites a more comprehensive exploration of the interplay among legal doctrine, persuasive communication, and the social and political factors that influence judicial decision-making.
By embracing the rhetorical dimension of legal argumentation, we gain insight into the art of persuasion within the legal sphere. This perspective highlights the importance of effectively engaging with the audience, presenting compelling narratives, and deploying persuasive techniques to shape legal outcomes. It underscores that legal reasoning is not merely an exercise in logical deduction but also a means to influence and persuade, recognizing the significant role of rhetoric in shaping legal decisions.
Ultimately, a holistic understanding of legal reasoning goes beyond the confines of a rigid syllogistic structure. It requires an appreciation of the interplay among logic, rhetoric, precedent, and the broader social and political context in which legal decisions are made. By embracing this complexity, we can engage in more nuanced discussions about the nature of legal argumentation and its implications for the development of the law.
6.1 Introduction
On August 5, 1999, in the state of Washington, Kenneth Lee was stabbed in his apartment by Michael Crawford, who was accompanied by his wife, Sylvia Crawford. According to court records, Crawford believed that Lee had attempted to rape Sylvia at some earlier time, and the Crawfords were in Lee’s apartment to confront him. In an altercation, Lee was stabbed. When the police arrived, they arrested Crawford after Mirandizing both Crawford and Sylvia and interviewing them both twice. Because of Washington’s marital privilege which states, “a spouse or domestic partner shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner” (Washington Revised Code Annotated § 5.60.060(1)), Sylvia did not testify at Crawford’s trial. Instead, her tape-recorded police interviews were admitted (over objection by the defense) as (hearsay) evidence at trial. Such tape-recorded statements are considered hearsay, because there is no physical person – the person (Sylvia) who witnessed the event – to take the stand, swear an oath, testify in court, and be subjected to cross-examination.
Because the original witness, Sylvia, was not present and because Sylvia’s prior statements “asserted the truth of the matter asserted” (Federal Rules of Evidence, 2023), they are considered hearsay and are therefore objectionable. Further, because the tape-recording was played rather than having Sylvia take the stand and swear an oath to tell the truth, the defense had no opportunity to question the truth of her testimonial evidence in what Justice Scalia has called “the crucible of cross-examination” (Crawford v. Washington, 2003, p. 61). The Confrontation Clause of the Sixth Amendment (U.S. Const. amend. VI) promises the accused the right to confrontation. Because all those measures were not in place, Sylvia’s recorded interviews, though admitted through an exception in this case, were hearsay.Footnote 1
Hearsay is defined extensively throughout this chapter. For now, suffice it to say that hearsay is the process of repeating during in-court testimony a story that somebody else (not in court) told the witness on the stand and in which the repeated account is presented as substantive evidence of truth regarding the legal matter at hand. Hearsay is an account of an account, a story about an event that the witness on the stand did not themselves witness. In the case of Crawford v. Washington (here meaning the trial), Sylvia’s recorded testimony given to police in a prior context was hearsay because it was played outside of the context of sworn in-court testimony, rendering it impossible to cross-examine the truthfulness of the evidentiary statements in that recording. Though hearsay is typically inadmissible, there are many exceptions – occasions when hearsay can be admitted during a trial – such as was used in the Crawford trial. When these exceptions are applied, legal discourse and debate such as the ones analyzed here arise regarding when and how any hearsay may be admissible.
At trial, Crawford was found guilty. On appeal, the intermediate court upheld that verdict. The Washington Supreme Court upheld Crawford’s conviction after determining the hearsay evidence was both properly admitted and reliable. Ohio v. Roberts (1979) (hereafter Roberts), which was the US Supreme Court precedent when Crawford was tried, opined that hearsay may be admitted in line with the rights promised by the Sixth Amendment as long as the statements in question “bear adequate indicia of reliability” (p. 5) and “particularized guarantees of trustworthiness” (p. 66). Using a nine-factor test it had developed in line with this reasoning, the Washington Supreme Court upheld Crawford’s conviction, agreeing with the trial court that Crawford and Sylvia’s statements were “virtually identical” and “interlocking” (Crawford v. Washington, 2003, p. 66) and thus reliable and trustworthy enough to admit as hearsay. Crawford then appealed to the US Supreme Court. The US Supreme Court agreed to hear the case, citing the so-called Confrontation Clause of the Sixth Amendment when writing that “the question presented is whether this procedure complied with the Sixth Amendment’s guarantee that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him’” (Crawford v. Washington, 2003, p. 38).
Ultimately, hearsay is about language – when and how language can be/is trustworthy. The law is constituted in and of language, whether it be documents, statements, transcripts, testimony, precedent, or statute. Hearsay is a moment in the law where we hear the law talk about, discuss, and explain language in its own words. In legal precedents and treatises about hearsay, we hear the law asking many of the same questions about language that rhetoric does: How do we recognize an accurate account? What contextual parameters create a (perfectly accurate) linguistic account of an event? What role does the witness/speaker play in the creation of an account? And, ultimately, can we ever really trust language? Because law and rhetoric come up with wildly different answers to these questions, it’s important to dig into legal rhetoric and to understand how law’s view of language impacts all of us. In what follows, I argue that one of the things that happens when a statement is evaluated as potential hearsay is that the rhetorical consequences to the ethos of the speaker are ignored and scrubbed from the statement. Instead, the truth of the statement is linked to the circumstances under which it was spoken and the contexts to which the statement refers, positioning logos as the key, and, in the end, nearly only thing on which truth rests. In his Essay Concerning Humane Understanding, (hereafter, Essay) John Locke (Reference Locke1690) asserts that truth is objective, resting on the empirical, that which can be confirmed by material proof, or what I am referring to as logos. In hearsay legal discourse, the law sees truth in the same way. In this chapter, I put Locke, Aristotle, and the law into conversation to better understand the consequences that such a fetishization of logos has for ethos and ultimately the speaker in legal contexts where the stakes are high.
In the traditional, Aristotelian rhetorical structure, three rhetorical components operate together in the process of making nearly any argument: ethos, pathos, and logos (Aristotle & Kennedy, Reference Aristotle and Kennedy2006). For Aristotle (and this is by no means a definitive or comprehensive description), the appeals to ethos, pathos, and logos have to do with the relationship between an audience and a speaker discoursing about a particular topic. These so-called appeals are used by the speaker to persuade the audience of a particular truth and win the argument. For Aristotle, ethos is a feature of the text itself; ethos functions within the speech or document. Ethos is formed and performed through the discursive structure of the argument. Over time, the notion of ethos has been developed to encompass a sense of the credibility of the speaker; the reasons why they are believable; their standing in the community; their potential to speak the truth; and their trustworthiness in word and deed (Carlo, Reference Carlo2020; Hyde, Reference Hyde2004; Sullivan, Reference Sullivan1993). In other words, over time, ethos has been linked instead to the speaker’s credibility and character. Logos has to do with logic and proof, the argument’s evidence and logical structure. Pathos is the emotional thrust of the argument, its ability to resonate with and move the interlocutor.
For Aristotle, in order for an argument to be persuasive, it must leverage these three appeals in a more-or-less balanced way depending on the needs, opportunities, and constraints of the situation, and therefore perhaps focusing on one aspect more than the others, but still operationalizing the three. This typical relationship between ethos, pathos, and logos, or at least typical in rhetorical theory, is disrupted in evaluations of hearsay evidence. Pathos is disregarded nearly completely, and ethos and logos are sent into a dance in which logos is assumed to be objective and far superior to and more trustworthy than anything so closely related to subjectivity, which is situated in (and linked to) the ethos of the speaker.
In hearsay legal debates, the disruption of ethos/pathos/logos appears in discussions about the relationship between a statement and a speaker and how to identify an objectively true account, which the law believes exists, and which would be admissible hearsay. A key argument made in this chapter is that the legal reasoning circulated in hearsay statutory and case law works to disrupt the typical rhetorical relationship between a statement and a speaker, in which a speaker makes a statement for an audience with particular rhetorical goals, embedded in a particular context, stocked with constraints, actors, and actions. This disruption happens whether the hearsay statement is deemed inadmissible or admissible. The other argument in this chapter shows that this legal line of reasoning, which overemphasizes logos, is affiliated with Locke’s notions about truth and empiricism. Indeed, Locke had great influence on Anglo-American law in its early stages of development.
I will focus my discussion of Locke on the ideas and concepts that he presents in his Essay (1690), where he places high value on sensory experiential learning and the physical world that can be experienced with the senses. Language, for Locke, comes after sensing and is thus essentially less reliable. According to Locke, language is mere representation, only ever pointing, always secondarily, at the empirical. In his description, sensory experience and the empirical are truth’s only sources, which language is always lacking. Language is wholly removed from the empirical world and merely indexes that which is empirically grounded in knowledge, rooted in experience. The way to control and manage the unruliness of language, in Locke’s philosophy, is empiricism, a turning to the real world of experience and circumstances to locate truth, which puts pressure on ethos.
In this chapter, I trace and describe the ever-evolving (but remarkably consistent) historical, legal positioning of ethos and logos by analyzing hearsay statute, historical treatise, and precedential structure. I focus a significant part of this chapter on the US Supreme Court’s decision in Crawford v. Washington (2003), which provides us with a close look into the language ideology and rhetorical legal structures that are at the center of questions surrounding the trustworthiness of language. I also analyze the Lockean language ideology circulating in Ohio v. Roberts (1980) (hereafter, Roberts) and Davis v. Washington (2006), which the Court consolidated with Hammon v. Indiana (hereafter, Davis/Hammon). What it means to be a witness; what it means for an utterance to be reliable and trustworthy; what it means to give testimony – all of these concerns about language have deep roots in the crucial period of high modern thought during which Locke wrote.
In what follows, I demonstrate that Lockean thinking about language, empiricism, and truth is present and circulating in hearsay law. I use the discussion of high modern language ideology to argue that in hearsay legal discourse, the rhetorical structure of ethos/pathos/logos is altered to apply and accommodate the empiricism that is linked to objective truth for both Locke and law. This accommodation delinks the speaker from their statement, reducing ethos to nearly nothing and extending the role of logos to an extreme degree. The process of evaluating hearsay in judicial opinions renders the circumstances surrounding a statement into proof (logos). This process has the effect of pushing aside ethos, because it is always potentially untrustworthy and would need to be tested via cross-examination. By delinking the statement from the speaker through a process that exalts the circumstances surrounding the production of a statement, the statement is transformed into something that is indelibly linked to circumstances and therefore infinitely repeatable without (it is assumed) altering the statement or its relationship to empirical truth. In the law there is a “translation of people and events into legal categories so that they can be used strategically in a struggle for the dominant interpretation” (Mertz, Reference Mertz2007, p. 159). In the case of hearsay, the statement and speaker are hypostatized in isolation from each other, flattened and translated into legal artifacts. This odd diminished and diminishing account of the speaker and their statement relies on Lockean ideas about language, empiricism, and context that have been woven into hearsay law for over 400 years.
6.2 Creating a High Modern Rule against Hearsay
The story of hearsay is long, beginning in England in the late 1600s (Thompson v. Trevanion, 1694). Our modern version of hearsay is closely tied to its historical developments through precedent and the continued reference of legal texts that are used as though there are direct, clean lines between historical precedent and modern-day applications of law. Crawford v. Washington (2003) and Davis/Hammon (Davis v. Washington, 2006) are riddled with historical legal arguments from the early 1700s. Hearsay is a product of case law, organized systematically, indexed, and handed down through the ages in judicial opinion and historical legal texts such as the treatises, abridgements of philosophical texts, and abstracts of legal and philosophical texts, which present legal process, procedure, and expectations. Recent US Supreme Court opinions reference legal rulings and treatises from across the seventeenth, eighteenth, and nineteenth centuries.
Hearsay erupts in a time when the relationship between law and community was changing. In the early seventeenth century, most members of a jury were likely to already know each other and have knowledge of (and even discussed) what had happened in their communities. Communities were small enough for there to be more intimate knowledge of the goings on of its members (Landsman, Reference Landsman1992; Langbein, Reference Langbein1996). Hearsay rules were unnecessary, even in jury trials, because the jurors likely already had prior knowledge of and were connected more closely to all aspects of the legal situation and actors – the accused, witnesses, events, and so forth (Landsman, Reference Landsman1992; Langbein, Reference Langbein1996). As communities grew and diversified, the intimate aspects of community knowledge began to break down. Changes in the language theories and philosophies were also evolving. Out of these changes grew a need to control statements in legal settings. Witnesses were expected to give accounts based on what they knew (had seen) from first-hand interaction with the empirically grounded world (Landsman, Reference Landsman1992; Langbein, Reference Langbein1996). They were not allowed to give accounts of what they had heard second-hand.
At the same time that laws and communities were changing, so were views about language. During the eighteenth century, language became a “mere” medium, only a conduit for information and experience, functioning through mimicry and representation (cf. Foucault, Reference Foucault2001). Locke’s Essay (Reference Locke1690) takes up questions of human knowledge, experience, and reasoning, considering the ways humans learn from sensory experience and learn to reason and use language both individually and socially. Locke argues that the knowledge of things and words was not innate but rather developed through sensory experience. He writes:
The Idea’s [sic] themselves, about which the Proposition is, are not born with [individuals], no more than their Names, but got afterwards. So, that in all propositions that are assented to, at first hearing the Terms of the Proposition, their standing for such Idea’s [sic], and the Idea’s themselves that they stand for, being neither of them innate.
According to Locke, neither ideas nor words are innate. Ideas and words are learned, laid down through experience, in an indexical, rhetorical relationship in which ideas and words point at experience, which provides the foundation of the true. Words are an impression of the empirical world on the so-called tabula rasa of the human mind. As Locke put it, “the Mind” is a “white Paper, void of all Characters, without any Ideas” (p. 37). According to Duschinsky (Reference Duschinsky2012, p. 513), “in the immediate context in which Locke was writing, the term tabula rasa was a familiar image,” likely due to the Aristotelian revival of the early seventeenth century. In On the Soul, Aristotle writes, “what [the mind] thinks must be in it just as characters may be said to be on a writing tablet on which as yet nothing actually stands written” (Aristotle, n.d., III.4). That is, the mind only has in it that which was written down in it via experience with the world. Nothing is innate.
Circulating in the late eighteenth century were ideas about the relationship between word and world. Some argue that before this time period, people considered the world and the world to be seamlessly connected, even entirely integrated (Foucault, Reference Foucault2001). In the modern period, when Locke was writing, language became separated from the world such that the word merely indexed the world, which is more real and credible than its representation in language. At the end of Book IV of the Essay, Locke asserts a division between language and empirical experience explicitly, categorizing the objects of understanding as: (1) “things as they are in themselves knowable” (physica); (2) “Actions as they depend on us in order to [achieve] Happiness” (practica); and (3) methods for interpreting the signs of what is, and of what ought to be, that are presented in our ideas and words (logica) (Locke, Reference Locke1690, p. 362). This short extract divides nature, language, and human behavior into three distinct categories: “things,” “actions,” and “methods.” These elements are sharp, operating separately and rationally. “Things,” or “physica,” are knowable through sensory experience. “Actions” are what humans do to manage a practical and productive life, operationalizing both “things” and “methods.” “Methods” are directly related to language and the interpretation of signs and words. In this construction, methods and language are removed from things. They are not overlapping. Their boundaries are clear. “Things” are knowable. “Methods” are merely interpretational.
One place where we see tight linkages between eighteenth-century philosophy and eighteenth-century law is in Sir Geoffrey Gilbert’s Reference Gilbert and Locke1752 abridgement of Locke’s Essay. Gilbert is adamantly against the admission of hearsay, and he structures his arguments in ways that reference Locke both directly and indirectly. Relying on Locke, for Gilbert, hearsay is language and not empirical experience; language is distant from the empirically grounded world; language is not truth. Truth resides in empirical experience. Hearsay is repetition, too far removed from the empirical world of experience to be tolerated by the burgeoning young law with its links to Locke.
In Gilbert’s abridgement of Locke’s Essay, the two scholars collaborate in a claim that what is knowable is the “being and existence of things not language” (Gilbert & Locke, Reference Gilbert and Locke1752, p. 264). Sounding very much like Locke, Gilbert asserts that “language is nothing else but the connection of sounds to ideas” (p. 264). In eighteenth-century empiricist theory (readily translatable to law), knowledge lives in things, the material world. Language is disconnected from the material, from “things,” from knowledge. According to this theory, language functions through representation, doing little more than indexing what is true and knowable in the material world.
The rule prohibiting hearsay is related to a set of ideas that cross paths with, reproduce, and reimagine those presented by Locke in the Essay, namely the high value placed on first-hand empirical knowledge – the eyewitness. The heavy emphasis on the empirical creates space for logos to be elevated and ethos to be diminished. Logos is where truth resides. Ethos is irrelevant because of its links to subjectivity, which can never be trusted on its own. The earliest legal documentation of hearsay, the English case Thompson v. Travanion, dates to 1694, only four years after Locke’s Essay was published in Reference Locke1690. Arguments about hearsay going back to at least 1785 conceive of hearsay as nothing more than speaking, which is inferior, not to be trusted. John Pitt Taylor, quoting English Justice Francis Buller, called hearsay “a mere speaking” (Taylor, Reference Taylor1872, p. 521). Put quite succinctly in another English case, Chettle v. Chettle (1821): “What is the evidence here? Mere hearsay. Nothing seen”; evidence that is visually witnessed prevails. In this construction, statements are clearly connected to the speaker through sensory experience, but they come after sensory experience. Statements are lesser. The tight focus on sensory experience puts the thing that happened, logos, at center stage of the “true.” That is, truth can only be considered truth when it is directly related to empirically derived experience and knowledge. The speaker, their ethos, and their linguistic account are a deterioration of sensory experience. Hearsay further degrades the empirical because it is doubly removed from Locke’s notion of “things.” Hearsay rests only on the precarious and unsteady foundation of language rather than the empirical steadiness of “things.”
Locke makes a claim about language, empiricism, and truth directly when he writes: “Any Testimony, the farther of it is from the original Truth, the less force and proof it has. The Being and Existence of the thing itself, is what I call the original Truth. … [I]n traditional Truths, each remove weakens the force of the proof” (Locke, Reference Locke1690, p. 338). That is, language is a weak proof. Indeed, language mutes the material proofs because they are distant from “the original truth”:
Hearsay is no Evidence … if a Man had been in Court and said the same Thing and had not sworn it, he had not been believed in a Court of Justice; for all Credit being derived from Attestation and Evidence, … such a Speech makes it no more than a bare speaking.
Hearsay is not evidence because it is “bare speaking” – nothing more than language divided from those aspects of the material world that might make it trustworthy, namely the speaker (to cross-examine) and the material world that it references (circumstances). In Crawford v. Washington (2003), Justice Scalia connects to this eighteenth-century concern with language, referencing Gilbert directly.
Language is only ever “a bare speaking” in the law unless the gap between the empirical and the linguistic is tightened and controlled. In The Law of Evidence, Gilbert writes:
The Attestation of the Witness must be to what he knows, and not to that only which he has heard; for a mere hearsay is no Evidence: for it is his Knowledge that must direct the Court and Jury in the Judgement of the Fact. … If the first speech was without Oath, an Oath that there was such a Speech makes it no more than a bare speaking.
By repeating full phrases from his earlier works, Gilbert reasserts a ban on hearsay. The goal of the rule against hearsay is to determine what can count as evidence. As Gilbert puts it elsewhere, “nothing can be more ‘indeterminate’ than loose and wandering ‘Testimonies’ taken up on the uncertain Report of the Talk and Discourse of others” (Gilbert, Reference Gilbert1791, p. 890). Here, wandering testimonies, reports, talk, and discourse are presented as synonyms for bad evidence. Hearsay rests on the unsteady ground of language. Thus, hearsay does not meet the requirements of logos – it has no substance – which is demanded by the law. Because of this emphasis on empirical evidence, logos, in debates about whether a hearsay statement may be admissible, the law misunderstands the full rhetorical structure of a statement, rendering ethos moot at best and dangerous (read subjective) at worst.
6.3 A Contemporary Hearsay Rule
Essentially a product and representation of legal language ideology, the rule against hearsay (and all of its exceptions) is developed in the US Federal Rules of Evidence (2023), officially adopted in 1972 and most recently reviewed, revised, and re-ratified in 2023. Rule 801 (Federal Rules of Evidence, 2023) in the US Federal Rules of Evidence defines the rule this way:
The following definitions apply under this article:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
A statement, in this configuration, is an assertion, whether written, verbal, or gestural, given as evidence toward and about the truth of the statement inasmuch as it indexes the legal matter at hand – the evidence asserted as a true account of what happened. A statement is made by a declarant. A declarant would typically be the person who witnessed the crime; in hearsay law the declarant is the person who made the original statement, a witness to the crime, the person who witnessed the event in question. The declarant is not the person on the stand who merely parrots the words of some other person. Hearsay is a statement of evidence that speaks directly to the alleged crime under legal evaluation, asserting the truth of what happened, and offering evidence about the crime. It is made in court by somebody who did not themselves witness the events about which the claims are made. Hearsay, then, always involves a speaker on the stand who narrates a prior statement about a prior event that they only heard about secondarily but did not witness themselves. Typically, such an evidentiary statement that “asserts the truth of the matter” would be given only in the context of testimony about the declarant’s first-hand experience, which would then be subjected to direct and cross-examination. In court, such a declarant bears witness to that which they have seen with their own eyes. When hearsay is involved, the person who takes the stand is not the original speaker who saw the event and who can be cross-examined, as per the Sixth Amendment (U.S. Const. amend. VI), but rather it is another person, the person to whom the declarant spoke after the fact (or was recorded and replayed after the fact), and their testimony is typically not admissible (Federal Rules of Evidence, 2023, Rule 8.2). Therefore, the admission of hearsay (potentially) runs afoul of the US Constitution, and it is that exact relationship – between hearsay and the Sixth Amendment – that is debated in criminal courts and especially in this argument, by the US Supreme Court.
There are some twenty-three exceptions to the hearsay rule (Federal Rules of Evidence, 2023, Rule 803), and therefore, there can be long and extensive analyses of which types of out-of-court, truth-bearing utterances may be admitted. I am arguing that the hearsay rule is structured and worded as though it is about the utterance, the hearsay statement presented in court, when in fact it assesses the original speaker in many different ways, more, in fact, than it assesses the utterance. This legal deconstruction of the hearsay rule, which displaces the utterance in favor of a discussion of the speaker, envisions a relationship between ethos (the credibility and trustworthiness of the speaker) and logos (empirical proofs that work against the speaker).
6.3.1 Ohio v. Roberts (1980) and Its Demise
In the mid-to-late twentieth century, a number of cases take up the issue of hearsay. Our more recent story about hearsay begins with Roberts (Ohio v. Roberts, 1979). Roberts’ rhetorical structure helps shift the analytical focus away from ethos – the credibility of the speaker – and toward logos – empirical evidence presented as truth. In so doing, Roberts surreptitiously dismisses ethos from the equation, just as Locke and Gilbert would have it. The analyses of hearsay in the Supreme Court evident in reading the precedent in the law itself, including Roberts, regularly push off accounts that can be linked to individual subjectivity as fallible and thus inadmissible. Only those linked to the empirical world that somehow circumvent the now dismissed ethos of the speaker are found to be admissible.
There are a number of heuristics circulating in case law that operationalize the rulings of the US Supreme Court. They are used in lower courts to evaluate and measure a proposed hearsay statement. According to Crawford v. Washington (2003), the well-used heuristics established in Roberts (Ohio v. Roberts, 1979), written by Justice Blackmun, run afoul of the Sixth Amendment. In Roberts, Roberts was accused of forging a check and possessing stolen credit cards belonging to Bernard Isaacs and his wife. Roberts claimed that Issacs’ daughter, Anita, had given him the check and credit cards to use. During long and extensive questioning at a preliminary hearing, Anita denied Roberts’ claim that she had given him the stolen items. Though she was subpoenaed several times, Anita did not appear at Roberts’ trial. Because Anita could not be found and against the hearsay objections of the defense, Anita’s prior testimony from the preliminary hearing was admitted as hearsay during the trial. Roberts was found guilty based on the admission of Anita’s hearsay evidence. The case was nearly immediately appealed, with the appellate court finding that the trial court had not tried hard enough to find Anita and that they erroneously admitted her prior testimony. The Supreme Court agreed to hear Roberts (Ohio v. Roberts, 1979) and take up, again, the issue of hearsay.
The test developed by the Supreme Court in Roberts relies heavily on two sociolegal constructions. First, hearsay can be admitted if it fits within a “firmly rooted hearsay exception” (Ohio v. Roberts, 1979, p. 66) This component of the hearsay test points directly back to the framing of the US Constitution – any hearsay exception in place when the Sixth Amendment was conceived is typically deemed valid. If the exception was not a part of longstanding tradition, according to Roberts, admissible hearsay must be shown to bear “particularized guarantees of trustworthiness” (Ohio v. Roberts, 1979, p. 66). Roberts’ formulation rests heavily on a largely under-defined conception of “trustworthy” and the related concept “reliable.”
Relying heavily on the 1895 opinion Mattox v. United States (1895, hereafter Mattox), Roberts (Ohio v. Roberts, 1979) affirms the requirements of confrontation. According to Mattox,
a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.
In this late nineteenth-century precedent, Mattox focuses attention on the declarant. For our purposes, there are two important concepts in Mattox that interlock: “conscience of the witness” and “worthy of belief.” In 1895, when watching a person give testimony, the jury was looking for imperfections and inconsistencies in the testimony, but they were also required to assess the conscience of the witness: their trustworthiness and believability. Their ethos. By analyzing the conscience of the witness, the jury can determine whether that person was “worthy of belief,” that is, trustworthy. Hearsay in Mattox is inadmissible because it disallows the jury from evaluating the witness’ ethos.
The requirement for hearsay to match the requirements of in-court, on-the-stand testimony as explained in Mattox v. United States (1895) positions ethos as an important feature of law at that time. Mattox asserts that only hearsay that meets the standards of an in-court performance of ethos tested in cross-examination is admissible. In at least this one iteration of hearsay (Mattox), the relationship between the speaker and the audience somewhat follows typical rhetorical lines of logic: The speaker makes assertions of truth to which legal rules and procedures are applied and, in the process, the speaker’s worthiness, conscience, and trustworthiness (ethos) are assessed by the audience, in this case a judge and jury (pathos), in order for the evidence (logos) to be presented and accepted as true.
Because Mattox v. United States (1895) places so much emphasis on the witness on the stand, when hearsay is admitted, the speaker’s ethos is positioned in such a way as to be open to peril and ultimately to erasure. In demanding an original witness, Mattox asserts extra weight on the importance of empirically grounded, experiential truth in relationship to arguments about the speaker. In discussions about hearsay and their heightening attention to the ethos of the speaker on the stand as they are related to the truths found in the material world, Mattox opens room for the ethos of the speaker who is not on the stand to be suppressed when the speaker is unavailable. This is because the person with empirical knowledge is not testifying. This assertion ultimately lays the groundwork for ethos to be suppressed altogether. Let me explain. When the spotlight is put on ethos and logos as they are in Mattox, logos is isolated from the speaker, seeming to work independently from ethos. Logos refers to the world of lived experience, while ethos refers back to the speaker of the utterance in question, alone. Here as well as elsewhere in the law, then, ethos is disparaged precisely because it is unique to the individual and must be assessed as such. The relationship of logos to objectivity is wildly preferred.
In its application of Mattox v. United States (1895) and other precedents, Roberts (Ohio v. Roberts, 1979) works to isolate logos in order to render it open to evaluation on its own. For example, Roberts applies Mancusi v. Stubbs (1972, hereafter, Mancusi) (which itself quotes from precedents, which also quote from precedents, and so on ad infinitum). According to Roberts: “The focus of the Court’s concern has been to ensure that there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant…’” (Ohio v. Roberts, 1979, pp. 65–66, quoting Mancusi v. Stubbs, 1972).
Using Mancusi v. Stubbs (1972), Roberts (Ohio v. Roberts, 1979) ultimately shifts from an evaluation of the ethos of the speaker/witness (Mattox) to an evaluation of the statement, isolating the statement and assessing it only in terms of logos – empirical proof. In Mancusi, the statement is “placed,” passive voice, before the jury with the speaker of the statement grammatically removed. This grammar makes it seem as though there was no speaker behind potentially admissible hearsay at all, which, in fact, resonates throughout this case law. Only delinked from a speaker and their ethos can a statement bear the so-called indicia of reliability and be admitted as hearsay. This procedure is possible because the speaker (ethos) has been first isolated and then excluded in legal discussion and debate.
The shift away from the speaker and toward the statement makes one further shift in Roberts (Ohio v. Roberts, 1979) away from an evaluation of ethos. The notion “indicia of reliability” that Roberts relies on uses precedential chains that reach backward to eighteenth-century ideas about reliability. Dutton v. Evans (hereafter Evans) also cited in Roberts, argues: “circumstances under which [the out-of-court speaker] made the statement were such as to give reason to suppose that [the out-of-court speaker] did not misrepresent [the accused’s] involvement in the crime” (Dutton v. Evans, 1970, p. 10). This reliance on circumstances to indicate the trustworthiness or reliability of the statement is one place where we see Locke’s language ideology peek through. Indeed, when the speaker is divided from the statement, circumstances – material conditions – become even more important and ethos is rendered immaterial, in every way that word can mean. The reliance on circumstances to provide assurance of truth when the speaker is unavailable to take the stand and be assessed is operational precisely because circumstances are empirical rather than linguistic, therefore placing such a statement closer to the truth. According to the logic of the law, “circumstances” (we can call them events and contexts) can render some statements inherently true. “Circumstances” are truths from the empirical, material world, and, as such, the law proposes, they control, even counter, the natural subjectivity of the speaker, creating space to push the speaker out of the equation completely.
6.3.2 Enter Crawford (2004) and the Redefinition of Hearsay
I turn attention now back to Crawford v. Washington (2003) and to Davis/Hammon (Davis v. Washington, 2006), both of which were written by Justice Scalia. For Justice Scalia, when analyzing a case and writing a Supreme Court opinion, “historical inquiry” is entirely relevant, if not required, in order to accurately understand the original meaning of any document, but especially a legal document (see Hannah & Mootz, Chapter 2 in this volume). In Crawford and Davis/Hammon, Justice Scalia uses historical research and performance when he insistently relies on (his interpretation of) the lexical and legal knowledge of the Framers. When Justice Scalia writes the following in Crawford, he is very clearly presenting a seventeenth-century-language ideology: “Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability’” (Crawford v. Washington, 2003, p. 61). Justice Scalia very obviously and purposefully inserts and applies his linguistic and legal language ideology about original intent in his opinions about hearsay. As he said in an interview, “words have meaning. And their meaning doesn’t change” (Senior, Reference Senior2013).
Crawford v. Washington (2003) overturned Ohio v. Roberts (1979) by operationalizing new terms, definitions, and rhetorics that have tighter restrictions and more stringent methods for evaluating hearsay, but that, nevertheless, share its language ideology, relying heavily on empiricism and further eradicating the desirableness of speaker ethos. As Justice Scalia presents them, the terms and concepts in hearsay discourse are defined in ways that explicitly and directly link present case law to historical texts and definitions through the copious use of eighteenth-century precedents and legal treatises.
Recall that Crawford v. Washington (2003) was a case in which a man, Lee, had been stabbed by Crawford, and in which Sylvia Crawford’s police interrogation was admitted as hearsay when Crawford invoked his marital privilege (explained further above). In Crawford, Scalia begins his arguments with a reference to a dictionary definition of the term “witness” published in 1828. Crawford states,
The text of the Confrontation Clause reflects this focus. It applies to “witnesses” against the accused – in other words, those who “bear testimony.” 2 N. Webster, An American Dictionary of the English Language (1828). “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.”
First, note that the dictionary referenced in Crawford is as close to the time of the Framers of the Constitution as Justice Scalia could find – the 1828 edition. In that 1828 dictionary, a “witness” is a person “who bear[s] testimony.” This is not controversial. In the context of the law, it gestures quite obviously to in-court testimony. A witness, according to this dictionary from the early nineteenth century, “bears testimony.” According to the same edition of Webster’s dictionary, “testimony” is a “declaration or affirmation made for the purposes of establishing or proving some fact.” The passive construction of this definition excises the speaker of the declaration. Locke would be proud.
The concept of witness is the central concern of the Confrontation Clause of the Sixth Amendment (U.S. Const. amend. VI) (even though most of the discussion in hearsay case law in the twenty-first century has been about the statement), and so the Supreme Court must begin with the “witness.” However, the real work in this reframing of hearsay is with “testimony.” This case law presumes that testimony comes prior to the act of being a witness in the process of giving what the court deems inherently testimonial; in this process, the declarant is automatically transformed into a witness, who must always have been acting as a witness, regardless of whether they were on the stand, under oath, or are even aware of their witnessing. The involvement of a witness animates the requirements of the Confrontation Clause. (In the Sixth Amendment, the accused is promised the right to confront their accusers, so the witness must be present in the equation of hearsay.) The process of evaluating hearsay within this definition’s structure – the one that puts testimony in front of witnessing – removes the statement from the real, in-the-world speaker (Sylvia and others) and relinks it instead to a legal abstraction, witness, and ultimately to the circumstances in which and about which the statement is made. It is these circumstances that indicate whether a statement is testimonial, and it is testimony which proves the presence of a witness. With these legal acrobatics, the statement is transformed into evidence (or hearsay) that has nothing to do with the speaker or their ethos; it has to do only with the legal formation, witness. These statements are constructed out of logos – the empirical. Testimony relies only on circumstances for its relationship to real knowledge and truth. The formation of witness follows the identification of testimony. It is the empirical world, the circumstances, that can verify the truthfulness of testimony. It is no longer the “conscience” of the witness (Mattox v. United States, 1895). Moreover, it is testimony that produces a witness, which functions as sort of an abstract for anybody, not only the person whose utterance is in question.
To restate my argument, legal discourses transform a statement made in the world into legally recognizable testimony, by overemphasizing logos and censoring ethos. This takes the statement functionally away from the speaker by transforming the speaker into the legal abstraction, witness, which is equated with a speaker on the stand but should not be confused with an embodied person. In this way, Crawford v. Washington (2003) delinks the speaker from the statement, because testimony is always spoken by a witness, but testimony is proved not through reference to the witness but rather through reference to circumstances. However, in evoking the abstraction, witness, the Sixth Amendment to the Constitution is called into play. If the speaker is a witness (in or out of the courtroom and whether or not they know they are a witness), then the requirements of the Confrontation Clause must be satisfied. Any utterance deemed testimonial must be cross-examined.
It is the circumstance, the logos, that proves the testimonialness of a statement, and, in the process, an abstract witness is produced who has no ethos. According to the Supreme Court, Sylvia Crawford’s recorded police interrogation was testimony and thus Sylvia was acting as a witness even though she was not in court and had not sworn an oath, and even though she likely had no idea that she was acting as a witness in the legal sense. These two paired concepts have the power to reach through time, pulling people into their abstracting capabilities – turning real people into abstractions – and altering their relationship with their own speech.
After giving the dictionary definitions discussed above, Crawford goes on to say:
An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.
In other words, some declarations are testimonial in the legal sense, even if they are produced out of court, while others are objectively not testimonial. And importantly, statements are testimonial not because the speaker was an in-court witness, but because of the circumstances surrounding the production of the statement, even those outside of the courtroom, indicated that the speech was testimonial. The trustworthiness of testimony is a feature of logos alone.
6.3.3 Enter Davis/Hammon (2006)
Davis/Hammon (Davis v. Washington, 2006), also written by Justice Scalia, supplies a single opinion for two cases as a way of rectifying perceived misapplications of law in lower courts. In one case (Davis), the Supreme Court admits hearsay as constitutionally sound, and in the other (Hammon), the Supreme Court determines that the hearsay is not admissible. Davis and Hammon are both domestic violence cases. In Davis, Michelle McCottry called the police when she was being assaulted by her former boyfriend, Davis. On the phone with 911, McCottry exclaimed, “he’s here, jumping on me again” (Davis v. Washington, 2006, p. 877). Police arrived four minutes after she called 911 and observed that McCottry was “frantic.” The excited utterance exception to hearsay, which was used in Davis, hinges on the emotional state of the speaker; the speaker must be shown to be “frantic,” “hysterical” (cf. Andrus, Reference Andrus2015). McCottry did not appear at Davis’ trial, and so her statements to 911 were admitted using the excited utterance exception to hearsay. These statements are hearsay because the person who said them – McCottry – was not available in court to be cross-examined. McCottry’s “excited utterance” is nevertheless determined admissible by the Supreme Court because it is inherently “nontestimonial,” that is, not spoken by a witness.
Hammon (Davis v. Washington, 2006) involves an assault by Hershel Hammon on his wife, Amy Hammon, resulting in a call to police, who responded to a “domestic disturbance” (p. 819). When they arrived, police found Amy sitting outside on the front porch. She appeared “somewhat frightened” but told them that “nothing was the matter” (p. 819). She gave police permission to enter the home, where they found a broken heater and other broken household objects. As is usual, officers separated Amy and Hershel and questioned them individually. After hearing Amy’s account of what happened, the police officer questioning her had her fill out a battery affidavit. Amy did not appear when she was subpoenaed to Hershel’s bench trial. Her statements to police when they arrived at her house were not admitted at trial as excited utterances because Amy appeared too calm when officers spoke with her. The battery affidavit, however, was admitted at trial. The Supreme Court disagreed with this decision. Amy’s statements were determined “testimonial” and were thus excluded because Amy had been acting as a witness when she spoke with police.
The arguments in Davis/Hammon (Davis v. Washington, 2006) compare and contrast the two cases, using the newly minted Crawford v. Washington (2003). At the center of the arguments in Davis/Hammon is the renewed p/re/conception of what it means to give testimony and act as a witness. Ultimately, Davis/Hammon reinforces the arguments in Crawford that some hearsay statements can be admitted without cross-examination, using the reasoning that they are obviously legally and semantically stable, reliable, and trustworthy because of their close relationship to the empirical world and the absence of speaker subjectivity/ethos. Some statements do not give testimony, they are not spoken by a witness, and therefore they don’t need to be cross-examined. Others are testimonial and as spoken by a witness.
In the recapitulation of the legal reasoning established in Crawford v. Washington (2003), Davis/Hammon makes the following argument:
A critical portion of this holding, and the portion central to resolution of the two cases now before us, is the phrase “testimonial statements.” Only statements of this sort cause the declarant to be a “witness” within the meaning of the Confrontation Clause. … It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.
The Supreme Court therefore determines that McCottry’s statements to 911 were nontestimonial (Davis), while Amy Hammon’s affidavit were testimonial. Davis/Hammon explicitly states that a testimonial statement “cause[s]” a person to become a witness. This is some kind of legal magic. According to Davis/Hammon, legal procedure and evaluation transform a person into a witness and in that process, the speaker is divested of their subjective, rhetorical link to their own language, cutting off ethos in perpetuity. Indeed, it is presumed that such a link never existed. The admissible statement is the product of the circumstances in which the statement is uttered. The speaker in this rhetorical construction is positioned as a sort of legal, vestigial tail.
Davis/Hammon goes on to further clarify the distinction between testimonial and nontestimonial:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency [Davis]. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution [Hammon].
Notice in this quotation that the use of the word “objectively” (again) relates us directly to Locke and his theory of truth, rooted in high modern notions of the relationship between language and the world of experience. In Crawford, “objective speakers” such as Amy Hammon, who was sitting on her front porch having just been assaulted, should know, according to legal logic, that her words were likely to be used in court. In that moment, as a reasonable person, she must have known that in talking to police, she was bearing witness. Or so the legal reasoning goes. Davis/Hammon further develops the distinction between testimonial and nontestimonial by introducing the concept “primary purpose” (Davis v. Washington, 2006, p. 822). In the “primary purpose” assessment, it is the “circumstances” that behave objectively. These objective circumstances – not the speaker – indicate what kind of statement it is: testimonial or nontestimonial. To be clear, hearsay is not a statement existing in some accessible past event, waiting to be located in the world and simply plucked out of the circumstances. What I am showing in this analysis is that these statements – testimonial or nontestimonial – are framed, constrained, and produced in the law; their supposed objectivity is a legal construct that the law itself refuses to see.
The rhetorical force of the statement in this legal context is established by analyzing the circumstances and the “primary purpose” (Davis v. Washington, 2006, p. 822) for which the statement was elicited. Circumstances such as an ongoing emergency produce a statement that can be considered nontestimonial, while a discussion with police would be considered (always and already) testimonial. Amy Hammon’s statements are excluded, labeled hearsay, because their primary purpose was to answer police questions, which an “objective speaker” would have known could be used later in court. Michelle McCottry’s statements, on the other hand, were a cry for help, and were therefore admissible as objective accounts of what really happened. McCottry’s speech was nontestimonial because she was asking for help. The “primary purpose” in both cases is determined by the context, the circumstances (i.e., the logos), surrounding the production of the statement, not by assessing the speaker, who is of course structurally absent.
The Davis/Hammon court therefore asserts that Amy’s statements given “under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial” (Davis v. Washington, 2006, p. 830). Because police ask questions in similar ways as lawyers in court do, the resultant statements are assumed to function identically to in-court testimony. Not to get into the virtually innumerable ways that police and lawyer questioning are different. Circumstances, not the speaker, have discursive agency in both testimonial and nontestimonial configurations; they are two sides of a coin, proving each other correct. The speaker of a testimonial statement is translated into an always witness, a linguistic, rhetorical construction that places empirical circumstances at the helm of identifying the truth. And with that, the delinking of the statement from ethos is complete.
6.4 Conclusions
The legal language ideology apparent in the hearsay rule, along with its exceptions, uses a Lockean language ideology to re/organize and re/structure the relationship among ethos/pathos/logos, subjectivity/void/objectivity, and speaker/void/empirical evidence. In Crawford v. Washington (2003) and Davis/Hammon (Davis v. Washington, 2006), testimony is moved out of the courtroom to any place that a person could be speaking in circumstances that indicate that the statement is empirically true and that the person would necessarily know that their speech may be used later in court as testimony. When testimony is placed out in the world like this, the speaker is forced to bear witness without a connection to their own ethos, regardless of their discursive, rhetorical desires, and without the trappings of the courtroom context. The heavy reliance on logos transforms ethos into a forced, empty position. Witnessing becomes a product of legal reasoning, rather than an in-court, visible, literal procedure, and, as such, it can be applied to any speaker, speaking in circumstances that empirically proclaim that the statements produced therein are always already testimony. The orphaned statements that result from and are produced in hearsay discourse are hypostatized. They are diminished rhetorically, reduced to a subjective/objective dichotomy.
When hypostatized, statements lose their rhetorical flux and semantic flexibility. Speakers, too, suffer rhetorically and semantically through legal sedimentation. They are either witnesses or not, objectively. In either case, the speaker’s relationship to their own speech is weakened if not dissolved. To be clear, I don’t necessarily think a statement belongs to a speaker in a totalizing way. From a postmodern rhetorical approach, statements are produced by a broad set of actors, events, social discourses, and the like, all engaged in interaction. The ways in which the rule against hearsay dismisses human agency and instead positions it on the text may seem aligned with postmodernity. However, this dismissal of the speaker and their agency doesn’t disbelieve in sovereign agency; it merely rearranges the position of agency in the rhetorical situation. What interests me in this discourse is the fact that the law does not take into account the effects of social discourses, interaction, the productive effects of cultural values, the broader relationship between events, or the like, on things such as testimony (logos/language) and witnessing (ethos/embodied person).
I have argued that legal reasoning, similar to Lockean theories of language, identifies reality in events which are considered to be finite, real, and identifiable. Witnesses are instrumentalized such that they are legally useful. And this is the problem. Not only is semantic and rhetorical access to the statement undone in the evaluation of hearsay, but it is also undone in such a way as to instrumentalize the speaker and erase their ethos. Such a structuralist language ideology idealizes and obsesses over the empirical. Buried within the legal contest between “testimonial” and “nontestimonial” is the idea that signification and meaning are only the product of sensory experience that is translated into words and that are only true when they mean the same thing for everyone forever because of their relationship to the “real” world.
I have shown that the dismissal of ethos in favor of all logos all the time is more closely related to high modernity, structuralism, and a Lockean language ideology. Language is always problematic in a Lockean rhetoric, because, in his representational model of language, language is merely indexical and lesser than the empirical world of experience. Language is itself not real. Language is merely a channel for the empirical. Perhaps unexpectedly, a byproduct of this view of language is the dismissal of not only the important work that language does for and in the law (in a set of laws about language, no less), but also the dismissal of the pivotal role that speakers play in the rhetorical production of their speech. According to the legal reasoning circulating in hearsay legal discourse, if language is built on the unknowns that speakers bring to the rhetorical equation (motive, intention, emotion, etc.) rather than on a foundation of sensory experience, if language is not moored to something empirical, then it will float away into semantic chaos where it will not be legally useful.
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