Constitutional experts parse "lipstick on a pig"
Noted liberal constitutional theorist Lawrence Lessig and the prominent conservative appellate lawyer Erik Jaffe bring their interpretive skills to bear on a crucial text. The Second Amendment? No: Barack Obama's statement that McCain's attempt to portray his campaign as the one that will reform Washington amounts to "putting lipstick on a pig."
Was that an outrageous, sexist dig at Sarah Palin, as the McCain team says? On the Web site of the Politico, Lessig, a professor at Stanford Law, calls this a
shameful misuse of what Obama said. Talk about a question of judgment: If a student of mine had read what Obama said in context, and then suggested he was really talking about Palin, I would seriously worry about whether we should arm that student with a law degree. But a law degree is a much less dangerous power than the Presidency.
Jaffe, a former clerk of Clarence Thomas and now a solo appellate practitioner in DC, retorts:
Surely Professor Lessig would concede that such double meanings are a common rhetorical tool. In this instance, therefore, Professor Lessig's supposed "truth" -- that the comment was in no way directed at Palin -- is nowhere near as obvious as he suggests. (Note here my sigh of relief that I am not one of Professor Lessig's students subject to his grading system … )
Every wonder whether lawyers' political leanings might shape how they view the Constitution? (Perish the thought!) Anyway, in this example of textual interpretation, politics certainly seems to have reared its lipstick-adorned head.
One of the questions raised in the exchange is whether the press is too mealy-mouthed in adjudicating these disputes. So I hereby grant cert. In theory -- in some other hypothetical case -- Jaffe could be correct. In this instance, however, considering the context and having heard the evidence, I rule in favor of Lessig. It's a totally ginned-up controversy.
It is so ordered.
(The Politico makes it hard to to link to specific exchanges on this part of its Web site, but the whole "lipstick on a pig" thread appears here.)
Via Romenesko.
