Journal of Diplomatic Language
JOURNAL OF DIPLOMATIC
LANGUAGE
JDL II:1 (2005)
Stealth Rhetoric: Tacit Metaphor in Bush v. Gore1
by
Lin Suzanne Allen,
Department of Communication,
501 20th Street, Campus Box 99,
University of Northern Colorado,
Greeley, CO 80639,
Anuket17@aol.com.
Lin Allen is a tenured Associate Professor specializing in Rhetorical Theory, Rhetorical Criticism, and Courtroom Communication, and is faculty mentor for a pre-law learning community, Law and Order. Allen earned an M. A. in Communication Arts from the University of Wisconsin-Madison and a Ph.D. in Rhetoric from the University of Oregon.
James A. Keaten,
Department of Communication,
501 20th Street, Campus Box 99,
University of Northern Colorado,
Greeley, CO 80639,
James.Keaten@unco.edu.
James A. Keaten is a tenured Professor specializing in Intercultural Communication. He is the Director of Graduate Studies in Communication at UNC and earned a Ph.D. in Speech from the Pennsylvania State University. He has been selected as a Harvard Fellow for a fall 2005 Sabbatical focusing on Inter-faith dialogue.
Deborah Brillard,
4629 West 23rd Street,
Greeley, CO 80634,
hollhere@aol.com.
Deborah Brillard earned a B.A. in English and an M.A. in Speech Communication from the University of Northern Colorado.
"And what therefore is truth?
A mobile array of metaphors"
Nietzche
From its ancestry in ancient Athenian oratory to its emergence as a form of ocular argument in promoting nanoscientific funding, the rhetorical dimensions of metaphor have engaged the attention of critics across an array of persuasion studies. Invoked as a form of artistic proof, metaphor literally means a carrying across; it is the "interanimation" or "engagement of the will" [1] that results in agreement about or understanding of the subjects of discourse, the freight of meaning. So embedded is metaphor in the discursive formation that it is inseparable from the linguistic structure of persuasive stratagems. Metaphor is the means through which perceptions, impressions, ideologies, and even institutions are codified. Where there is meaning there is metaphor.
The ultimate arbiter of meaning in America is the Supreme Court. As the most enduring and respected institution endowed with authority to house the architectonics of advocacy, the Supreme Court acts as the nation's most potent collective voice. What may be less obvious and hence more intriguing is that arguments advanced to and opinions authored by the nine justices constitute a storehouse of metaphor. In fact, the documents of the Court may be viewed as matrices of metaphor inherent in the discourse heard within and resounding from Chambers. Although metaphor has been studied in a variety of ways, it has not been scrutinized through the lens of the Court. And though the Court has been examined from historical, logical, precedentual, and dramatistic perspectives, it has not been examined from a metaphorical framework.
The purpose of this study is to identify metaphors invoked by Supreme Court justices in their concurring and dissenting opinions in the matter of George W. Bush, Et. Al., Petitioners v. Albert Gore, Jr., Et. Al.[2] The authors' thesis is that rather than being a repository of legal discourse, presented in analytic form and denuded of suasory and sensory premises, this decision is fraught with tacit metaphors that not only color but constitute the very foundations for action and interpretation. Rather than a dispassionate embodiment of discourse, the Supreme Court's opinions reveal a hidden or stealth form of rhetoric, evidenced in the tacit metaphors of their written opinions. Hence, the positions of the justices who comprise the court regarding this historic saga are encoded in a discourse that appears to be referential in form, but actually is laden with metaphor, attitudinal valence, and, inevitably, opinion. From this perspective, "truth," or the judicially sanctioned codification of it, resides, therefore, in metaphor.
Rhetorical Functions of Metaphor
The study of metaphor spans an eclectic array of disciplines from political science to philosophy to psychotherapy.[3] Despite the variety of academic venues, from ancient Greece to anticipatory globalization, scholars agree on key functions that metaphors serve. First, metaphors have inventive functions, containing the linguistic equivalent of genetic codes for mapping materials in a dispositional stance. Lakoff and Johnson discuss the inventive and dispositional functions of categorical metaphors: "Human categories are typically conceptualized in more than one way, in terms of what are called prototypes. Each prototype is a neural structure that permits us to do some sort of inferential or imaginative task relative to a category."[4] Foss describes the prescriptive dimension of this task: "By organizing reality in particular ways, our selected metaphors also prescribe how to act. Metaphors contain implicit assumptions, points of view, and evaluations." [5]
Not only do metaphors have an invention function, they also have an orientation function. Black describes this orientation as a prism for screening data:
Suppose I look at the night sky through a piece of heavily smoked glass on which certain lines have been left clear. Then I shall see only the stars that can be made to lie on the lines previously prepared upon the screen, and the stars I do see will be organized by the screen's structure. We can think of metaphor as such a screen.[6]
Arguably, the Supreme Court's key rhetorical task is to engage in testing claims relative to inferential and imaginative oral arguments addressed to it. To do so, the Court must draw from the inventional and dispositional functions of language cited by Lakoff and Johnson. Significantly, the Court simultaneously must reinforce its legal identity without sacrificing neutrality.
Representing the highest judicial body deemed to render analytically neutral assessments of law affecting citizens, the Court is founded on premises of Cartesian rationality. The discursive formation of the Court assumes that it is a model of rationality versus a model of probability. Viewed as a syllogistic processor of the claims and counterclaims of various arguers, the Court has a set of rhetorical characteristics and constituents. Among these are data analysis, precedent, and parallel case structure. From a rhetorical perspective, Foss, Foss, and Trapp describe elements of such a reasoning process: "The most general formulation of the structure of an analogy is A is to B (the theme) as is C to D (the phoros). The theme and the phoros are from different spheres."[7] When advancing and assessing claims within the Court, strategic word choices must be made that communicate coherency of dispassionate lawmakers.
Acceptance of the Court's premises assumes an encompassing search for truth as verified by rational approach. Condit explicates the role communication scholars sometimes take in following ideals of the scientific paradigm:
Science as a chaste youth would persist in believing that existing procedures for producing "replicability," "verifiability," "falsifiability," and so forth allow this tripartite ideal to play the central role in contemporary communication research. Mainstream communication researchers following this ideal often talk as though they believe that they are producing real knowledge (i.e. certain, universal, and uncontaminated by judgment) about such communication phenomena as language immediacy, self-disclosure, intimate relationships, and organizational networks. At the least, they disparage other modes of scholarship for failing to produce such "real" knowledge. [8]
In such a quest for knowledge, however, metaphorical modes of reasoning might escape the attention of the citizenry. Indeed, even academicians who scrutinize the Court have largely done so within the framework of Cartesian rationality. Although Prosise and Smith criticized the Court for being rhetorically inadept, the crux of their argument was launched on logical grounds:
Had the court been more rhetorically adept, they would have started with the argument that federal elections are unique and that presidential elections are supremely important, and then would have proceeded to detail their particular findings in the case. The deductive approach based on the one-man-one-vote principle and past precedent could have produced the type of sea change that White discusses. Perhaps such a rhetorical strategy could have drawn more moderate justices along as well because it could have reinforced the goal of reducing a state's ability to compromise federal elections. [9]
Whereas the language of law used by the Court appears formal, fixed, and selectively objective, Schmidhauser advises, "One of the most significant trends in the study and teaching of American political institutions in recent years has been the increasing attention devoted to government as a dynamic process rather than as a formal legalistic structure. It should be remembered that ideals might scarcely aspire to fulfillment through mere camouflage of the political and ideological realities. The ultimate objective is not to debunk but to understand." [10]
For the purpose of understanding the dynamic linguistic structure of the Court and how tacit metaphor operates therein, the authors select Case #531: George W. Bush, Et Al., Petitioners v Albert Gore, Jr., Et Al, On Writ of Certiorari To The Florida Supreme Court, the most controversial and monitored case ever to be argued before the Court.[11] Not only is the case selected because of its high-stakes nature and unprecedented power in determining the nation's Commander-in-Chief, the issued opinions generated as much controversy as the process itself. Although the decision reached by the Court bestowed closure on a scrambled election scenario, it raised as many questions as it answered. As Leo observes in U.S. News and World Report,
The election that wouldn't end finally concluded with a memorable image: confused TV reporters standing in the dark, fumbling for meaning in a strange, six-opinion U.S. Supreme Court decision that nobody could quite figure out. Embarrassed for themselves, and perhaps for the court as well, the reporters couldn't even decide on the spot whether the justices were saying that the election was really over. The country needed clarity and a decision that couldn't be dismissed as narrow or partisan. What we got was a jumble of impenetrable prose, tortured thinking, and the usual 5-4 conservative-liberal split on the key issue. Even for Bush supporters, it was a dispiriting end to a sad campaign. [12]
Never before had the rhetorical onus of the Court been so magnified.
Method
Crucial to the examination of the legal discourse surrounding the Florida election is the formulation of the research question: What are the tacit or "stealth" metaphors used to describe the Supreme Court's decision and dissent in the case of George W. Bush, Et. Al., Petitioners v. Albert Gore, Jr., Et. Al? In other words, how do metaphors create images of objectivity that, in fact, mediate versions of the legal controversy surrounding the case? In particular, the researchers are focused on discovering the rhetorical devices through which these stealth metaphors function as vehicles of controversy and consensus. The analytic unit selected is the metaphor and the mode of criticism is metaphoric.
The researchers first examined the Supreme Court documents containing the controversy. Two texts were selected that offer representative discourse from both sides of the argument: the Per Curiam and Justice Ginsburg's dissent. The Per Curiam offers discursive constructions of the majority and hence houses the argument; Ginsburg's dissent was selected as the opposing discourse because of her contempt of the majority opinion, evidenced by two words, "I dissent." The omission of the adverb "respectfully" offers clear and undeniable evidence as to both legal position and emotional disdain.
The researchers proceeded inductively, locating metaphors in the two texts. Metaphors were identified according to tenor, defined as principle subject matter, within each line. A word or phrase was determined to be a tenor by using a criterion of linguistic substitution. When another neutrally-sounding word or phrase could replace the tenor without distorting the denotative meaning of the word, that word or phrase became a candidate for classification as a tacit metaphor. Once metaphors were isolated, they were sorted according to tenor and frame. A number of metaphors emerged from this analysis. Of these, three were determined to be prototypes based on frequency and intensity of use. Prototypes include: artificial precision, pristine/pollution, and animate pattern metaphors. Next the metaphors were analyzed to determine key rhetorical functions framed therein.
Data Analysis
The three categories of metaphor identified as prototypical in the texts selected for analysis include frames residing in artificial precision, pristine/pollution, and animate pattern categoria. In this section, the authors define each metaphorical domain and provide prototypes illustrating their respective use. In addition, the rhetorical functions of the domains are examined according to dramaturgical and teleological dimensions. As demonstrated by these respective functions, the metaphors serve to magnify and minimize key arguments, while assigning varying underlying justifications for their actions.
Artificial Precision Metaphors
Artificial or false precision metaphors endow language and processes with an enticing, but inauthentic, guise of accuracy. The faux precision metaphors linguistically link accuracy of measurement to units that by their very nature elude such calculus. As Robert Musil observed, "We do not have too much precision and too little soul, but too little precision in matters of the soul."[13] Artificial precision metaphors are located in the following excerpts from the Per Curiam and Ginsburg's dissent:
One example of an artificial precision metaphor is "sharp focus." By suggesting a degree of focus designated as "sharp," the Court implies that the degree is present and hence measurable. As Protagoras explained, existence implies measurement. However, the adjective "sharp" is open to varying interpretations as a modifier and codifier and hence lacks precision.
Another example of artificial precision metaphor is "vital limits." By drawing linguistic bounds around limits, the Court implies that limits have quantifiable boundaries. But what is meant by "vital" as a qualifier of limitations is open to debate. Two additional examples of artificial precision metaphors are "attach definitive weight" and "dilution of the weight." By invoking this language, the Court suggests discernable degrees of weight as determinants of the decision. While these degrees of weight sound like calculi of equations, what they refer to is vague; hence an artificial degree of precision is called into play.
The rhetorical function of artificial precision metaphors entices individuals to strive for degrees of accuracy that may be unattainable for the subject matter cited. By invoking a larger metaphor, in the guise of a mathematical issue not applicable to the topoi of decision-making, the Court suggests more precision than exists. Such metaphors concoct a framework of faux accuracy and ask individuals to operate as if they are dwelling in domains of certainty, rather than in dimensions of probability.
Pristine/Pollution Metaphors
Burke describes the rhetorical cycle of pollution and perfection, which can be linked to the pristine/pollution prototype: "Symbolicity, for all its imperfection, contains in itself a principle of perfection by which the symbol-using animals are always being driven to or rather, towards which they are always striving, as with a lost man trying to answer a call in a stormy night."[14] The dialectical tension between pristine and pollution metaphors is evidenced in the following examples from the Per Curiam and Ginsburg's dissent.
An example of a pristine/pollution metaphor evidenced in the Bush v. Gore decision is "not punched in a clear, complete way by the voter." This allusion to cleanliness suggests a dirty voting process. Related examples consist of "marks, holes, and scratches." The Court invokes a pristine standard when it refers to "Ideally, perfection would be the appropriate standard." This language suggests purity, a state free from taint or contamination. The quality of purity, however, is subjective.
Pristine/pollution metaphors provide an impetus for action: the individual is invited to use linguistic currency to exchange the polluted for the pristine. The action calls for the watchwords of protecting the clean from contamination. Pristine/pollution metaphors impute a linguistic link that connects impurity to its causal location. As Burke states,
In a non-Spinozistic kind of dialectic, in observing that the expression, "causa sui" can be stressed in two ways: either "causa sui," or causa sui." The first gives us the active interpretation: we act, or are free "insofar as we are the adequate cause of what takes place either within us or outside us." The stress upon sui gives us the passive interpretation, of the self as caused-and we are constrained insofar as we are affected by other causes. . . . That is, if we are but the partial cause of something, we are constrained or passive to the extent of this partiality.[15]
Animate Pattern Metaphors
Animate pattern metaphors address both the constraints and conditions of the artificial precision and pristine/pollution metaphors, offering a linguistic prescriptive to alleviate the ills attributed to each. Animate metaphors hence perform a diagnostic function. As Lakoff and Johnson indicate,
Causes are mostly conceptualized as forces, and each force must apply to something producing some effect as it is applied. The forms of causation depend on the kind of force it is, what the force is applied to, and the kinds of changes it produces. The result is different logics of causation as a whole. These different logics of causation are not a simple product of a single logic of cause or force, combined with a single logic of change.[16]
The dialectical tensions between cause and cure are exemplified in the following excerpts from the Per Curiam and Ginsburg's dissent. Perhaps the most infamous example of an animate pattern metaphor in the Bush v. Gore decision is the reference to the "hanging chad." This suggests an active, albeit errant, chad, both as performance and position. Not only did chads hang, they dangled, and exhibited signs of pregnancy.
Another example of an animate pattern metaphor is "successfully dislodge." It is as if a medical procedure could be enacted to disencumber the obstacle. Similar examples include "sought relief" and "remedial processes," which signify activity in relation to the entity invoked.
Animate pattern metaphors imperceptibly manufacture a discordant state within the audience and supply linguistic solutions to ameliorate these tensions. These metaphors locate the source, quality, and extent of the problem as an organic or human condition, resulting in concomitant solutions. Presumably, the action-oriented solutions will meet the needs indicated in the definition of the problem. Animate pattern metaphors situate individuals in a remedial state that proctors both the condition and cure for the audience. The world described is fraught with pollutants, which can be overcome with the proper antidotes. The Court's raison d' etre is to provide a template for adjudication.
Discussion
Our argument in this paper is that tacit metaphor activates and transforms legal depictions, acting as a conduit that provides rhetoric replete with dramaturgical
instructions for action and teleological testaments about the nature of such enterprise. The coding of the Supreme Court's opinion functions in a manner analogous to that described by Arthos in viewing Farrakhan's march: "Here metaphor simultaneously hides and signals a critical meaning."[17] Far from a legal franchise of arguments derived exclusively from referential language and the preeminence of precedent, the Supreme Court's decision in George W. Bush, Et Al., Petitioners v. Albert Gore, Jr., Et Al. provides a data base for uncovering stealth forms of suasion. The detection of rhetorical forms hidden in formulaic discourse imparts a rich resource of rhetorical inquiry.
A summary of results indicates that the Supreme Court's decision in Bush v. Gore contains multiple instances of metaphor. The decision is replete with tacit metaphors ranging from artificial precision to pristine/pollution, to animate pattern metaphoric constructions.
Although the extant literature indicates that the rhetorical functions of metaphor are to provide invention and orientation by invoking a striking and colorful comparison between entities, our research reveals a new dimension of metaphor. Unlike the use of persuasive metaphor in discourse, we propose that tacit metaphor functions according to its ontological quality and its pervasive nature. Rather than invoking a comparison between entities, tacit metaphor functions not as an equation or set theory of mathematics, but unto itself. Rather than inviting us to see A in terms of B, or purporting that A shares properties with B, the tacit metaphor subtly, yet firmly, declares that A is A. The difference might be understood in this comparison of persuasive metaphor with tacit metaphor: a writer using persuasive metaphor describes the television series, Law and Order, as "visual nicotine." The metaphor is novel, lively, and calls attention to itself. Upon encountering this metaphor the reader may experience pleasure/relief, attach credibility to the writer for his gift with words, and apply increased mental effort to the experience.
In contrast, a writer using tacit metaphor may refer to a branch of government or the root of a problem, and no one will necessarily notice that a metaphor has been used. Because the metaphor is undetected, it likely will be accepted without question or quarrel by the reader, yet dwell deep within the documents that shape American history. Foucault conjures images of a historical process wherein documents are transformed into monuments:
The document is not the fortunate tool of a history that is primarily and fundamentally memory. . . . In our time, history is that which transforms documents into monuments. In that area where, in the past, history deciphered the traces left by men, it now deploys a mass of elements that have to be grouped, made relevant, placed in relation to one another to form totalities, it might be said, to play on words a little, that in our time history aspires to the condition of archaeology, to the intrinsic description of the monument. [19]
Tacit metaphors tamped into the tapestry of the judiciary constitute a terrain inviting rhetorical excavation.
NOTES
1) I. A. Richards, Principles of Literary Criticism (New York: Harcourt, Brace, 1930), 268-269.
2)George W. Bush, Et. Al., Petitioners v. Albert Gore, Jr., Et. Al., On Writ of Certiorari To The Supreme Court 531 (2000).
3) The Communication and Mass Media Complete Database, for example, lists 149 academic articles published on metaphor.
4) George Lakoff and Mark Johnson, Philosophy in the Flesh (New York, NY: Basic Books, 1999), 19.
5)Sonja K. Foss, Rhetorical Criticism: Exploration & Practice (Long Grove, IL: Waveland Press, 2004), 301.
6) Max Black, Models and Metaphors: Studies in Language and Philosophy (Ithaca, New York: Cornell University Press), 41.
7) Sonja K. Foss, Karen A. Foss, and Robert Trapp, Contemporary Perspectives on Rhetoric (Prospect Heights, IL: Waveland Press, 2002), 102.
8)Celeste Michelle Condit, "The Birth of Understanding: Chaste Science and the Harlot of the Arts," Communication Monographs, 57 (1990): 324.
9)Theodore Prosise and Craig R. Smith, "The Supreme Court's Ruling in Bush v. Gore: A Rhetoric of Inconsistency," Rhetoric and Public Affairs, 4 (2001): 605-632.
10) J. R. Schmidhauser, The Supreme Court: Its Politics, Personalities, and Procedures (Austin, TX: Holt, Rinehart, and Winston, 1960), vii, 3-5.
11) George W. Bush, Et Al., Petitioners v Albert Gore, Jr., Et Al, On Writ of Certiorari To The Florida Supreme Court
12) J. Leo "Supreme Confusion," U.S. News and World Report, December 25, 2000, 14.
13) Robert Musil, Precision and Soul (Chicago: University of Chicago Press, 1990).
4)Kenneth Burke, A Grammar of Motives (Berkeley, CA: University of California Press, 1945; rpt. 1969).
15)Burke, 141.
16)Lakoff & Johnson, 206.
17)J. Arthos, "The Shaman-trickster's Art of Misdirection: The Rhetoric of Farrakhan and the Million Men," Quarterly Journal of Speech, 87 (2001): 55.
18)"'CSI,' 'Law & Order' Brands Strike While They Are Still Hot," Denver Post, April 21, 2004.
19)Michel Foucault, The Archaeology of Knowledge, Trans. A. M. Sheridan Smith (London: Tavostock, 1972), 7.
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