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22 January 2004: "Some thoughts on language and constitutional law"

For the past five years or so, I've been a 'net junkie, and hanging out on discussion forums has been part of that. The internet is, unsurprisingly, and overwhelmingly Anglophone place, and one of the things which has been driven home to me in that time—and even more so since I emigrated to the United States—is that it can be a very tricky thing to enter into debate with people who have a different linguistic frame of reference than you do. Several of my formative years were spent in the UK, and as a result, I'm bilingual in Dutch and English (I even speak English with a Home Counties accent). Because of this, I frequently cross-reference between the two languages, especially where the definition and etymology of words are concerned (it doesn't help that I was taught French, German, Latin and ancient Greek in school). This is no more evident than when I get involved in discussions involving the "Establishment Clause" of the First Amendment of the Constitution of the United States of America.

And there have been plenty of flare-ups where this is concerned over the last couple of years. There's been the issue of having the phrase "under God" in the Pledge of Allegiance, a spin-off regarding the phrase "in God we trust" on the currency, and now there's this thing going on about same-sex marriages. In discussions, the Establishment Clause is invariably dragged out, as is the term "freedom of religion," and how it relates to atheism. The rhetorical manoeuvres hard-line Christians will engage in are astounding, and often contradictory. I've read assertions that atheism is not a religion and is therefore not protected by a right to "freedom of religion," and I've read arguments that atheism is simply a "godless religion" which is why it would be unconstitutional for the government to impose it on those who adhere to "other" religions. "A cornered cat will jump in odd ways," as the Dutch would put it, but I digress.

Language is bound up with culture, obviously, and nowhere is this more clear, to my mind, than in this sort of discussion. All I have to do is cast a look at Article 6 of the Dutch constitution (or to be more exact, the most recent version, which dates from 1989), which guarantees freedom of religion or levensovertuiging. In the link provided, levensovertuiging is translated as "belief"; a more literal translation would be "life persuasion." In this case, "persuasion" should be read in the sense (to wax Victorian) of "a gentleman of the musulman persuasion" (or "Jewish persuasion" or "Catholic persuasion" or whatever). An alternative term is levensbeschouwing, which translates as "one's view of life" or "one's vision on life."

The problem is that, while it's an unambiguous term in Dutch, any translation into English is open to various interpretations, and when legalities are debated, literalism rules. Imagine if the US Constitution guaranteed "freedom of 'belief'": in no time, there would be a case before the Supreme Court in which the defendant in a libel case would argue that, even if he couldn't produce any evidence substantiating the claims he printed about the plaintiff in his newspaper, he—the plaintiff—sincerely believes those claims to be true, and that therefore to find against him would be unconstitutional because it would violate his freedom of "belief." It's not "belief" in the intended sense, but under the trias politica, interpreting the law is the judiciary's job; if the legislature can't use unambiguous language, it's their problem if their intent is misunderstood.

Ditto for "persuasion."

You'll understand that approaching such a discussion in the English language from a cultural frame of reference in a different language is a very tricky proposition indeed. There's no moral to this tale, really, except that if you learn some other languages, you'll understand other people better. In more ways than one. And that there's something to be said for submitting one's constitution for review every so often. Yes, even a document as indisputably brilliant as the Constitution of the United States. (Look, if it had been perfect, the Bill of Rights would have been in there in the first place, instead of being incorporated via amendments!)

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