A good lawyer is highly skilled in creating doubt and confusion through the use of semantic deconstruction. By “deconstruction” I mean analyzing, dissecting and fragmenting the sentence grammatically to isolate individual words or phrases and to explore alternative definitions. The poster child example was demonstrated by Pres. Clinton: “It depends on what the meaning of is, is.”
Other specific, well known examples are from the judiciary itself, where in the Kelo decision the court redefined “public use,” as found in the 5th Amendment, to mean “public purpose”; and in the Citizens United decision equating a corporation to a real person with rights to contribute to election campaigns.
A good way to understand this tactic is the forest and trees analogy. The HOA attorneys ignore the description of the forest (the common meaning of the sentence statement) and attempt to redefine the individual trees that make up the forest (the words and phrases used in the sentence). By redefining the descriptions of the trees, the attorneys create doubt and an alternative interpretation in their favor. And by doing so, they have redefined the forest to mean something else other than what was obviously intended. The statement, as commonly accepted, now has several alternative meanings.
My favorite example is CAI’s insistence that HOAs are not governments but businesses. CAI makes use of the archaic Marsh v. Alabama public functions test that reduces the long held legal doctrine of a government (the sentence) to a test of a few factors (the trees). Does the HOA possess the functions of a government? Well, the question can be reversed to ask: Does a government possess the functions of a business? This approach gets us nowhere. The “trees” have become the focus, the substitute legal meaning, of deciding the definition of what a government is, and the traditional legal doctrine is summarily dismissed as irrelevant. It is a defect in our system of jurisprudence.
If you attempt to find the meaning of a vague concept in the dictionary by pursuing the words used to define it, say the word “government,” you quickly find yourself in a circular rut. Justice Potter encountered this difficulty in Jacobellis v. Ohio (1964) when he wrote that the Supreme Court “was faced with the task of trying to define what may be indefinable,” referring to the difficulty of defining the broad concept of what is pornography. He admits to not being able to intelligently define pornography, “But I know it when I see it.”
This sums up the reality of attempting to define concepts that are well understood in our society, but escape a unique and distinguishing definition. Only by specifying examples that distinguish between what is and what is not can a society clearly arrive at an acceptable definition.
These “word games,” as I call them, this one shot redefinition of long held concepts (the court seeks some means to decide an issue and picks one, almost arbitrarily), is very dangerous and undermines a stable society. It, along with “political correctness,” is Newspeak (from Orwell’s 1984) where a person can no longer make meaningful distinctions about reality, and where black can mean white.
Good lawyer play these word games very skillfully, and the judges follow along with redefinitions to suit the particular issue before them, rather than re-examining the whole concept that is in question. Opposing lawyers for homeowner rights advocates must not lose sight of the broader picture, the forest.