A Word, Please: Case turns on meaning of a participial phrase
In February, the Supreme Court heard a case that hinged on the grammar of a single phrase in a federal law.
The law calls for a 10-year minimum sentence for anyone possessing child pornography if he has prior convictions for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
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The plaintiff in Lockhart vs. United States did, in fact, have a prior conviction for aggravated sexual abuse. But that conviction didn’t involve a minor or ward.
So did the minimum sentence apply in his case? In other words, did the modifying phrase “involving a minor or ward” apply to all three things that came before it, or just the last one?
The justices took up sides brandishing the same weapon: grammar. Writing for the majority, Justice Sonia Sotomayor based her argument on the “rule of the last antecedent,” which says that a modifying phrase applies only to the thing that came right before it. Writing the dissent, Justice Elena Kagan pulled out the “series-qualifier principle,” which suggests that a modifying phrase affects all the items in the series.
Fancy grammar terms, right? Intimidating even, huh? There’s just one problem: Neither is a grammar rule. They’re legal terms — encapsulations of previous attempts to clarify ambiguous laws.
Real grammar is impartial in this particular case (we’ll get to that in a minute). But that didn’t stop the justices from using it to build their respective arguments and examples.
Sotomayor: “It would be as if a friend asked you to get her tart lemons, sour lemons, or sour fruit from Mexico. If you brought back lemons from California, but your friend insisted that she was using customary speech and obviously asked for Mexican fruit only, you would be forgiven for disagreeing on both counts.”
Kagan: “Suppose a real estate agent promised to find a client ‘a house, condo, or apartment in New York.’ Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?”
Note to self: Never use weird fruit in a grammar example. But, that aside, what, exactly, does the grammar tell us? To find the answer, you need to know about modifying phrases. These include prepositional phrases like “in New York” and “from California” and participial phrases, which include “involving a minor.”
Often, modifying phrases work as adjectives. In “I saw a man with a mustache,” the prepositional phrase “with a mustache” describes the noun “man.” In “I saw a man wearing a hat,” the participial phrase “wearing a hat” modifies the noun.
This is what adjectives do: They modify nouns. Modifying phrases can also work like adverbs, modifying verbs like “jog” in “I jog with my headphones” or “I jog wearing headphones.”
The issue that concerned the justices was a participial phrase, “involving a minor or ward,” yet the examples they pulled out relied on prepositional phrases (“in New York” and “from California”). So I’ll do the same.
“I like pizza, sushi and ice cream with chocolate sauce.”
“I like pizza, pasta and even salad with Parmesan cheese.”
Kagan’s “series-qualifier principle,” which says that the modifier applies to all three nouns, tells you that I like sushi with chocolate sauce. Sotomayor’s “rule of the last antecedent” means you’re powerless to know whether I like Parmesan cheese on my spaghetti.
Both are ridiculous because grammar doesn’t work that way. Sure, sometimes syntax can divine the precise meaning of a statement. But other times it can’t.
In the rare cases when it’s truly unclear whether a person would be equally happy with an apartment in New York or a condo located anywhere in the world, the so-called “last-antecedent rule” is safer. After all, the last noun in the list is the only one that’s actually touching the modifying phrase.
But in most cases like this, you can’t rely on grammar. You must rely on common sense.
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JUNE CASAGRANDE is the author of “The Best Punctuation Book, Period.” She can be reached at JuneTCN@aol.com.