What The #@$% Is “Moral Turpitude?” (Or Why I Love Posner Opinions)

Lawyers love to use words that only lawyers and judges can understand.  They also love to use words that even they don’t understand.  Words like “moral turpitude.”  What exactly is a crime involving moral turpitude?

That was the issue in a recent Seventh Circuit decision in a case involving the deportation of woman who used a false social security number for employment purposes. Under federal law, an individual who is illegally present in the U.S., and who commits a crime of moral turpitude, is ineligible for a special status that would allow him or her to remain in the country.

Read the court’s decision if you are interested in the specifics of the case. But read Judge Richard Posner’s concurring opinion (starting on page 16 of the decision) if you are interested in his wholesale attack on the court’s efforts to give meaning to the words “moral turpitude.”

I do not however agree with the respect that Judge Hamilton’s opinion accords the concept of “moral turpitude.” It is preposterous that that stale, antiquated, and, worse, meaningless phrase should continue to be a part of American law. Its meaninglessness is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals.

After reciting a list of purported definitions for the troubling term, Posner continues:

The definitions constitute a list of antiquated synonyms for bad character, and why does the legal profession cling to antiquated synonyms? Why are we so backward‐looking? The answer lies in the American legal culture—in the fact that law is backward‐looking, that the legal profession revels in antiquity, cherishes jargon, and lacks respect for proper English usage—“base or vile” is not an expression used by sophisticated speakers of modern English, or for that matter unsophisticated, and the word “turpitude” has disappeared from the language as spoken and written today. The language I quoted from Black’s—who talks like that? Who needs to talk like that? Lawyers apparently, and they go a step further into the lexical mud by intoning an adjectival form of“turpitude”:“turpitudinous.”

Turpitudinous.  It just rolls off the tongue, doesn’t it?

For some years now I’ve been working on a parody to the tune of “Brush Up Your Shakespeare” (from “Kiss Me, Kate”).  The opening line was, “Brush up your Scalia. Start quoting him now. Brush up your Scalia and the judges you will wow.”  But now I’m thinking of singing about Posner instead.  What say you all good readers? Scalia or Posner?