Updated at 4:10 p.m. EST on October 24, 2019
Two dramas are the focus of the nation at this moment: the constitutional crisis in Washington, and the World Series—less of a crisis, but still in Washington. These may seem totally unrelated, and yet, there is a striking symmetry between the worlds of American law and American baseball. Baseball is, of course, primarily a sport, but it is also something more than that: a wonderful example of a functioning legal system, one that teaches the millions of Americans who play or watch it fundamental principles of American law and constitutional theory.
Let’s begin with the sport’s legalistic nature: The entire game is regulated by a more elaborate set of rules than any other sport is. At the professional level, it requires a highly trained multi-judge panel of umpires to implement and interpret the rules. Every pitch that does not get hit requires a legal ruling: Was it a ball or a strike? Did the batter really swing? Those pitches that are hit must often be called fair or foul. As with the American legal system, each umpire has a jurisdiction. The home-plate umpire calls a hit ball fair or foul before it reaches a base; the first- and third-base umpires make the call after the ball is beyond their bag. In the World Series, extra umpires are on the field, creating a mini Supreme Court that provides new pairs of eyes to scrutinize plays in the outfield.
And, of course, baseball has its own constitution: the rule book, and players know that they have to follow the rules, even if they don’t like them. Consider the batting order. The rules are clear. The captain of the team (or the manager) gives the home-plate umpire a list of players in the order in which they will bat. Once set, the order cannot be changed without a formal process of taking one player out and putting another player in. This, too, is done in public with the sanction of the umpire, who could rule a new player ineligible if that player had already been in the game and was taken out. This process is analogous to presidential appointments. The president must nominate people for some positions, such as members of the Cabinet, but the nominee must then be submitted to the Senate for confirmation. Rules are rules. Baseball fans know this.
This reliance on the rules underscores the way baseball, like our legal and political systems, can work only if the rules are followed and everyone accepts both the rule book and the constitution, and the power of the officials to apply the rules.
Many of baseball’s rules evolved much like the common law. To paraphrase Oliver Wendell Holmes Jr., the rules of baseball are the result not so much of logic as of experience. For example, there’s the infield-fly rule—that if there are fewer than two outs, and runners are on first and second base or if the bases are loaded, a fly ball catchable with “ordinary effort” by infielders is an automatic out. This clearly developed like the common law, out of experience. It is, in effect, an anti-fraud device. Without this rule, an infielder could purposely drop a fly ball to create a double or triple play if there are two or three runners on base. But the rule declares the batter immediately out, thus eliminating any possibility of fraud. The rule is complicated, and it takes a while for some fans to understand it, but once they do understand it, the rule makes sense.
Baseball is the most legalistic sport in the world, and its actors—players and umpires—mirror the way citizens and judges interact in the real world of the law. By playing or watching baseball, Americans absorb an abiding respect for judges, courts, and the rule of law. Baseball fosters both an understanding of the rule of law and a respect for the legal system. Baseball fans who have never heard of common-law adjudications or constitutional jurisprudence nevertheless have an appreciation for both. Developed on playgrounds and sandlots, this appreciation is refined by watching or playing on a more formal level.
Two thought experiments further illustrate the similarities between the American legal system and baseball. The first captures how players and umpires mirror the way citizens and judges interact in the real world of the law: A batter stands with a potentially lethal weapon in his hand—a heavy wooden stick. The umpire views a pitch and calls, “Strike three.” The batter sits down. He may argue about the call, but he does not expect the argument to produce any immediate result. The batter knows the umpire will not change the call. He will lose.
If the batter started to swing and stopped, and the pitch is ruled a ball, the catcher can appeal the call to the first-base or third-base umpire. But if he loses there, he knows that the rule of law has prevailed, and the call must stand.*
The scenes I have just described dovetail with American notions of fair play and having one’s day in court. Baseball fans and young players can see in this that it is okay, in American culture, to assert your rights. In this way, Little Leaguers learn to be litigators and plaintiffs. They also learn that, though they will not always win their case, they at least have a right to make it. These events take place in full public view. There is no room for cheating.
By contrast, in golf, for example, it is easy to move a ball, nudge it with your foot, drop it over your shoulder with extra force, or even incorrectly write down your strokes on a scorecard, because in the ultimate act of self-dealing, players or their caddies keep score. If all you care about is beating those you are with and bragging about winning, there are many ways to help your cause. Except in tournaments, there are no umpires or referees. Unlike in golf, even in sandlot and pickup baseball games there are no “mulligans” and “do-overs,” and no one can move a ball when the other players are not looking. Baseball is, in fact, an exceedingly transparent sport, the perfect pastime for a nation whose citizens believe in the rule of law and transparency.
The second thought experiment captures the role of judicial interpretation in deciding what the law means. Consider three umpires discussing their profession and how they call balls and strikes. One says, “I call ’em as they are.” Another says, “I call ’em as I see ’em.” The third smiles, observing, “They ain’t nothin’ till I call ’em.”
Their approaches illustrate the nature of judicial interpretation and the way competing judicial philosophies can coexist within American law. And as in law, baseball’s rules‚ while carefully written down, are flexible and never wholly certain. Each judge, like each umpire, may have a slightly different approach to his or her craft. The very idea that a pitch may be a ball or a strike depending on the interpretation of the umpire, or that a statute might be constitutional or not depending on the view of the judge, may seem contrary to the concept of “the rule of law.” But in this country, the “rule of law” includes the rulings of judges who interpret and apply often cold language of statutes and codes to the realities of life. Baseball prepares Americans for this legal reality by producing players, fans, and citizens who accept the rule of law promulgated by umpires, who enforce a code of conduct and a book of rules.
In this way, the game trains Americans for a society that is rule-bound and law-oriented, but at the same time modified by the eye of the umpire. This is not dissimilar from how Americans accept the competing readings of the Constitution from judges as different as Chief Justices Earl Warren and Warren Earl Burger, or Associate Justices Ruth Bader Ginsburg and Clarence Thomas. Many of us who grew up playing and watching a game in which law matters, rules count, and legal interpretations are part of the game have learned to accept both the different views of judges and their decisions.
During the American Revolution, Thomas Paine helped galvanize the American people in their struggle against monarchy. He understood, as all the Founders did, that American freedom would be grounded on rules, judges, courts, and the Constitution. He hoped that after the Revolution, “a day” would be “solemnly set apart for proclaiming the Charter … by which the World may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is Law, so in free Countries the law ought to be king: and there ought to be no other.”
That is the theory of our Constitution. Baseball, with its own rules and judges, teaches it to millions.
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