Arguably, an insufficiently celebrated trick of slippery rhetoric, political and otherwise, is to argue against an assertion someone has not made. In the study of rhetoric, this trick is sometimes called “the straw man” argument, but the more practiced employers of the trick are usually more subtle in that they often don’t go so far as to create a whole false argument to refute (an easily dispatched, lightweight manikin); rather, they tend to reach a conclusion the “opponent” has not reached and then refute it. Here is an example (I think) I gleaned from the American Constitution Society’s blog (October 9, 2009):
“I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew,” observed ACLU lawyer Peter J. Eliasberg during oral argument in Salazar v. Buono this week. The case presents the issue of whether a cross erected by the Veterans of Foreign Wars (VFW) to honor war dead on federal land is permissible under the Establishment Clause of the First Amendment.
Eliasberg was fielding pointed questions from Justice Antonin Scalia on whether a cross commemorating fallen soldiers is a Christian symbol. When Eliasberg argued that the cross is generally a Christian symbol, and therefore it honors only the Christian fallen, Scalia replied, “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion.”
Please note that Eliasberg apparently hadn’t concluded that a Christian symbol honors only “the Christian fallen”–“fallen” being, by the way, a loaded term in Christianity. As the ACS blog notes, Eliasberg’s observation about there being no crosses on Jewish tombstones was but one element of an inductive argument leading to the proposition that if a cross that is obviously shaped to suggest the Christian symbol is erected prominently in a graveyard, most people are then likely to regard the entire graveyard as Christian. Of course, if the graveyard is owned and operated by a Christian church–there are Catholic cemeteries, e.g.–then that expectation is appropriate. But the graveyard in question is not affiliated with a Christian church, so the erection of a cross, arguably, would probably change the way people interpreted the public area, and change it so as to blur the lines between one established religion and the State, as represented by federal land. At least that’s my amateur’s interpretation.
But Scalia apparently didn’t contest that implied assertion. Instead, being the helpful sort, he reached a conclusion Eliasberg hadn’t asserted and then found that conclusion outrageous. Scalia outraged himself. He “Scalia-ed” Eliasberg.