by Douglas 0. Linder (c) 1987
[This essay, originally published in the UMKC Law Review,
was republished in
Baseball and the American Legal Mind (Garland Publishing, 1995)]
The Commissioner of Baseball was nearing the end of his long tenure, but there remained one major goal he wished to accomplish before leaving office. He wanted to make baseball a pitcher's game again. "If I see one more 13-10 game, I think I'll just ride my horse off into the sunset. It's really gotten out of hand, hasn't it? All this scoring, I mean? Isn't there something we can do about it?"
The Commissioner's assistant thought for a while. "Why yes, maybe there is something," he said finally.
"What's that?" asked the Commissioner. "I'll try anything."
"The problem," said the assistant, "is not so much corked bats of lively balls or indoor stadiums-it's the umpires. The umpires are interpreting rules to favor hitters."
"They are? Why would they do that?"
"It began in the 1960's, that period of licentiousness and misplaced rebellion. Umpires began lowering the strike zone, inch by inch. Some people say that the strike zone was lowered to fit pitches. As this theory has it, when pitchers began throwing more low pitches, mostly sinkers and sliders, and fewer high pitches, down went the strike zone. Personally, I think it more likely pitchers started throwing pitches lower because the high pitches weren't being called strikes anymore. Umpires shrunk the strike zone to please fans who wanted more scoring."
"How could umpires lower the strike zone? Doesn't there have to be a change in the rules for that to happen?"
"You'd think so, wouldn't you, sir? Actually what happened was that umpires began making the strike zone, not interpreting it. The strike zone was the same as it always had been. The rulebook says that the strike zone extends from the batter's armpits to the top of his knees, over the width of the plate. That's what the rulebook says, but no umpire in the last twenty years has called a pitch crossing the plate as high as the batter's armpits a strike. The strike zone has moved lower, even though the rulebook remains unchanged. The strike zone now runs roughly from the batter's waist to the bottom of his knees."
"You mean to tell me that our umpires are ignoring the clear language of the rulebook and the intentions of its framers?," asked an obviously incensed Commissioner.
"Exactly," answered his assistant. "The umpires have made up their own strike zone and the result is clear for all to see: our national pastime has been transformed into a run-scoring circus."
"Why, then, let's fire all the umpires!"
"We can't, sir. Their contract, you know."
"Yes, of course. Well, then, what can we do? Didn't you say you had an idea?"
"There's this umpire named Bork working down in Triple A ball. He used to be a professor of Physical Education at a prestigious Eastern University. Bork wrote some scathing attacks on umpires back in his academic days. He espoused what I call 'strict constructionist' principles: an umpire's job is merely to interpret the rules, not change them. I like that Bork, he's not afraid to call that third strike, even when it's rib-high."
"So he's doing a good job in the minors?"
"I think so. Of course the batters disagree. And so do many of the fans. Bork presides over a remarkable number of 1-0 games, some involving fastball pitchers who not long ago were throwing the ball around sandlots. You see, batters have forgotten how to hit high pitches. Batters like Ted Williams, who used to feast on fastballs above the waist, don't exist anymore. The lowered strike zone has produced a league full of pantywaist lowball hitters."
"So we bring this fellow Bork up to the majors. Can he put an end to this runaway scoring and coddling of hitters?"
"He may be able to do it. He's not just one umpire-he's a man of considerable intellectual force."
Moving Bork to the majors wasn't accomplished without a fight. A lot of people liked the game as it was. "This Bork fellow is going to set the game back thirty years," one person objected. Finally, however, Bork got the job. Thousands of people who knew little about baseball came to Bork's defense. "Better to have Bork calling major league games than, say, sitting on the Supreme Court where he could have done some real damage," they argued. "Besides, since he'll be wearing a protective mask, no one has to look at his beard."
Bork eventually took his place behind the plate in his first major league game. When a fastball whizzed over the plate, rib-high, Bork yelled, "Stiii-riiike One!"
"Strike?" the batter asked, incredulous. "You've gotta be kidding! That ball was a foot above my waist."
"Check the rulebook, Buddy. The strike zone goes up to your armpits."
"Armpits? Armpits! No one calls pitches at the armpits strikes."
"Someone does now."
In the locker room after the game, Bork was asked about his "new" strike zone. "It's not my strike zone and it's not new," he said. "It's the rulebook's and it's been around for decades. As long as the book says the strike zone extends to the armpits, that's the way I'll call it. If baseball wants the strike zone lowered, they can change the rule. But until they do, I'll apply the rule as it was written, and as it was interpreted until umpires in the 1960's began thinking that their own notion of what a strike zone should be was better than the books."
If Bork was the only umpire in the major leagues calling high strikes, perhaps the game wouldn't have changed much. After all, pitchers had been trained to throw low pitches, and they probably wouldn't change their pitching styles just for one umpire. But Bork's argument had its effect. A number of other umpires began to question whether it was legitimate for them to ignore the language of the rulebook and the clear intentions of the rulebook's framers. Too many pitchers were getting the rib-high strike. Pitchers began adding high pitches to their sinker-slider games. Batting averages dropped. Run production plummeted. Fans began to complain. "Baseball is getting boring," they said. "Who wants to watch a bunch of batters swatting air?" Support began to grow for a rule which would lower the strike zone.
When the old Commissioner of Baseball retired he was replaced by a Commissioner anxious to satisfy the growing number of fans demanding that baseball become "exciting again." The new Commissioner appointed a rule revision committee. Many meetings later a rule change was proposed: the strike zone should extend from the waist to the knees. It did not go unnoticed that the new strike zone was precisely where the old strike zone had been in fact, if not in law, before umpire Bork began applying his strict constructionist principles.
Once the new rule was adopted, the game began to change back into what it was before the day Bork arrived behind the plate. Baseball again became a game of sinker-slider pitchers, lowbar hitters, and moderate-to-high run production. Fans were happy again. Only the pitchers, and a few oldtimers who still remembered Ted Williams, grumbled.
Umpire Bork is still calling balls and strikes. Pitches above the waist no longer get his right hand now: he applies the new rule as it is written. Privately, he complains that the game is weighed too heavily in favor of the hitters.
Old men on porches still talk about the early days of Bork's umpiring career. "Those were interesting times-all that debate about where the strike zone should be. Some umpires following Bork's strict constructionist views, and others sticking to the zone that had evolved during the sixties. No one knew where the strike zone would be on any given night-whether to expect a 10-9 game or a 2-0 game."
Umpire Bork believes baseball is better now for having a strike zone that matches the rulebook's. A lot of other people wonder what difference it all makes. "Everybody knew where the strike zone was before he came along, so who cares what the rulebook said?" they argue. It matters to Umpire Bork, who says that without a guiding principle of fidelity to the rulebook, an umpire might begin calling eyeball-high pitches, or pitches rolled across the plate on the ground, or even pitches thrown behind the batter, strikes.
Other baseball philosophers scoff at Bork's suggestion. "Umpires understand the value of consistency," they say. "This business about umpires calling eyeball-high pitches strikes is baloney. Just because an umpire isn't a strict constructionist doesn't mean that he'll call a strike whenever the urge hits him. Umpires are constrained by peer pressure, by fear of ridicule, and by their own love for the integrity of the game. When the strike zone was lowered in the sixties, it wasn't lowered because the umpires said, 'Hey, just for kicks, let's lower the strike zone!' It was lowered in response to various demands of the game and, primarily, the demands of the fans. Baseball was better for the change, which took place more gradually and with less disruption than it ever could have had we depended upon rules committees to revise the strike zone downward an inch or two a year."
Some debates never end. Perhaps the debate over strict constructionism and the strike zone is one of those. The wisest observation on the whole subject may have been made by a crusty old manager. When asked who was right-the umpires of the 1960's that took it upon themselves to lower the strike zone, or the umpires of the 1980's that raised it again, the manager said "they both were." He explained, "the strike zone got lowered when it needed to be, then umpires like Bork came along to make the rule match the strike zone--like it should.
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