LOOKING IT UP: The Supreme Court's Use of Dictionaries in Statutory and Constitutional Interpretations |
LOOKING IT UP:The Supreme Court's Use of Dictionaries in Statutory and Constitutional InterpretationBy Kevin Werbach (c) 1994. All Rights Reserved. A shorter version of this paper was published as a student Note in the April, 1994 issue of the Harvard Law Review. (c) 1994 Harvard Law Review Association. Almost fifty years ago, Judge Learned Hand declared that "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary . . . ."[1] Despite this admonition, courts have long used dictionaries to aid their interpretive endeavors. Dictionaries are, after all, reference books that help readers comprehend the meanings and boundaries of words, which is precisely the function judges must often perform. The Supreme Court[2] has referred to dictionaries in more than 600 cases over a period of two centuries.[3] In recent years, however, the Court has come to rely on dictionaries to an unprecedented degree. Despite the current resurgence of interest in statutory interpretation among legal scholars,[4] and the increasingly vocal debate[5] about judicial methodologies, the use of dictionaries as interpretive tools has received little scrutiny.[6] This Paper argues that the Supreme Court should exercise greater sensitivity in its use of dictionaries. Part I demonstrates the increased prominence of dictionaries in Supreme Court opinions during the last several years. This shift is too substantial to ignore or dismiss as a coincidence; some underlying factors must explain the trend. Part II therefore situates the Court's use of dictionaries within a broader context of changed attitudes toward statutory interpretation and the role of judges. Dictionaries are not ideal tools; they provide a range of definitions that bear an imperfect relationship to context and meaning. The choice of the dictionary as an interpretive tool requires substantive decisions by judges, and introduces the antecedent assumptions of dictionary editors into the legal process. Part III suggests that these and other considerations gravely limit the value of dictionaries to statutory and constitutional interpretation, and that the Court's current unselfconscious attitude towards the reference books greatly exacerbates these problems. The paper concludes in Part IV with suggestions for more rigorous and more appropriate use of dictionaries.
I. The Court's Increasing Reliance on DictionariesDictionaries have been in existence since well before the American Revolution, and have appeared consistently in Supreme Court opinions since the early days of the Republic. The first English dictionary was published in 1552, and Samuel Johnson's celebrated Dictionary of the English Language was first released in 1755.[7] The Supreme Court first referred to one of the reference books in 1785, when it acknowledged an attorney's citation to Johnson's dictionary.[8] Although American lexicography was in its infancy, the Court cited dictionaries a total of twenty-three times prior to the Civil War.[9] Evidently realizing the important role that dictionaries could play in legal interpretation, Noah Webster sought to have his American Dictionary endorsed by the Supreme Court in 1831, but Chief Justice John Marshall rejected the offer.[10]From the mid-nineteenth century through the 1970s, the Court referred to dictionaries in virtually every Term, but rarely more than a handful of times per year.[11] In the quarter century between 1958 and 1983, for example, the Court cited dictionaries 125 times -- an average of five times per Term.[12] Prior to 1980, in fact, the word "dictionary" never appeared more than fifteen times in a single volume of the Supreme Court Reporter.[13] In recent years, however, the Court's use of dictionaries has increased dramatically. In the six Terms between 1987 and 1992, the Court never cited dictionaries less than fifteen times, with a high point of thirty-two references during the 1992 Term.[14] Dictionary definitions appeared in twenty-eight percent of the 107 Supreme Court cases decided by published opinion in the 1992 Term - a fourteenfold increase over 1981.[15] The trend towards increased dictionary use has been pervasive: the Court has referred to twenty-seven different dictionaries since 1988[16] in a range of cases involving not only statutes, but also constitutional provisions and administrative codes.[17] Although Justice Scalia has been most willing to employ dictionaries,[18] all nine of the Justices on the Court during the 1992 Term have prominently cited dictionaries in recent majority opinions.[19] The manner in which dictionaries are used has also undergone a shift in recent years. Traditionally, the members of the Court justified the use of dictionaries as a means of refreshing their memory about the meaning of words.[20] If the Court referred to a dictionary, it was often only to provide potential meanings from which the Court would select based on statutory purpose, legislative intent, common sense, or some other contextual arguments.[21] Theorists of statutory interpretation advocated a similar approach: Henry Hart and Albert Sacks, in their seminal 1950s Legal Process materials, explained the use of dictionaries as a "nice" way to identify permissible meanings.[22] By contrast, the Court in recent cases has frequently employed dictionaries as the focal point of the interpretive inquiry, and relegated arguments about policy, history, or structure to a secondary role.[23] Twenty-seven of the thirty-two dictionary references in the 1992 Term were located in majority opinions.[24] In several of those cases, dictionary definitions were the primary determinant of the ultimate outcome.[25]
II. Examining and Explaining the Trend
A. The Rise of Plain Meaning InterpretationThe Court's growing faith in dictionaries is tied to a broader methodological shift toward textualism in statutory interpretation.[26] The dramatic, sustained increase in citations to dictionaries cannot be coincidental, and considerations such as the relative insecurity of some Justices[27] or the greater prevalence of statutory cases before the Court[28] are insufficient to explain the trend. A search for a unitary causative factor to explain the Court's increasing use of dictionaries would be both misguided and futile. The trend is undoubtedly the result of many elements. This realization should not, however, preclude an investigation of certain important factors and their significance. This paper focuses on a connection between the use of dictionaries and broader interpretive methodologies for three primary reasons. First, to the extent that the Court justifies its use of dictionaries, it does so through arguments about modes of interpretation. Second, there exists a broad literature on statutory interpretation, which provides a useful framework in which to situate an analysis of the role and significance of dictionaries. Third, dictionaries provide a unique opening for an internal critique of certain aspects of the Court's interpretive practice.Over the past decade, the Supreme Court has embraced interpretive theories that give greater emphasis to statutory text and less significance to legislative history and other secondary aids.[29] As the composition of the Court changed during the Reagan-Bush years, Justices who trumpeted the importance of constraining judicial activism through formalist interpretive methodologies replaced those who were willing to read statutes expansively to effectuate public policy goals. Plain or ordinary[30] meaning interpretation -- among the most significant manifestations of this "new textualism"[31] -- seeks to identify the import that statutory language would have to a typical lay reader.[32] Proponents of this method argue that secondary sources should only be consulted when the ordinary meaning of a statute cannot be determined or would compel an unreasonable result in a particular case.[33] Advocates of plain meaning, led by Justice Antonin Scalia,[34] ground their methodology in notions of judicial restraint and democratic accountability. In his oft-cited dissent in the 1991 case of Chisom v. Roemer,[35] Justice Scalia forcefully argued for a plain meaning approach, which he deemed the Court's "regular method for interpreting the meaning of language in a statute,"[36] as a bulwark against judicial usurpation of legislative powers. He chastised the majority for its reliance on legislative history:
When we adopt a method that psychoanalyzes Congress rather than reads its laws, when we employ a tinkerer's toolbox, we do great harm. Not only do we reach the wrong result with respect to the statute at hand, but we poison the well of future legislation, depriving legislators of the assurance that ordinary terms, used in an ordinary context, will be given a predictable meaning. Our highest responsibility in the field of statutory construction is to read the laws in a consistent way, giving Congress a sure means by which it may work the people's will.[37] This passage encapsulates the emphasis that Justice Scalia and other "new textualists" place on limiting the creative interpretive role of judges. Advocates on plain meaning argue that essentially standardless inquiries into legislative history permit unelected federal judges to choose evidentiary fragments that suit them. This subjective process, they claim, replaces democratic compromises embodied in the text of statutes with ad hoc judicial constructs.[38] In recent years, the Court has emphasized plain meaning in most of its cases involving statutory interpretation. A statistical analysis of Supreme Court decisions published in 1990 found a significant but relatively minor shift in the Court's approach.[39] Since then, as new textualist approaches have gained in both sophistication and support, plain meaning and similar approaches have increasingly become the "regular method" of interpretation proclaimed by Justice Scalia in Chisom.[40] Even members of the Court with vastly different outlooks from that of Justice Scalia now employ the plain meaning approach.[41] Plain meaning interpretation and textualism have been attacked on many levels. Some commentators have rejected the textualist approach as an impossible mechanistic ideal, or as a fiction which can only mask the need for more dynamic, pragmatic methodologies.[42] Others have claimed that the ostensible neutrality of plain meaning interpretation belies a particular set of controversial value choices.[43] Defenders of textualism have responded to these and other attacks with new arguments affirming the integrity of their views.[44] It is not the purpose of this paper to join this lively debate. Even if all the premises of plain meaning are accepted, the Court's reliance on dictionaries raises important issues. By assuming an inherent relationship between textualism and the use of dictionaries, scholars and judges have failed to examine the particular significance of dictionaries as tools of judicial interpretation. Moreover, even when dictionaries may be an appropriate tool for the Court to employ, the Court's selection of particular dictionaries and definitions is subject to question.
B. Plain Meaning and DictionariesAdherents of the plain meaning approach have long assumed that dictionaries are the best source of the common understanding of words.[45] The identification has become so pervasive that many commentators use the terms almost interchangeably.[46] In fact, it is difficult to find a source that explicitly justifies the use of dictionaries to determine plain meaning. The connection seems obvious -- after all, where else would an average lay reader go to determine the meaning of a statutory term but the dictionary? Furthermore, dictionaries have the virtue of appearing neutral, thus gaining greater legitimacy for interpreters concerned about judicial subjectivity.[47]Recent Supreme Court opinions, such as Justice Scalia's Chisom dissent, frequently accept as uncontroversial the underlying proposition that dictionaries reflect the ordinary meaning of terms precisely. After attacking the majority for theorizing about congressional motivations for using the term "representatives" in the Voting Rights Act,[48] Justice Scalia brusquely announced that "[t]here is little doubt that the ordinary meaning of `representatives' does not include judges."[49] His primary support for this assertion was a citation -- without an actual quotation -- to Webster's Second New International Dictionary.[50] Justice Scalia apparently did not feel compelled to justify his reliance on a forty-year-old dictionary, which was first published more than three decades before the passage of the Voting Rights Act -- to ascertain the ordinary meaning of the term.[51] The identification of dictionaries with plain meaning, it seems, was self-evident.[52] Two cases from last Term demonstrate the various ways the Court is willing to give dictionaries, as sources of ordinary meaning, priority over other interpretive aids. In Smith v. United States,[53] the Court considered whether a defendant who offered to barter a gun for drugs had "used" the gun in the course of the drug purchase under a statutory penalty-enhancement provision.[54] Justice O'Connor, writing for the majority, based her construction of "use" on definitions from two dictionaries.[55] She concluded that the term did include the petitioner's conduct, because in ordinary parlance "use" means "to convert to one's service" or "to employ." Although she conceded that "[l]anguage, of course, cannot be interpreted apart from context,"[56] Justice O'Connor rejected the dissent's arguments that the statute should be read in context to require the use of the gun as a firearm. She explained that even though both interpretations were acceptable, they were not exclusive[57] and did not indicate the way the term was "most reasonably read."[58] Justice O'Connor apparently concluded that her reading of the statute was the most "reasonable" ordinary meaning because it fit the definition in her chosen dictionaries. Justice O'Connor's emphasis on the possible rather than necessary meanings of statutory terms does reflect the structure of most dictionaries. At bottom, however, dictionaries provide alternative definitions so that the reader can choose among them based on contextual analysis.[59] By asserting that her definition met the criteria of "ordinary meaning" simply because it was among the entries in two dictionaries, Justice O'Connor appears to have ignored this essential step of the analysis. This point was made cogently by none other than Justice Scalia, who despite his usual predisposition towards reliance on dictionaries, dissented in Smith.[60] Claiming that "[t]he Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used,"[61] Justice Scalia criticized the majority for selecting one possible meaning instead of identifying the way the statutory term would most likely be understood in context.[62] The colloquy between the majority and the dissent in Smith explodes the myth that dictionary definitions are necessarily aligned with statutory plain meaning. Nonetheless, a majority of the Court chose to accept Justice O'Connor's dictionary-based analysis over Justice Scalia's commonsense reasoning. A corollary of ordinary meaning is the recognition that, in certain situations, statutory terms are too vague to have any definite meaning to ordinary readers. All words are subject to multiple interpretations,[63] but grammar and textual context usually provide sufficient clues to identify the meaning most readers are likely to assign to a term. In some cases, however, words are so ambiguous that a reviewing court, looking only at the text, cannot say with certainty which of those interpretations should apply. In such cases, even strict textualists must resort to other kinds of arguments to clarify statutory meaning.[64] Nixon v. United States,[65] also decided last Term, demonstrates the role that dictionaries can play in proving that a word has no determinate plain meaning.[66] Nixon held that the appropriateness of Senate impeachment trial procedures constituted a nonjusticiable political question.[67] Although the full Senate voted on Judge Nixon's impeachment, a committee was responsible for evidence-gathering and examination of witnesses. Nixon argued that the constitutional mandate that "[T]he Senate shall have the sole Power to try all Impeachments"[68] required all testimony to be taken before the entire Senate.[69] Chief Justice Rehnquist's majority opinion turned almost entirely on definitions of the constitutional terms "try" and "sole."[70] In his analysis of "try," the Chief Justice claimed that, because two eighteenth-century dictionaries and Webster's Third New International Dictionary provide a "variety of definitions,"[71] the Framers of the Constitution could not have intended the term as a limitation on permissible impeachment procedures.[72] In contrast to Smith, in which the Court argued that a seemingly ambiguous term was subject to determinate interpretation,[73] the Nixon Court sought to illustrate the inherent vagueness of a word. Yet in each of these cases, dictionaries were the primary interpretive tools of the majority.
III. Questioning the Court's ApproachThe Court's faith in dictionaries is problematic both from the perspective of statutory interpretation and from the viewpoint of linguistics. In the abstract, the association of dictionaries with ordinary meaning makes sense -- the goal of modern dictionaries is to present as accurately as possible the accepted current usages of words.[74] Yet a number of factors vitiate the relationship of dictionary definitions and ordinary meaning, and the Court has rarely paused to consider the wisdom or the implications of relying on dictionaries in statutory interpretation. Of the opinions that do make explicit arguments about the practice, most are dissents which criticize the majority for its excessive reliance on dictionaries.[75] Even when, as in Smith,[76] the Justices acknowledge the limitations of their interpretive method, the assumption that dictionaries reveal "ordinary meaning" is usually left unquestioned. For some members of the Court, the dictionary has become a sort of default source, presumptively decisive unless there is specific evidence to the contrary.[77] Yet dictionaries are neither as neutral nor as reductive as the Court supposes them to be, and they do not provide the sort of meaning the Court seeks to determine.As noted previously, the Court in recent years has used dictionaries primarily as a vehicle for textualist interpretive methodologies. Thus, it makes sense to assess the degree to which dictionaries actually reflect the ordinary meaning of statutory terms. If dictionaries do not in fact enhance judicial neutrality and fidelity to legislative commands, the Court's rationale for employing them fails on its own terms. However, a critique of dictionaries as interpretive sources need not depend on the assumption that the Court always uses dictionaries to ascertain plain meaning or to minimize judicial activism. Rather, new textualist arguments provide a lens through which to view the use of dictionaries and the interpretive process. This Part therefore examines the extent to which dictionaries serve the purposes the Court has articulated, and then articulates other implications of the use of dictionaries in legal analysis.
A. Imperfect Sources of Ordinary MeaningContrary to the assumptions of the Court and many scholars,[78] dictionaries are not necessarily accurate repositories of the ordinary meaning of statutory terms.[79] Most obviously, dictionaries are secondary sources, exogenous to the statutory text. This fact alone, however, should not disqualify them from use: only the most extreme textualist would suggest that all secondary interpretive aids should be excluded. Rather, textualists generally confine their attacks to legislative history, which they believe to be particularly subject to multiple interpretations and judicial manipulation.[80]A greater problem with dictionary meanings is their fundamental indeterminacy. The language of many judicial opinions to the contrary,[81] it makes no sense to declare a unitary meaning that "the dictionary" assigns to a term.[82] There are a wide variety of dictionaries from which to chose, and all of them usually provide several entries for each word. The selection of a particular dictionary and a particular definition is not obvious, and must be defended on some other grounds of suitability. This fact is particularly troubling for those who seek to use dictionaries to determine ordinary meaning.[83] If multiple definitions are available, which best fits the way an ordinary person would interpret the term? Merely to claim, as Justice O'Connor did in Smith, that a definition provides a possible meaning that a typical reader might assign to the statute does not indicate why the Court should read the statute that way by the Court.[84] Individual judges must make subjective decisions about which dictionary and which definition to use.[85] The same arguments about manipulability and arbitrariness that are used to attack the examination of legislative history in statutory interpretation can therefore be applied to dictionaries.[86] The fiction that the particular definitions cited by the Court accurately capture statutory meaning is almost as tenuous as the assumption that scraps of legislative history reveal the intent of legislatures.[87] Subjectivity may be an ineradicable component of the interpretive process;[88] the point is that the use of dictionaries cannot eliminate this element, and may even exacerbate it. An opinion based on a dictionary definition must justify not only its chosen meaning for statutory terms, but the choice of a particular dictionary definition to reach that conclusion. More importantly, dictionaries can mask fundamental arbitrariness with the appearance of rationality, making the inherent subjectivity of judicial decisions even more difficult to confront. The Court's haphazard selection of dictionaries confirms the arbitrariness of its recent practice. A consistent textualist would presumably focus on the way current readers might view a statute, because any characterization of the way readers in an earlier era -- such as the drafters of a statute -- would have construed the provisions involves subjective re-creation by the interpreting judge.[89] Such an approach should favor interpretive tools that reflect the way those now subject to statutes could be expected to understand them. On the other hand, an interpreter more oriented towards effectuating statutory purpose or legislative intent would ideally look to interpretive tools contemporaneous with the drafting of the statute under consideration. Regardless of which approach a jurist takes, the date and nature of interpretive sources should bear some general relationship to the model. The meanings of words change over time,[90] and major dictionaries are updated at sufficiently infrequent intervals to allow significant linguistic development between editions.[91] If an interpreter has a choice of resources it would make sense to choose those that best match the desired period and readership. The Supreme Court has failed to use dictionaries in such a principled manner.[92] In recent Terms, the Court has cited everything from small volumes designed for quick reference such as Webster's Collegiate Dictionary and The Random House Dictionary to unabridged tomes such as Webster's Third New International Dictionary and The Oxford English Dictionary, not to mention specialized works such as Black's Law Dictionary. Yet there has been no apparent pattern to (or discussion of) the Justices' choices of volume or vintage.[93] Justice Scalia, for example, has referred to the 1950 edition of Webster's Second in four cases during the past three years,[94] to other editions of Webster's Second in two cases,[95] and to Webster's Third in two cases,[96] with no evident relationship between the age of the dictionary and that of the statute under consideration.[97] Dictionaries from various time periods may give similar or even identical definitions for a term, but if that is the case the Court should say so. If the Court is serious about its quest for ordinary meaning, it should not continue to employ dictionaries in such a disorganized fashion.[98]
B. Dictionaries and ConservatismThe Court's inconsistency, and its failure to justify its application of dictionary definitions to particular cases, call into question the extent to which the Justices actually employ dictionaries as vehicles for ascertaining ordinary meaning. As this paper has demonstrated, judges can use dictionaries subjectively either to concretize or to blur statutory and constitutional terms, without abandoning the veneer of textual objectivity.[99] A judge who wished to advance certain policy preferences could therefore employ dictionary definitions to generate "ordinary" meanings that exhibit a systematic ideological bias. Because the recent rise in dictionary citations has occurred at the same time as the Court's much-publicized turn to the right, the question arises whether there is any inherent linkage between the use of dictionaries and ideological conservatism.Empirical evidence suggests a connection between the Court's fondness for dictionaries and a conservative jurisprudence. Many of the most prolific dictionary citers are judges on the right of the political spectrum,[100] with Justice Scalia serving as both the most forceful advocate of conservative views and the Justice most likely to refer to dictionaries over the past five Terms.[101] The dramatic upturn in dictionary references began around 1985, the year of Justice Scalia's appointment and Justice Rehnquist's elevation to the position of Chief Justice.[102] Moreover, an examination of the broader historical record reveals that the one time prior to the past decade that the Supreme Court sharply increased its references to dictionaries was the period around 1905,[103] the year the Court decided Lochner v. New York.[104] Other commentators have suggested technical and substantive parallels between the Lochner Court's efforts to restrict government regulation of private transactions and the current Court's revanchist conservatism.[105] Although the data set may be too small to allow for firm conclusions, it is intriguing that the only two instances of substantially increased dictionary citation have coincided with periods of conservative control over the Court. Such correlations do not prove causation. There are, however, deeper reasons to suspect an conservative bias to the Court's use of dictionaries. At a broader level, others have suggested a connection between the new textualism and conservatism.[106] Decisions that emphasize judicial neutrality and doctrinal continuity tend to privilege existing social structures and wealth distribution.[107] Moreover, when a statute is intended to serve a broad remedial function, an exclusive focus on the plain meaning of terms is likely to vitiate extra-textual Congressional intent. This effect is most noticeable in the area of civil rights. Since 1978, Congress has expressly overruled eight Supreme Court cases that limited the scope of civil rights laws.[108] The incongruity of this fact with the Court's professed intent to faithfully implement the will of the legislature suggests that other ideological forces may be at work.[109] These general arguments are ultimately unconvincing. Most scholars who have considered the question have concluded that whatever association may exist between textualism and conservatism is the product of particular contextual circumstances.[110] What appears to be a liberal position today may have been a quintessentially conservative one in the past, or vice versa.[111] The plain meaning approach in and of itself does not privilege any ideological viewpoints, as evidenced by Justice Scalia's willingness to reach traditionally "liberal" results in many cases.[112] When statutes are drafted broadly, the plain meaning of statutory terms may lead to an expansive construction rather than a narrowing one.[113] The conclusion that plain meaning interpretation is not inherently conservative does not, however, demonstrate that dictionaries have no such biases. In fact, most dictionaries are conservative in the broad sense of privileging existing word usage rather than spurring linguistic development.[114] To some extent, dictionaries must reflect settled language patterns; as fixed written works they cannot -- outside of new editions -- take into account the constant evolution of living spoken languages. Yet this aspect of dictionaries can cause difficulties for statutory interpretation. No less a proponent of textualism than Judge Frank Easterbrook recently declared that "the choice among meanings must have a footing more solid than a dictionary -- which is a museum of words, an historical catalog rather than a means to decode the work of legislatures."[115] Furthermore, most major dictionaries go beyond the necessary level of rigidity, and actively seek to constrain linguistic change by assigning normative force to certain "correct" lexical and grammatical forms.[116] Although modern linguistics holds that "'correctness' can only rest upon usage . . . [a]nd all usage is relative,"[117] dictionaries have traditionally sought to preserve existing meanings rather than acknowledge the development of new ones. Dictionaries that move away from this prescriptive approach, such as Webster's Third New International Dictionary, have been met with scorn and ridicule.[118] A preference for continuity over change -- in statutory interpretation and in lexicography -- is not necessarily a harmful posture for courts charged with construing legislative enactments. Judicial decisions that limit statutes to the plain meaning of their texts help to integrate new legislation with existing rules and principles.[119] The inherent conservatism of most dictionaries has similar benefits: authors and readers must assume some level of linguistic certainty in order to achieve parallel understandings of complex texts such as statutes. Particular statutory contexts may, however, counsel against application of the status quo to certain cases. As the following section demonstrates, dictionaries are ill-suited to incorporate such contextual factors.
C. Dictionaries and LanguageDictionaries are not only vehicles of particular judicial programs, but also windows on language itself.[120] The process of divining statutory meaning necessarily implicates linguistic concepts, and the value of dictionaries to interpretation must be judged in part on their ability to reflect the complexities of language. The Court's use of dictionaries is problematic in linguistic terms for much the same reasons that the practice causes difficulties from the perspective of statutory interpretation -- dictionaries are forced to carry far more weight than they were or could be designed to bear.
1. Failure to Capture Statutory Context.One of the most significant flaws of dictionaries as interpretive tools is the imperfect relationship of dictionaries to statutory context. The essence of words can never be described fully in the absence of contextual cues; in fact, many theorists have argued that meaning, as we understand it, does not exist without context.[121] Consequently, no dictionary can completely capture the particular historical and textual context of a statutory term.[122] Nor does any dictionary claim to do so. According to Hart and Sacks's Legal Process materials, dictionaries, like canons of construction, "simply answer the question whether a particular meaning is linguistically permissible, if the context warrants it."[123] Dictionaries are only starting points, organized according to rough analogies and dependent on evidence that "the context warrants" application of their definitions.[124]The limited ability of dictionaries to reflect statutory context can lead courts to interpretive blunders. Dictionaries can be pernicious both when their definitions are applied in an inappropriate context and more subtly, when they obscure or prevent an inquiry into the context of a statute.[125] Under some circumstances, dictionary definitions may even run directly contrary to contextual ordinary meaning. The old case of Nix v. Hedden[126] provides an excellent example of the uncertain relationship between dictionary meanings and the popular understanding of statutory language. At issue in Nix was whether tomatoes were fruits or vegetables under the Tariff Act of 1883.[127] Justice Gray, writing for the Court, acknowledged that dictionaries[128] generally defined a tomato as a fruit. However, because "in the common language of the people [tomatoes] are vegetables,"[129] Justice Gray rejected the dictionary definitions. Nix makes intuitive sense from an ordinary meaning perspective -- Justice Gray was undoubtedly correct that most readers would consider tomatoes vegetables regardless of their botanical classification. However, the decision in Nix can only be justified by an inquiry into the statute's purpose or by an appeal to common sense arguments about the way tomatoes are usually served at meals. This type of analysis correctly seeks to determine the appropriateness of a definition for the particular statutory context, but is precisely the approach the Court today often uses dictionaries to avoid. The current Court's willingness to give presumptive weight to dictionary definitions without explicit pragmatic justifications for its method is therefore as capable of frustrating as of revealing ordinary meaning.[130] The argument that the inappropriateness of the dictionary definition of tomatoes in Nix was obviously contrary the statute's purpose, or to an ordinary reading of the word, only demonstrates that Nix is an easy case, an exception which proves the rule. In close cases, reliance on dictionaries may shift the balance away from precisely the commonsense, ordinary lay meaning that the Court seeks to enunciate. When courts focus on dictionaries rather than on the statutes before them, they create illusory frameworks that may lead to strange or inconsistent decisions. Two recent cases demonstrate the danger of reliance on dictionaries to the exclusion of contextual considerations.[131] In Chapman v. United States,[132] Chief Justice Rehnquist utilized an abstract, technical dictionary definition to reach the awkward conclusion that blotter paper soaked with LSD is a "mixture."[133] The Chief Justice therefore upheld a minimum five-year sentence based on the combined weight of the LSD and the paper used to carry it. As Judge Posner persuasively argued in his dissent in the Court of Appeals, the outcome of the case does not comport with the understanding most ordinary people would have of the term "mixture."[134] Under the Chief Justice's reasoning, a single dose of LSD diluted in a quart of orange juice would lead to a longer sentence than multiple doses diluted in a small cup of orange juice. Arave v Creech[135] concerned the question of whether an Idaho death penalty statute that required a showing of "utter disregard for human life," construed by the state's courts as a showing that the defendant was a "cold-blooded, pitiless slayer," was unconstitutionally vague and subjective.[136] In upholding the statute, Justice O'Connor cited two dictionaries for the proposition that "[i]n ordinary usage . . . the phrase `cold-blooded, pitiless slayer' refers to a killer who kills without feeling or sympathy."[137] Justice Blackmun, in dissent, ridiculed Justice O'Connor's reliance on dictionaries to limit the statute's scope. He cited a series of newspaper articles employing "cold-blooded" for a wide range of crimes, to demonstrate that the majority's construction was not consonant with the ordinary meaning of the phrase.[138] As Justice Blackmun pointed out, Justice O'Connor's definition hardly narrowed the scope of the phrase -- few murderers exhibit sympathy towards those they kill.[139] There is no necessary conflict between the search for plain meaning and contextual analysis.[140] The very notion of a plain "meaning" is parasitic on the conception of meaning itself, which as previously noted implies an established context.[141] The problem is that dictionaries as a source of plain meaning push away from contextual analysis. Dictionaries are not entirely acontextual; they group definitions according to major alternative meanings and often provide examples of recorded usages. Courts engage in an entirely appropriate rough contextual winnowing process as they determine the appropriate definition class to apply to a statute: for example, recognizing implicitly that "sole" in the Constitution refers neither to fish, nor to shoes, but to exclusivity.[142] This process breaks down, however, when a court must make fine contextual distinctions between many plausible definitions from many dictionaries. At this level of specificity, the relation to statutory context is no longer intuitively obvious. A court must justify the jump from the statute to a particular definition with arguments exogenous to the dictionary definition itself. It is this type of reasoning that has been conspicuously absent from many of the Court's recent dictionary-influenced decisions.
2. The danger of categorization.A further difficulty with dictionaries, from a linguistic perspective, is their tendency to assign words to overly simplistic categories. The problem of relating words to explicable groupings has long occupied both linguists and philosophers. Ludwig Wittgenstein's famous story about a game of dice demonstrates the complexity of categorization:
Someone says to me: "Shew the children a game." I teach them gaming with dice, and the other says, "I didn't mean that sort of game." Must the exclusion of the game with dice have come before his mind when he gave me the order?[143] Wittgenstein's tale illustrates the near-impossibility of determining ex ante which particular examples (dice) fit into a general category (games). Two elements of what linguists call "word knowledge" explain this difficulty. First, words are fuzzy at the margins: "When does a hill become a mountain? On a continuum of shapes, when does a cup become a bowl? . . . When we ask people to Come here, how close do they have to be before they have reached the state of herehood?"[144] Second, the conditions for membership in a word-category "are not readily accessible by intuition."[145] Consequently, it is difficult if not impossible to determine with certainty whether a given word fits within a certain set of situations.[146] Authors of dictionaries -- and courts that engage in statutory interpretation -- must attempt this impossible task. Lexicographers recognize that the definitions and categories provided in dictionaries can never be perfect, but seek to achieve the best possible fit in order to assist the reader.[147] Courts perform a similar function in seeking to determine whether a given fact pattern fits within a statutorily-defined class. At least two fundamental differences mitigate the usefulness of lexicographical techniques to judicial interpretation, however. First, courts must definitively resolve every case that comes before them. All judicial decisions invoke the coercive power of the state, whether or not the boundaries of statutory categories are readily identifiable. In contrast, dictionary editors have the luxury of listing many possible definitions without privileging any of them. Second, lexicographers seek to enumerate all possible general categories to which a word can belong, whereas courts must establish the relationship of words to specific situations. Both distinctions suggest that the tentative conclusions of dictionary editors cannot simply be transmuted into the authoritative findings of judges. The Supreme Court, therefore, goes astray when it uncritically applies imperfect dictionary categorizations to resolve controversies definitively.
IV. Toward a More Sensitive Approach to DictionariesThe fundamental problem with the Supreme Court's current use of dictionaries lies in its arbitrariness and overexpansiveness. There is nothing wrong with employing dictionaries to identify the general outlines of word meanings and then relying on contextual arguments from text, structure, history, or policy to determine which meaning is appropriate. Difficulties arise from the assumption that dictionaries provide perfect category boundaries, and then applying those boundaries to contexts never considered by the authors of the dictionaries. Dictionaries can, in some cases, provide valuable assistance to Justices seeking to distill the essence of statutory terms. But dictionaries should occupy a space at the beginning rather than the end of the interpretive process. The Court should accept dictionaries for what they are and use them in an principled fashion if they further particular interpretive goals. A more modest role for dictionaries would also be consistent with the actual structure of most high-quality dictionaries.[148] As Hart and Sacks explained, "[a]n unabridged dictionary is simply an historical record, not necessarily all-inclusive, of the meanings which words in fact have borne, in the judgment of the editors, in the writings of reputable authors."[149]Justice Scalia's dissent in United States v. Smith[150] provides a good starting point for a more sensitive approach to dictionaries.[151] The Court should always ask whether a definition truly fits with popular understanding of a term, and should strive to identify a normal -- rather than merely a permissible -- meaning. Dictionaries should not preclude considerations of statutory context, whether that contextual investigation involves only the structure and content of the statute itself or a broader inquiry into history and intent. If the Court relies on a dictionary, it should make at least some prima facie argument about the relevance of that particular dictionary for interpretation of the statute or constitutional provision under consideration. In short, the Court should acknowledge that in using dictionaries as interpretive tools it is making a choice. That choice must not be left unspoken, and must not be based on simplistic or mistaken assumptions about the applicability of dictionaries to the distinctive project of judicial interpretation. If the Court continues to avoid this acknowledgment, dictionaries will indeed become the "fortress" Judge Hand cautioned against.[152]
[[go to endnotes]]
Appendix A:References to Dictionaries, 1842 Term - 1992 Term
Lists all cases that include the words "dictionary" or "dictionaries." Search of LEXIS, Genfed library, US file (January 4, 1994)
Appendix B:Percentage of Cases Referring to Dictionaries, 1935 Term - 1992 Term
Percentages calculated based on number of signed opinions in each Term, as reported annually by U.S. Law Week.
Appendix C:Dictionary References by Justice, 1988 Term - 1992 Term
Appendix D:Dictionaries Cited, 1988 Term - 1992 TermMultiple references to the same dictionary are noted in brackets.Blackmun Webster's 3rd (no specified year) Webster's 9th Collegiate (1983) [2] Webster's 3rd (1961) Sheridan (1780) Walk(1791) Kersey (1702) Webster's 3rd (1986) [2] Black's (6th ed. 1990) [5] Webster's 3rd (1976) Webster's 3rd (1981) Cunningham (1771) Tolins, Law Dictionary (1836) Bouvier (4th ed. 1852) Blount, Law Dictionary (1670) Brennan Webster's 3rd (1976) Anderson, A Dictionary of Law (1893) Bouvier, Law Dictionary (11th ed. 1866) [2] Cyclopedic Dictionary of Law (1901) Blacks (5th ed. 1979) [3] Blacks (1891) Abbott (1879) Words & Phrases (1905) Webster's 2nd (1957) Funk and Wagnells (1952) Webster's 3rd (1981) OED 2nd (1989) Kennedy Webster's 3rd (1971) [2] Blacks (6th ed. 1990) Bouvier (8th ed. 1914) Webster's 3rd (1986) American Heritage (1981) Marshall Webster's 3rd (1981) Webster's 3rd (1966) Webster's 3rd (1986) Blacks (5th ed. 1979) Blacks (6th ed. 1990) O'Connor Webster's 3rd (1961) Webster's 2nd (1950) Blacks (5th ed. 1979) [4] New English Dictionary (1897) Webster's 2nd (1949) Black's (6th ed. 1990) [5] Webster's 3rd (1986) [2] Blount (1670) Sheridan (1796) Johnson (1785) Richardson (1839) Webster's 3rd (1971) Rehnquist Black's (5th ed. 1979) [3] Cyclopedic Law Dictionary (2d ed. 1922) Random House Dictionary (2d ed. 1987) Webster's 2nd (1945) Webster's 2nd (1942) Johnson (1785) Sheridan (1796) Webster's 3rd (1971) Black's (6th ed. 1990) OED (2d ed. 1989) [2] Webster's 3rd (1986) Scalia Webster's American Dictionary (1828) [4] Linguae Britannicae (1757) Dictionarium Britannicum (1730) Kersey (1702) Sheridan (1780) Walker (1791) Blacks (5th ed. 1979) [2] Webster's 2nd (1957) Webster's 3rd (1981) [3] OED (2d ed. 1989) Webster's 2nd (1950) [4] Blacks (6th ed. 1990) [6] Bouvier, Law Dictionary (1883) Bouvier( 6th ed. 1856) Webster's 2nd (1939) Webster's 2nd (1954) Webster's 2nd (1945) Webster's 3rd (1961) Webster's 9th Collegiate (1983) Ballantine Law Dictionary (2d ed. 1948) Souter Webster's 2nd (1942) [2] Blacks (6th ed. 1990) [5] Random House Dictionary (2d ed. 1987) [2] Webster's 3rd (1976) [2] OED (2d ed. 1989) Ballantine's Law Dictionary (3d ed. 1969) Blacks (3d ed. 1933) Stevens Webster's 3rd (1986) Webster's 3rd (1979) Random House (2d ed. 1987) OED (2d ed. 1989) [2] Webster's 3rd (1966) [2] Blacks (6th ed. 1990) [2] Webster's Collegiate (1975) American Heritage (2d College ed. 1982) Compact OED (1981) Johnson (7th ed. 1785) Sheridan (6th ed. 1796) Webster's 9th Collegiate (1983) Webster's 3rd (1981) Webster's 3rd (1976) Thomas Cunningham (1771) Walker (1791) Webster, American Dictionary (1828) [2] Blacks (6th ed. 1990) [5] Blacks (4th ed. 1951) American Heritage Dictionary (10th ed. 1981) Webster's 3rd (1986) Buchanon, Linguae Brittanicae (1757) Blacks (3d ed. 1933) Cyclopedic Law Dictionary (3d ed. 1940) White Webster's Collegiate (9th ed. 1983) [4] Webster's 3rd (1961) Webster's 3rd (1976) [2] Blacks (6th ed. 1990) [2] Abbott (1879) Anderson (1893) Blacks (1891) Burrill (1871) Blacks (5th ed. 1979) [2]
Endnotes1 Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945). Copyright
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