War of the Words: How Courts Can Use Dictionaries Consistent with Textualist Principles

By Rubin, Phillip A. | Duke Law Journal, October 2010 | Go to article overview

War of the Words: How Courts Can Use Dictionaries Consistent with Textualist Principles


Rubin, Phillip A., Duke Law Journal


ABSTRACT

Dictionaries have an aura of authority about them--words mean what the dictionary says they mean. It therefore seems only sensible that courts seeking the plain meaning of language would look to dictionaries to find it. Yet to employ dictionaries as objective sources of meaning is to use them in a manner inconsistent with their creation and purpose. Previous scholarship has identified the Supreme Court's increasing reliance on dictionaries in construing statutes and constitutional provisions, and several articles have discussed different inherent problems with this practice. This Note builds upon that scholarship by bringing together the problems identified in prior articles, by identifying additional problems, and by proposing a set of best practices for courts seeking to use dictionaries in a manner consistent with textualist principles. Unless a principled approach is adopted, judges invoking dictionaries in textualist analysis are open to criticism for, at best, using dictionaries incorrectly--and, at worst, using them to reach their preferred outcomes.

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Few people ask by what authority the writers of dictionaries and grammars say what they say.

--S.I. Hayakawa (1)

INTRODUCTION

Judge Harold Leventhal once said, and Justice Scalia has repeated, that the use of legislative history is "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends," allowing judges to pick the evidence that best supports their own policy preferences. (2) Legislative history, however, is not the only external source of interpretation which can be used in this way. Dictionaries, too, lend themselves to this sort of manipulation, and in recent years, the Court has referred increasingly to dictionaries to determine the ordinary meanings of words. (3)

Dictionary usage is particularly important in textualist analysis, (4) which seeks to find "a sort of 'objectified' intent--the intent that a reasonable person would gather from the text of the law" (5) and places foremost priority on the text itself, as opposed to utilizing external sources of understanding. (6) This method has its proclaimed roots in democratic principles: if the nebulous intent of the legislature controls over the plain meaning of its published text, how could citizens be on notice about the law which they are to follow? (7)

Textualism has seen increased purchase on the Supreme Court in recent years, (8) and with it, the Court has relied increasingly on dictionaries in its opinions. (9) Prior to 1864, the Court used dictionaries as authority only three times. (10) Yet during the 1990 through 1998 Terms, the Court used dictionaries to define more than 220 terms. (11) This trend has continued into the 2000s, with the Court citing dictionaries (legal, specialty, or general purpose) in twenty-three cases during the 2008-2009 Term alone. (12) This is consistent with earlier findings, for example, that the Court utilized dictionary definitions in 28 percent of the 107 cases for which opinions were published in the 1991 Term. (13)

The manner in which the Court uses dictionaries has changed over time as well. Although in the past the Court would "employ[] dictionaries to refresh the Justices' memory about the meaning of words, or to provide potential meanings from which the Court would select based on statutory purpose, legislative intent, common sense, or some other contextual argument," more recent cases have placed dictionaries--rather than policy, context, or structure--at the center of the case. (14) Though previous scholars have suggested that dictionaries are less accepted in questions of constitutional interpretation, (15) several significant new cases suggest that dictionaries now play a crucial role in the interpretation of the Constitution as well. (16) With core constitutional questions, such as the meaning of the Second Amendment, (17) being decided on the basis of dictionary definitions, it can no longer be said that the "use of the dictionary to define constitutional terms . …

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