The Supreme Court's Use of Dictionaries in Statutory and Constitutional Interpretation

By 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 Dictionaries

Dictionaries 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 Interpretation

The 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 Dictionaries

Adherents 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 Approach

The 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 Meaning

Contrary 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 Conservatism

The 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 Language

Dictionaries 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 Dictionaries

The 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

Chart A

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

Chart B

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

Chart C

Appendix D:

Dictionaries Cited, 1988 Term - 1992 Term

Multiple references to the same dictionary are noted in brackets.
Webster's 3rd (no specified year)
Webster's 9th Collegiate (1983) [2]
Webster's 3rd (1961)
Sheridan (1780)
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)

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)

Webster's 3rd (1971) [2]
Blacks (6th ed. 1990)
Bouvier (8th ed. 1914)
Webster's 3rd (1986)
American Heritage (1981)

Webster's 3rd (1981)
Webster's 3rd (1966)
Webster's 3rd (1986)
Blacks (5th ed. 1979)
Blacks (6th ed. 1990)

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)

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)

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)

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)

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)

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)

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]


1 Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945).
2 This paper will focus exclusively on the Supreme Court, both for reasons of brevity and because the Supreme Court establishes interpretive patterns which are followed by the entire federal judiciary. The discussion applies equally well to other courts, however.
3 At the time of this writing, LEXIS listed 664 Supreme Court cases that mention the words "dictionary" or "dictionaries." Search of LEXIS, Genfed library, US file (Mar. 21, 1994).
4 See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 321 (1990) ("In the last decade, statutory interpretation has reemerged as an important topic of academic theory and discussion."); Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 Minn. L. Rev. 241, 241 (1992) (reflecting on the increased scholarly interest in statutory interpretation); David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921, 921 (1992) ("Academic interest in questions of statutory interpretation has reached a new peak just as the Supreme Court's approach to the task of interpretation is going through a sort of sea-change.").
5 Several recent Supreme Court cases have been battlegrounds for competing interpretive methodologies. See, e.g., West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 112 - 16 (1991) (Stevens, J., dissenting); I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J., concurring). For an overview, see Frickey, supra note 4, at 256 ("Since the mid-1980s, the debate has raged among at least three schools of statutory interpretation theory. . . . The Supreme Court remains up for grabs.").
Theories of statutory interpretation have also generated public discussion in recent years. See, e.g., Laurence H. Tribe, Clarence Thomas and `Natural Law', N.Y. Times, July 15, 1991, at A15; Edward Walsh & Al Kamen, Judge Bork Pledges `to Interpret Law and Not to Make It', Washington Post, Sept. 20, 1987, at A16.
6 Only a few articles have addressed the Court's use of dictionaries. See A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 71 (1994); Lawrence Solan, When Judges Use the Dictionary, 68 Am. Speech 50 (1993); David O. Stewart, By the Book: Looking Up the Law in the Dictionary, A.B.A. J., July 1993, at 46; James L. Weis, Jurisprudence by Webster's: The Role of the Dictionary in Legal Thought, 39 Mercer L. Rev. 961 (1988). None of these explored in any detail the significance of and rationale for the striking trend towards increased dictionary references. More general works on statutory interpretation occasionally acknowledge the prominence of dictionaries among advocates of certain jurisprudential schools. See, e.g., William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523, 552 (1992) ("Justice Scalia himself slavishly relies on dictionaries to interpret statutes . . . .").
7 See Frank H. Vizetelly, The Development of the Dictionary of the English Language 9 - 15 (1915); Ernest Weekley, On Dictionaries, Atlantic Monthly, June, 1924, at 782, 783 - 87. American dictionaries also have a long tradition; Noah Webster's first dictionary was printed in 1806. Webster's American Dictionary, generally considered the first work of American lexicography to rival the great European dictionaries, was published in 1828.
There were several other dictionaries in common use in the early eighteenth century; the first American legal dictionary appeared in 1883. See David Mellinkoff, The Myth of Precision and the Law Dictionary, 31 U.C.L.A. L. Rev. 423 (1983). 8 See Respublica v. Steele, 2 U.S. (2 Dall.) 92, 92 (1785).
9 Search of LEXIS, Genfed library, US file (Jan. 4, 1994). Such computer searches are admittedly imperfect, but they suffice to confirm significant trends and patterns in the Court's practice. A variety of factors, such as the predilections of individual Justices and of their clerks, the type of cases before the Court, and the availability of various dictionaries may cause fluctuations in the number of dictionary references. However, it is very unlikely that these extraneous factors are responsible for the recent increase in dictionary use given the magnitude of the upsurge and the extended period surveyed.
10 See Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 Minn. L. Rev. 269, 298 & n.131 (1992).
11 Search of LEXIS, Genfed library, US file (Jan. 4, 1994); see also infra Appendix A. The one period of significantly increased citation to dictionaries prior to the 1980s was the early years of the twentieth century. For speculation about the significance of this earlier increase, see pp. 30 - 31, below.
12 Search of LEXIS, Genfed library, US file (Aug. 22, 1993). Some of the research presented here appeared in a slightly different form in a case comment I authored last year. See The Supreme Court, 1992 Term -- Leading Cases, 107 Harv. L. Rev. 144, 298 - 99 & n.58 (1993) (analyzing Nixon v. United States, 113 S. Ct. 732 (1993)) [hereinafter Nixon Comment]. Additional data are presented in graphical format in Appendix A.
13 Search of LEXIS, Genfed library, US file (Aug. 22, 1993). The absolute number of citations might be considered statistically less significant than the percentage of opinions in each Term that refer to dictionaries. Although consistent data on the number of published opinions is not readily available for years prior to 1933, an analysis of the percentage of opinions referring to dictionaries over the years for which data are available shows no significant deviation from the trend established by the raw number of citations. See infra Appendix B.
14 Search of LEXIS, Genfed library, US file (Aug. 22, 1993). Two other authors have reached similar conclusions, based on more limited data. See Solan, supra note 6, at 51 (identifying 90 references to dictionaries during the 1986 - 1991 period); Stewart, supra note 6, at 46 (citing 54 references in 38 cases between January 1, 1992 and May 17, 1993).
In addition, a few observers have identified the trend anecdotally. See, e.g., Randolph, supra note 6, at 71 ("[M]ore and more disputes about the meaning of statutes are greeted with citations to dictionaries."); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 231 ("The Justices . . . have been spending their time reading (Noah) Webster . . . .").
Data from the 1993 Term have not been included because the Term was incomplete at the time of this writing.
15 Search of LEXIS, Genfed library, US file (Jan. 4, 1994). The Justices undoubtedly consulted dictionaries in other cases, but did not cite them in their opinions. Such usage is necessarily unquantifiable, and in any event the incidence of dictionary references in published opinions reflects the degree to which the Justices feel comfortable publicly declaring their usage of dictionaries.
16 The various printings of Webster's Third New International Dictionary, with 40 references, and the sixth edition of Black's Law Dictionary, with 35 citations, have been most frequently cited over the past five Terms. Search of LEXIS, Genfed library, US file (Mar. 21, 1994).
Some distinction could theoretically be made between general-use dictionaries and specialized legal volumes such as Black's Law Dictionary. As the data indicate, however, the Court has not limited itself to either type of work, and the Justices have given no indication that they find non-legal dictionaries less useful to their interpretive endeavors.
For a breakdown of which dictionary each Justice has cited over the past five Terms, see Appendix D.
17 See, e.g., Commissioner v. Soliman, 113 S. Ct. 701, 706 (1993) (defining "principal" in the Internal Revenue Code); Grady v. Corbin, 495 U.S. 508, 529 (1990) (Scalia, J., dissenting) (citing five old dictionaries to establish the original meaning of the Double Jeopardy Clause).
18 See infra Appendix C. Justice Scalia had both the highest number of opinions mentioning dictionaries and the highest percentage of opinions for any Justice on the Court during the entire 1988 - 1992 period. Justices Scalia and Thomas both had substantially higher percentages of opinions referring to dictionaries during this period, but these numbers are suspect due to the much smaller number of opinions each has written.
19 See, e.g., Hartford Fire Ins. Co. v. California, 113 S. Ct. 2891, 2901 (1993) (Souter, J.) (defining "business" in the McCarran-Ferguson Act); Daubert v. Merrell Dow Pharmeceuticals, Inc., 113 S. Ct. 2786, 2795 (1993) (Blackmun, J.) (defining "knowledge" in the Federal Rules of Evidence); Smith v. United States, 113 S. Ct. 2050, 2054 (1993) (O'Connor, J.) (defining "use" of a firearm); Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 113 S. Ct. 1489, 1494 - 95 (1993) (White, J.) (defining "neglect" in the Bankruptcy Code); Commissioner v. Soliman, 113 S. Ct. 701, 706 (1993) (Kennedy, J.) (defining "principal" in the Internal Revenue Code); District of Columbia v. Greater Washington Bd. of Trade, 113 S. Ct. 580, 583 (1992) (Thomas, J.) (defining "relate to" in ERISA); Chapman v. United States, 111 S. Ct. 1919, 1926 (1991) (Rehnquist, C.J.) (defining "mixture" in a criminal statute); California v. Hodari D., 499 U.S. 621, 624 (1991) (Scalia, J.) (defining "seizure" in the Fourth Amendment); Kay v. Ehrler, 499 U.S. 432, 436 n.6 (1991) (Stevens, J.) (defining "attorney" in an attorney's fee shifting statute).
20 See Nix v. Hedden, 149 U.S. 304, 307 (1893) ("[D]ictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court."); see also Brown v. Piper, 91 U.S. 37, 42 (1875) ("[I]f the judge's memory is at fault, he may refresh it by resorting to any means for that purpose which he may deem safe and proper.").
21 In fact, many of the "citations" to dictionaries prior to 1980 were either general references or criticisms of the role of dictionaries, rather than specific citations. See, e.g. The Colony, Inc. v. C.I.R., 357 U.S. 28, 33 (1958); Sixty-Two Cases, More or Less, Each Containing Six Jars of Jam v. United States, 340 U.S. 593, 596 (1951); Hynes v. Grimes Packing Co., 337 U.S. 86, 115 - 16 (1949).
22 Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1220 (tent. ed. 1958).
23 See, e.g., Chapman v. United States, 111 S. Ct. 1919, 1926 (1991) (using a dictionary definition of "mixture" despite the awkward results it could create); Board of Educ. v. Mergens, 496 U.S. 226, 237 - 40 (1990) (relying on dictionary definitions of "curriculum" despite strong policy arguments to the contrary).
24 Search of LEXIS, Genfed library, US file (Aug. 22, 1993).
25 For examples of the centrality of dictionaries in two opinions from last Term, see pp. 16 - 20.
26 Others have hinted at this conclusion or asserted that some relationship must exist, but I am unaware of any previous effort to systematically related dictionaries to developments in statutory interpretation. See, e.g., Randolph, supra note 6, at 72 ("[T]he frequency of these [dictionary] citations reflects a tilt toward textualism.").
27 See Stewart, supra note 6, at 47 (theorizing that less experienced Justices may resort to dictionaries because they are less "comfortable interpreting statutory language on the basis of their experience and reasoning").
28 See Eskridge & Frickey, supra note 4, at 321 (stating that statutes are "now our primary source of law").
29 See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 625 (1990); Shapiro, supra note 4, at 921; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 415 - 16 (1989).
30 The terms are often used interchangeably, and this paper will do the same, unless otherwise indicated. The "plain meaning rule" is often used to describe the construction of statutes that are so unambiguous that recourse to extra-textual interpretive sources is unnecessary. See William M. Eskridge, Jr. & Philip P. Frickey, Cases and Materials on Legislation 573 - 75, 591 - 92 (1988). In recent years, however, the Court has so far extended the range of statutes to which the broader plain meaning method is applied that a distinction between plain and ordinary meaning often makes little sense. See Schauer, supra note 14, at 231 - 32.
31 The phrase "new textualism" was coined by Professor William Eskridge. See Eskridge, supra note 29, at 623.
32 32 See id. at 623. The new textualism harkens back to an interpretive method that enjoyed prominence prior to World War II. See Harry W. Jones, The Plain Meaning Rule and Extrinsic Aids in the Interpretation of Federal Statutes, 25 Wash. U. L.Q. 2, 5 (1939).
33 See Eric Schnapper, Statutory Misinterpretations: A Legal Autopsy, 68 Notre Dame L. Rev. 1095, 1114, 1117 (1993); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 61 - 62 (1994) (advocating the use of legislative history only in limited circumstances; Eskridge, supra note 29, at 623 ("The new textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant.").
34 See Eskridge, supra note 29, at 623.
35 111 S. Ct. 2354 (1991).
36 Id. at 2369.
37 Id. at 2376.
38 See, e.g., KMart Corp. v. Cartier, Inc., 486 U.S. 281, 325 (1988) (Scalia, J., concurring in part and dissenting in part); see also Easterbrook, supra note 33, at 63 ("The concern is that only a relatively mechanical approach can be reconciled with the premises of democratic governance."); Eskridge & Frickey, supra note 4, at 340 ("By emphasizing the statutory words chosen by the legislature, rather than (what seem to be) more abstract and judicially malleable interpretive sources, textualism also appeals to the values of legislative supremacy and judicial restraint.").
39 See Eskridge, supra note 29, at 656 - 60.
40 Chisom v. Roemer, 111 S. Ct. 2354, 2369 (Scalia, J., dissenting); see also Schauer, supra note 14, at 246 ("[P]lain language discourse dominates the Court's statutory interpretation cases.").
41 See Easterbook, supra note 33, at 67 (demonstrating that even Justices not commonly associated with textualism now sometimes base majority opinions on plain meaning interpretation).
42 See, e.g., Daniel A. Farber, The Inevitability of Practical Reason, 45 Vand. L. Rev. 533, 550 - 54 (1992) (criticizing various manifestations of "formalist" interpretation).
43 See, e.g., Schnapper, supra note 33, at 1108 - 09.
44 See, e.g., Schauer, supra note 14, at 253 - 55.
45 See Norman J. Singer, Sutherland on Statutes and Statutory Construction 46.02, at 92 (5th ed. 1992) ("[D]ictionary definitions, which report common usage, are often mentioned in court opinions which are labeled as literal statutory applications.").
46 See, e.g., Sunstein, supra note 29, at 416 ("Some textualists emphasize the `plain meaning' or dictionary definition of statutory terms . . . .").
47 See Solan, supra note 6, at 56.
48 See Chisom v. Roemer, 111 S. Ct. 2354, 2372 (1991) (Scalia, J., dissenting).
49 Id.
50 See id. (citing Webster's Second New International Dictionary 2114 (1950)). Other dictionaries do include elected judges within the definition of "representative." See, e.g., American Heritage Dictionary of the English Language 1532 (3d ed. 1992).
51 Although Justice Scalia cited to the 1950 printing, Webster's Second New International Dictionary was originally published in 1934. The timing is not insignificant. Webster's Third New International Dictionary was released in 1961 to a storm of controversy about its more permissive approach to language. See James Sledd & Wilma R. Ebbitt, Dictionaries and That Dictionary 50 - 250 (1962). Given the important differences between Webster's Second and Webster's Third, and the fact that the Voting Rights Act was passed only a few years after the release of Webster's Third, Justice Scalia's continued reliance on the older volume is especially noticeable.
52 Justice Scalia also investigated various other arguments regarding the meaning of "representatives" in the statutory context. Nonetheless, his analysis began from the initial dictionary-derived conclusion that judges normally would not fit within the ordinary meaning of the statute.
In other cases, Justice Scalia has taken a much less wooden approach to ordinary meaning interpretation. His dissent in Smith v. United States, 113 S. Ct. 2050, 2060 - 61 (1993), for example, rejected a strained dictionary-based interpretation and offered instead a construction based on common sense and contextual arguments. See infra note . For a detailed discussion of Justice Scalia's more nuanced jurisprudence, see Nicholas S. Zeppos, Justice Scalia's Textualism: The "New" New Legal Process, 12 Cardozo L. Rev. 1597, 1615 - 16 (1991).
53 113 S. Ct. 2050 (1993).
54 Id. at 2053.
55 See id. at 2054 (citing Webster's New International Dictionary of the English Language 2806 (2d ed. 1949) and Black's Law Dictionary 1541 (6th ed. 1990)).
56 Id.
57 See id. at 2055.
58 Id.
59 See infra pp. 35 - 41.
60 See id. at 2060.
61 Id. at 2061.
62 This sensitivity to context and common sense demonstrates that a more enlightened approach to using dictionaries is possible within the confines of ordinary meaning jurisprudence. For a more detailed description of such an approach, see pp. 43 - 46.
63 See infra pp. 35 - 36.
64 For another recent example of this practice, see Ardestani v. Immigration and Naturalization Serv., 112 S. Ct. 515, 519 (1991) (O'Connor, J.) (stating that, because the word "under" has many possible definitions, the Court must determine its meaning by context rather than by citing dictionaries).
65 113 S. Ct. 732 (1993).
66 Nixon differs from Smith and most cases that involve dictionaries in that the Court construed the Constitution rather than a federal statute. Although statutory and constitutional interpretation are often considered distinct endeavors, the Court has generally not made any distinction in its use of dictionaries for the two types of cases. The Court has employed dictionaries to interpret the Constitution in a number of recent cases. See, e.g., Helling v. McKinney, 113 S. Ct. 2475, 2483 (1993) (interpreting the Eighth Amendment); California v. Hodari D., 499 U.S. 621, 624 (1991) (interpreting the Fourth Amendment). For the most part, such cases have cited old dictionaries to demonstrate the meaning of constitutional language at the time it was drafted.
67 See Nixon, 113 S. Ct. at 734.
68 U.S. Const. art. I, 3, cl. 6.
69 See id. at 735.
70 See id. at 740. For an explanation of the centrality of dictionaries to the Court's analysis in Nixon, see Nixon Comment, supra note 12, at 296 - 303.
71 See Nixon, 113 S. Ct. at 736.
72 See id. The Chief Justice's opinion, which found the matter to be a nonjusticiable political question, was not wholly persuasive on its own merits. See Nixon Comment, supra note 12, at 300.
73 See supra pp. 16 - 17. Justice O'Connor used dictionaries in a similar way in Arave v. Creech, 113 S. Ct. 1534, 1541 (1993). See infra pp. 39 - 40.
74 See infra pp. 44 - 45.
75 See, e.g., Board of Educ. v. Mergens, 496 U.S. 226, 270 - 71 (1990) (Stevens, J., dissenting) ("The dictionary is a necessary, and sometimes sufficient, aid to the judge confronted with the task of construing an opaque act of Congress. In a case like this, however, I believe we must probe more deeply to avoid a patently bizarre result.").
76 United States v. Smith, 113 S. Ct. 2050 (1993). See supra pp. 16 - 17.
77 See, e.g., Pioneer Inv. Servs. v. Brunswick Assocs. Ltd., 113 S. Ct. 1489, 1502 (1993) (O'Connor, J., dissenting) (asserting that, if Congress wished to depart from the accepted meaning of "excusable neglect," as defined in Black's Law Dictionary, "surely it would have so indicated").
78 See supra note - 46.
79 See Easterbrook, supra note 33 at 67.
80 See, e.g., Eskridge, supra note 29 at 650 - 55.
81 See, e.g., Wainwright v. Witt, 469 U.S. 412, 433 (1985) (generalizing about what "the dictionary definitions" of certain words would signify).
82 Lexicographers recognize their inability to establish unitary meanings for terms. See infra pp. 35 - 36, 43.
83 See Sunstein, supra note 29, at 418 - 19 ("To say that courts should rely on the words or on their ordinary meaning -- the plain meaning approach -- is unhelpful when statutory words have more than one dictionary definition, or when the context produces interpretive doubt.").
84 In Smith, the issue was whether bartering a gun fell within the category of "use," so there is some validity to Justice O'Connor's argument. See Smith v. United States, 113 S. Ct. 2050, 2055 (1993). However, as Justice Scalia persuasively argued in dissent, see id. at 2061, ordinary meaning must mean something narrower than possible meaning. The fact that some group of readers may be found who would understand a statutory term a certain way does not mean that this particular reading is "ordinary."
85 See Note, Fact and Opinion in Defamation: Recognizing the Formative Power of Context, 58 Fordham L. Rev. 761, 768 n.42 (1990) ("Dictionaries are assembled for particular audiences and purposes. Selecting a dictionary and then relying upon its definitions are themselves interpretive choices. . . ."). Even ardent textualists agree that judges are not automata, and that some interpretative decision-making must be part of the judicial function. The error lies in the assumption that dictionaries can render judicial decisions objective. In reality, interpretive theories only reintroduce the subjectivity of the interpreter at a meta-level. Cf. William N. Eskridge, Jr., Gadamer/Statutory Interpretation, 90 Colum. L. Rev. 609, 679 (1990) ("Gadamer does not tell us . . . what dictionary to use.").
86 Judges who rely extensively on dictionaries act as though they assume that legislatures consult particular dictionaries when they write statutes. See Nicholas S. Zeppos, Legislative History and the Interpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, 76 Va. L. Rev. 1295, 1320 (1990). 87 See id. at 1321 n.109 ("The air of unreality surrounding efforts to link Congress to a particular dictionary seems far more absurd than the fiction of linking a committee report to the intent of the legislature.").
88 See generally Eskridge, supra note 29, at 632 - 66 (applying Gadamerian hermeneutics, which describes interpretation as a dialogic interaction between authors and interpreters, to legal analysis). Part of the problem arises from the fact that fixed statutory texts can only approximate the multitude of potential interpretations generated through communicative discourse. See Francis Lieber, Legal and Political Hermeneutics 26-30, 42 (Boston, Charles C. Little & James Brown enlarged ed. 1839).
89 But see Easterbrook, supra note 33, at 69 (claiming textualists should look to the enacting Congress as the proper "interpretive community"). Most textualists distinguish the search for unitary legislative intent in statutory interpretation (which they criticize) from originalism in constitutional interpretation (which they support). For a discussion of the implications of this distinction, see Arthur Stock, Note, Justice Scalia's Use of Sources in Statutory and Constitutional Interpretation: How Congress Always Loses, 1990 Duke L.J. 160, 175 - 78.
90 See Easterbrook, supra note 33, at 61 ("The purposes, and so the meaning [of texts] will change with context, and over time."); Bergen Evans, But What's a Dictionary For?, Atlantic Monthly, May 1962, at 57, 58 ("All languages are dynamic rather than static, and hence a `rule' in any language can only be a statement of contemporary practice. Change is constant -- and normal.").
91 For example, the first edition of the Oxford English Dictionary was completed in 1928, and it was not until 1989, more than sixty years later, that the complete second edition was issued. See Aaron J. Rynd, Dictionaries and the Interpretation of Words: A Summary of Difficulties, 24 Alberta L. Rev. 712, 714 (1991). In addition to the changes in the language itself, the attitudes of linguists and lexicographers towards the proper role of dictionaries evolves between various volumes as well. See Evans, supra note 90, at 57 - 58.
92 See Stewart, supra note 6, at 47.
93 The one exception involves the use of old dictionaries to show the original meaning of old statutes, and of the Constitution. Given the changes in the English language over the years and the difficulties of reconstructing the original understanding of drafters who lived two centuries ago, such an approach raises its own problems. See Solan, supra note 6, at 55.
94 See Hartford Fire Ins. Co. v. California, 113 S. Ct. 2891, 2901 (1993); Austin v. United States, 113 S. Ct. 2801, 2813 (1993) (Scalia, J., concurring); Deal v. United States, 113 S. Ct. 1993, 1996 (1993); Chisom v. Roemer, 111 S. Ct. 2354, 2372 (1991) (Scalia, J., dissenting).
95 See Smith v. United States, 113 S. Ct. 2050, 2061 (1993) (Scalia, J., dissenting); Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753, 762 (1993). 96 See Wisconsin Dep't. of Revenue v. William Wrigley Co., 112 S. Ct. 2447, 2453 (1992); California v. Hodari D, 499 U.S. 621, 624 (1991).
97 One can only speculate that the 1950 edition happens to be most prominent in Justice Scalia's chambers; no other Justice cited to that edition during the three-year period.
98 The Court need not cite every available dictionary in each opinion to demonstrate the accuracy of its definitions. After all, the problem is too much dictionary citation, not too little. For a more rational framework for using dictionaries, see pp. 44 - 46.
99 See infra pp. 16 - 20.
100 In recent years, conservative Justices have cited dictionaries with the greatest frequency. See infra Appendix C.
Furthermore, the Justices less aligned with textualism (Justices White, Stevens, and Blackmun) generally cite to less comprehensive dictionaries such as Webster's Collegiate, suggesting that they view the dictionary as a handy assistant rather than a source of decisive authority. Justice White in particular seems content to employ a desk dictionary rather than looking to an unabridged edition. See, e.g., Shaw v. Reno, 113 S. Ct. 2816, 2840 (1993) (White, J., dissenting) (citing Webster's Ninth Collegiate Dictionary in a footnote); Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151, 2158 (1993) (White, J.) (citing Webster's Ninth Collegiate Dictionary in a footnote); Pioneer Investment Servs. Co. v. Brunswick Associates Ltd. Partnership., 113 S. Ct. 1489, 1495 (1993) (citing Webster's Ninth Collegiate Dictionary).
101 See infra Appendix C.
102 See id.
103 See infra Appendix A.
104 198 U.S. 45 (1905).
105 Morton Horwitz, in a recent article, explicitly links the current Court's vision of the Constitution -- and the structure of its opinions -- to that of the Lochner Court. See Morton J. Horwitz, The Supreme Court, 1992 Term -- Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 Harv. L. Rev. 32, 98 - 116 (1993).
106 See id.; see also ??? Ross, Reaganist Realism Comes to Detroit, 1989 U. Ill. L. Rev. 399, 420 - 33.
107 See Horwitz, supra note 105, at 100 & n.335; Cass R. Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873, 882 - 83 (1987).
108 See Steven R. Greenberger, Civil Rights and the Politics of Statutory Interpretation, 62 U. Colo. L. Rev. 37, 38 (1991); Schnapper, supra note 33, at 1095 - 96.
109 Indeed, several members of Congress publicly attacked the Court for what they perceived to be an ideological opposition to civil rights legislation. See 137 Cong. Rec. H3876 (daily ed. June 4, 1991) (Rep. Owen); id. at H3851 (Rep. Conyers); id. at H3859 (Rep. Hughes); id. at H3865 (Rep. DeFazio); id. at H3866 (Rep. Kennedy); id. at H3889 (Rep. Collins); id. at H3853 (Rep. Hoyer).
110 See Erwin Chemerinsky, The Supreme Court, 1988 Term -- Foreword: The Vanishing Constitution, 103 Harv. L. Rev. 43, 59 - 60 (1989); Eskridge, supra note 29, at 668 - 69; Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 Wm. & Mary L. Rev. 827, 829 (1991).
111 See Richard Fallon, The Ideologies of Federal Courts Law, 74 U. Va. L. Rev. 1141, (1988) (discussing the shifting political identification of "federalist" and "nationalist" positions in Federal Courts law).
112 Justice Scalia's dissent in Smith v. United States, 113 S. Ct. 2050, 2060 - 61 (1993), as discussed above at page 18, exemplifies his willingness to follow plain meaning even when it leads away from traditionally "conservative" viewpoints. For additional examples, see Eskridge, supra note 29, at 669 n.193.
113 See Shapiro, supra note 4, at TAN 60 (discussing the broad interpretation occasioned by the Court's application of the plain meaning rule in the "snail darter" case).
114 See Weekley, supra note 7, at 787 - 88 ("We now know that the duty of the lexicographer is to record and not to criticize); cf. Evans, supra note , at 58 (explaining that modern linguists recognize that dictionaries can only hope to serve as accurate reflections of the state of spoken language at a particular time).
115 Easterbrook, supra note 33, at 67.
116 See Ronald A. Wells, Dictionaries and the Authoritarian Tradition 7 passim (1973) ("Almost since its beginning, the English dictionary has been linked culturally with attitudes which have been fundamentally opposed to linguistic change.").
117 See Evans, supra note 90, at 58.
118 See Wilson Follett, Sabotage in Springfield, Atlantic Monthly, Jan. 1962, at 73 ("Webster III has thrust upon us a dismaying assortment of the questionable, the perverse, the unworthy, and the downright outrageous.").
119 See Shapiro, supra note 4, at TAN 148 ("The tilt toward continuity . . . is not anti-legislation or anti-legislature. It is -- or at least it can be -- the highest form of cooperation with the legislative enterprise.").
120 Although they are designed to be purely descriptive, dictionaries influence current usage by ratifying the acceptability of new terms. See Follett, supra note 118, at 77.
121 According to John Dewey, the dictionary meanings of words are only "potential rather than actual until they are linked to other words." John Dewey, Logic 349 (1938). For examples of other theorists emphasizing the importance of interpretive context to meaning, see Reed Dickerson, The Interpretation and Application of Statutes 103 & n.2, 105 (1975); C.K. Ogden & I.A. Richards, The Meaning of Meaning 9 - 10 (1989); and Ludwig Wittgenstein, Philosophical Investigations 181e - 83e (G.E.M. Anscombe trans., 4th ed. 1976).
122 Cass Sunstein encapsulates this point well:
The meaning of any "text" is a function not of the bare words, but of its context and the relevant culture. Because of the context, words sometimes have a meaning quite different from what might be found in Webster's or the Oxford English Dictionary. Courts do not and should not "make a fortress out of the dictionary." Cass R. Sunstein, Principles, Not Fictions, 57 U. Chi. L. Rev. 1247, 1247 (1990) (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945)); see also William T. Mayton, Law Among the Pleonasms: The Futility and Aconstitutionality of Legislative History in Statutory Interpretation, 41 Emory L.J. 113, 122 (1992) ("In statutory interpretation, then, the dictionary may be a starting point, but it is the relation of the word to other words, by grammatical conventions, that does much of the work of establishing meaning."); Randolph, supra note 6 at 73 ("A statute, however, cannot be understood merely by understanding the words in it.").
123 Hart & Sacks supra note 22, at 1221. More recent commentators would take issue with Hart and Sacks's placement of canons of construction in the same category of dictionaries. See, e.g., Shapiro, supra note 4, at TAN 102 - 150. 124 Dickerson, supra note 121, at 111 (explaining that contextual analysis allows courts to choose appropriate meanings from a list of possible meanings). 125 See Sunstein, supra note 29, at 417 ("Moreover, reliance on ordinary or dictionary definitions, without reference to context, will sometimes lead to interpretive blunders."). For an example of the way over-reliance on dictionaries can warp the interpretive process, see Jennifer Grace Redmond, Note, Redefining Race in Saint Francisco College v. Al-Khazraji and Shaare Congregation v. Cobb: Using Dictionaries Instead of the Thirteenth Amendment, 42 Vand. L. Rev. 209, 210 - 17, 224 - 28 (1989).
126 149 U.S. 304 (1893). The majority opinion in Nix staked out a more limited role for dictionaries than the current Court has employed. See supra note 20.
127 See id. at 306.
128 Contemporary dictionaries still define the tomato as a fruit. See Webster's Third New International Dictionary 2406 (1986) (defining the tomato as the fruit of a certain kind of plant).
129 Nix, 149 U.S. at 307.
130 Cf. Albert Kiralfy, The Dictionary and the Law 10 J. Legal Hist. 389, 390 - 91 (1989) (quoting several British jurists refusing to use dictionaries on the grounds that they bore no relationship to the ordinary meaning of statutes). 131 Of course, contested cases never have unambiguously "correct" outcomes. In both Chapman and Arave, the dictionary-based approach garnered a majority of Justices of the Supreme Court, and both decisions are defensible on other textual and policy grounds. However, the results seem to conflict with the "ordinary meaning" that the Court's turn to dictionaries ostensibly is designed to uncover.
132 111 S. Ct. 1919 (1991).
133 See id. at 1926.
135 113 S. Ct. 1534 (1993).
136 See id. at 1540 - 41.
137 Id. at 1541.
138 See id. at 1547 (Blackmun, J., dissenting).
140 See Mashaw, supra note 110, at 829.
141 See supra p. 35 & n.121.
142 Cf. Nixon v. United States, 113 S. Ct. 732, 736 (1993) (defining "sole").
143 Wittgenstein, supra note 121, at 23.
144 Solan, supra note 6, at 53; see also Lieber, supra note 88, at 33.
145 Id.
146 This inherent uncertainty in language may be one reason judges are drawn to dictionaries. See Weis, supra note 6, at 971. However, dictionaries do not eliminate linguistic uncertainty. See Randolph, supra note 6, at 72.
147 See Hart & Sacks, supra note 22, at 1220 ("The editors of dictionaries are never victims of the one-word, one-meaning fallacy."). Their more modest goal is to identify and illustrate commonly accepted usages as clearly as possible.
148 Major unabridged dictionaries, such as Webster's Third New International Dictionary and The Oxford English Dictionary support their definitions with historical examples of the usage of words in various contexts. See Evans, supra note 90, at 62. This method may be valuable for the lexicographic enterprise of demonstrating the actual usage of words, but it is less helpful to the jurist intent on applying a word to specific facts:
Of neither Webster's nor [The Oxford English Dictionary] can it be said that a contemporary person or legislature must have intended any of the meanings given. If this cannot be affirmed, then it may follow that the linchpin of justification for consulting a dictionary formally or informally in the judicial process can be questioned.
Rynd, supra note 91, at 715.
149 Hart & Sacks, supra note 22, at 1220.
150 113 S. Ct. 2050 (1993).
151 See id. at 2050 (Scalia, J., dissenting); supra p. 18. Justice Scalia used dictionaries in a similarly sensitive way in Moskal v. United States, 498 U.S. 103 (1990). See id. at 119 - 26 (Scalia, J., dissenting).
152 See Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945).


Copyright 1995, 1996 by Kevin Werbach. Last updated December 31, 1995.