Looking it up: Dictionaries and statutory interpretation

Harvard Law Review

Volumn 107, Issue 6, 1994, Pages 1437-1453

[No Author Info available]

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0039690139     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341851     Document Type: Article

References (121)

1. Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945).
2. 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. 28, 1994). The first such case was Respublica v. Steele, 2 U.S. (2 Dall.) 92 (1785), in which the Court noted counsel's use of a dictionary. See id. at 92. These 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 dictionaries, may cause fluctuations in the number of dictionary references. However, it is very unlikely that these extraneous factors are responsible for the increase in dictionary use given the magnitude of the recent upsurge and the extended period surveyed.
3. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 321 (1990); 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).
4. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 321 (1990); 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).
5. Several recent Supreme Court cases have been battlegrounds for competing interpretive methodologies. See, e.g., West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 112-16 (1991) (Stevens, J., dissenting); INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J., concurring). For an overview, see Frickey, cited above in note 3, 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.").
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 articles explores in any detail the significance of and rationale for the striking trend toward 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 1, Section 7 Game, 80 GEO. L.J. 523, 552 (1992) ("Justice Scalia himself slavishly relies on dictionaries to interpret statutes . . . .").
7. 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 articles explores in any detail the significance of and rationale for the striking trend toward 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 1, Section 7 Game, 80 GEO. L.J. 523, 552 (1992) ("Justice Scalia himself slavishly relies on dictionaries to interpret statutes . . . .").
8. 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 articles explores in any detail the significance of and rationale for the striking trend toward 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 1, Section 7 Game, 80 GEO. L.J. 523, 552 (1992) ("Justice Scalia himself slavishly relies on dictionaries to interpret statutes . . . .").
9. 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 articles explores in any detail the significance of and rationale for the striking trend toward 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 1, Section 7 Game, 80 GEO. L.J. 523, 552 (1992) ("Justice Scalia himself slavishly relies on dictionaries to interpret statutes . . . .").
10. 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 articles explores in any detail the significance of and rationale for the striking trend toward 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 1, Section 7 Game, 80 GEO. L.J. 523, 552 (1992) ("Justice Scalia himself slavishly relies on dictionaries to interpret statutes . . . .").
11. See supra note 2. Noah Webster sought to have his dictionary endorsed by the Supreme Court in 1831, but Chief Justice John Marshall rejected the offer. 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).
12. Search of LEXIS, Genfed library, US file (Jan. 4, 1994); see infra p. 1454 app.
13. Search of LEXIS, Genfed library, US file (Aug. 22, 1993). Some of the research presented here appeared in a slightly different form in a recent Harvard Law Review Case Comment. See The Supreme Court, 1992 Term - Leading Cases, 107 HARV. L. REV. 144, 298-99 & n.58 (1993) [hereinafter Nixon Comment] (analyzing Nixon v. United States, 113 S. Ct. 732 (1993)). Additional data are presented in the appendix at p. 1454 below.
14. Search of LEXIS, Genfed library, US file (Aug. 22, 1993).
15. Id. Two other authors have reached similar conclusions, based on more limited data. See Solan, supra note 5, at 51 (identifying 90 references during the 1986-1991 period); Stewart, supra note 5, 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 5, 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 . . . .").
16. Search of LEXIS, Genfed library, US file (Jan. 4, 1994).
17. 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 be made between general-use dictionaries and specialized volumes such as Black's Law Dictionary. 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.
18. 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 be made between general-use dictionaries and specialized volumes such as Black's Law Dictionary. 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.
19. 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).
20. DICTIONARY USAGE BY JUSTICE, 1988 TERM-1992 TERM Justice Majority Concurrence Dissent Total Opinions Percentages Rehnquist 6 0 3 9 107 8.41 Brennan 4 0 3 7 88 7.95 White 6 1 4 11 142 7.75 MarshalL 5 2 0 7 96 7.29 Blackmun 6 1 4 11 167 8.38 Stevens 6 0 8 14 245 5.71 O'Connor 10 1 3 14 155 9.68 Scalia 11 4 8 23 204 11.27 Kennedy 4 0 2 6 142 4.23 Souter 6 0 3 9 58 15.52 Thomas 6 2 2 10 45 22.22 Partial concurrences are listed as dissents. Justice Souter replaced Justice Brennan in 1990, and Justice Thomas replaced Justice Marshall in 1991. The data for Justices Souter and Thomas may be less accurate than those for the other Justices because these figures are drawn from many fewer opinions over a shorter period of time. Justice Scalia had both the highest number of opinions mentioning dictionaries in this period and the highest percentage of any Justice on the Court for the entire period
21. See, e.g., Hartford Fire Ins. Co. v. California, 113 S. Ct. 2891, 2901 (1993) (Souter, J.); Daubert v. Merrell Dow Pharmaceutical, Inc., 113 S. Ct. 2786, 2795 (1993) (Blackmun, J.); Smith v. United States, 113 S. Ct. 2050, 2054 (1993) (O'Connor, J.); Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 113 S. Ct. 1489, 1494-95 U993) (White, J.); Commissioner v. Soliman, 113 S. Ct. 701, 706 (1993) (Kennedy, J.); District of Columbia v. Greater Wash. Bd. of Trade, 113 S. Ct. 580, 583 (1992) (Thomas, J.); Chapman v. United States, in S. Ct. 1919, 1926 (1991) (Rehnquist, C.J.); California v. Hodari D., 499 U.S. 621, 624 (1991) (Scalia, J.); Kay v. Ehrler, 499 U.S. 432, 436 n.6 (1991) (Stevens, J.).
22. See Nix v. Hedden, 149 U.S. 304, 307 (1893).
23. Many of the earlier "citations" to dictionaries were either general references or criticisms of the role of dictionaries. See, e.g., Colony, Inc. v. Commissioner, 357 U.S. 28, 33 (1958); 62 Cases of Jam v. United States, 340 U.S. 593, 596 (1951); Hynes v. Grimes Packing Co., 337 U.S. 86, 115-16 (1949).
24. See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS 1220 (tent. ed. 1958).
25. See, e.g., Chapman v. United States, in 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 suggesting a contrary result).
26. Search of LEXIS, Genfed library, US file (Aug. 22, 1993).
27. For examples of the centrality of dictionaries in two opinions from last Term, see p. 1443 below.
28. See, e.g., Randolph, supra note 5, at 72 ("[T]he frequency of these [dictionary] citations reflects a tilt toward textualism.").
29. See Stewart, supra note 5, at 47.
30. See Eskridge & Frickey, supra note 3, at 321.
31. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 625 (1990), Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 415-16 (1989).
32. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 625 (1990), Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 415-16 (1989).
33. The terms are often used interchangeably, and this Note will do the same unless otherwise indicated. The phrase "plain meaning rule" is sometimes used to describe the construction of statutes that are so unambiguous that recourse to extra-textual interpretive sources is unnecessary. See WILLIAM N. 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 we range of statutes to which a broader plain meaning method is applied that a distinction between plain and ordinary meaning often makes little sense. See Schauer, supra note 10, at 231-32.
34. This phrase was coined by Professor Eskridge. See Eskridge, supra note 25, at 623.
35. See Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HAHV. J.L. & PUB. POL'Y 61, 61-62 (1994) (advocating limited use of legislative history); Eskridge, supra note 25, at 623 ("The new textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant."). See Schauer, supra note 10, at 246 ("[P]lain language discourse dominates the Court's statutory interpretation cases."); see also Easterbrook, supra note 28, at 67 (demonstrating that the plain meaning approach has influenced the entire Court).
36. 111 S. Ct. 2354 (1991).
37. Id. at 2369 (Scalia, J., dissenting).
38. Id. at 2376.
39. See, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 325 (1988) (Scalia, J., concurring in part and dissenting in part); see also Easterbrook, supra note 28, at 63 ("[T]he concern is that only a relatively mechanical approach can be reconciled with the premises of democratic governance."); Eskridge & Frickey, supra note 3, at 340 ("By emphasizing the statutory words chosen by the legislature . . . textualism also appeals to the values of legislative supremacy and judicial restraint."). Such arguments have been attacked on many levels. 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). It is not the purpose of this Note to join this debate. The Court's reliance on dictionaries raises important issues even if the premises of plain meaning are taken as a given.
40. See NORMAN J. SINGER, SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION § 46.02, at 92 (sth ed. 1992) ("[Dictionary definitions, which report common usage, are often mentioned in court opinions which are labelled as literal statutory applications."). The identification has become so pervasive that many commentators use the terms almost interchangeably. See, e.g., Sunstein, supra note 25, at 416 ("Some textualists emphasize the 'plain meaning' or dictionary definition of statutory terms . . . ."). Dictionaries have the added virtue of appearing "neutral," thus gaining greater legitimacy for judges concerned about judicial subjectivity. See Solan, supra note 5, at 56.
41. See Chisom, in S. Ct. at 2372 (Scalia, J., dissenting).
42. Id.
43. See id. 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).
44. Justice Scalia also investigated contextual arguments about the meaning of "representatives." Nonetheless, his analysis began from the initial dictionary-derived conclusion that judges 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 (1993), for example, rejected a strained dictionary-based interpretation and offered instead a construction based on common sense and contextual arguments. See id. at 2060-61 (Scalia, J., dissenting); infra note 46. 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).
45. 113 S. Ct. 2050 (1993).
46. See id. at 2053.
47. 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)).
48. 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)).
49. Id.
50. Id.
51. See id. at 2055. Although dictionaries do provide alternative definitions, they do so to allow the reader to choose among them based on contextual analysis. See infra p. 1450. Justice O'Connor appears to have ignored this essential step of the analysis.
52. Smith, 113 S. Ct. at 2055.
53. Justice Scalia, despite his usual predisposition toward reliance on dictionaries, dissented in Smith. See id. at 2060 (Scalia, J., dissenting). 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," id. at 2061, 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. 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. 1452-53 below.
54. All words are subject to multiple interpretations. See infra pp. 1445-46. In some cases, owever, words are so ambiguous that a reviewing court, looking only at the text, cannot say with certainty which of those interpretations should apply.
55. For another recent example of this practice, see Ardestani v. INS, 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).
56. 113 S. Ct. 732 (1993).
57. In Nixon, the Court construed the Constitution rather than a federal statute. Although statutory and constitutional interpretation are often considered discrete endeavors, the Court has generally not made any distinction in its use of dictionaries for the two types of 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).
58. See Nixon, 113 S. Ct. at 734.
59. See U.S. CONST, art. I, § 3, cl. 6 ("[T]he Senate shall have the sole Power to try all Impeachments."); Nixon, 113 S. Ct. at 740. For an explanation of the centrality of dictionaries to the Court's analysis in Nixon, see Nixon Comment, cited above in note 8, at 296-303.
60. Nixon, 113 S. Ct. at 736.
61. See id.
62. See supra p. 1443. Justice O'Connor used dictionaries in a similar way in Arave v. Creech, 113 S. Ct. 1534 (1993). The Arave Court considered 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. Id. at 1540-41. 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." Id. at 1541. Justice Blackmun, in dissent, ridiculed Justice O'Connor's reliance on dictionaries. 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. See id. at 1547 (Blackmun, J., dissenting).
63. 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.").
64. See United States v. Smith, 113 S. Ct. 2050, 2055 (1993).
65. 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" provided in Black's Law Dictionary, "surely it would have so indicated").
66. See supra note 34.
67. See Easterbrook, supra note 28, at 67. The claims of this Note do not depend on the assumption that the Court always uses dictionaries to ascertain ordinary meaning. Rather, new textualist arguments provide a lens through which to view the use of dictionaries and the interpretive process.
68. Most textualists confine their attacks to legislative history, which they believe to be particularly subject to multiple interpretations and judicial manipulation. See, e.g., Eskridge, supra note 25, at 650-55.
69. See, e.g., Wainwright v. Witt, 469 U.S. 412, 433 (1985) (generalizing about what "the dictionary definitions" of certain words would signify).
70. See Sunstein, supra note 25, at 418-19 ("To say that courts should rely on the words or on their ordinary meaning . . . is unhelpful when statutory words have more than one dictionary definition, or when the context produces interpretive doubt.").
71. 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, ordinary meaning must mean something narrower than possible meaning. See id. at 2061 (Scalia, J., dissenting). 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."
72. 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 decisionmaking 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.").
73. 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 decisionmaking 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.").
74. 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).
75. 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.").
76. See generally Eskridge, supra note 65, 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 Ste FRANCIS LIEBER, LEGAL AND POLITICAL HERMENEUTICS 26-30, 42 (Boston, Charles C. Little & James Brown enlarged ed. 1839).
77. But see Easterbrook, supra note 28, 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.
78. See Easterbrook, supra note 28, 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.").
79. For example, the first edition of the Oxford English Dictionary was completed in 1928, and the complete second edition was not issued until 1989. See Aaron J. Rynd, Dictionaries and the Interpretation of Words: A Summary of Difficulties, 24 ALBERTA L. REV. 712, 714 (1991). Moreover, the attitudes of linguists and lexicographers toward the proper role of dictionaries evolve between various volumes. See Evans, supra note 70, at 57-58.
80. See Stewart, supra note 5, at 47.
81. The one exception involves the use of old dictionaries to show the original meaning of old tutes, 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 5, at 55.
82. 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, in S. Ct. 2354, 2372 (1991) (Scalia, J., dissenting).
83. 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).
84. 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).
85. One can only speculate that the 1950 edition happens to be most prominent in Justice Scalia's chambers; no other Justice cited that edition during the three-year period.
86. 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. 1452-53 below.
87. See supra p. 1443.
88. In recent years, conservative Justices have cited dictionaries with the greatest frequency. See supra note 14. Furthermore, dictionaries are, in the broad sense, inherently conservative, because they strive to describe current usage rather to than spur linguistic development. See Evans, supra note 70, at 58. See generally RONALD A. WELLS, DICTIONARIES AND THE AUTHORITARIAN TRADITION 7 (1973) (detailing the relationship between dictionaries and efforts to constrain linguistic change).
89. See, e.g., Erwin Chemerinsky, The Supreme Court, 1988 Term - Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 59-60 (1989) (considering but ultimately dismissing this view).
90. See infra p. 1454 app.
91. 198 U.S. 45 (1905). Morton Horwitz, in a recent article, explicitly links the current Court's vision of the Constitution to that of the Lochner Court. See Morton J. Horwite, The Supreme Court, 1092 Term - Foreword: The Constitution of Change: Legal Fundamentally Without Fundamentalism, 107 HARV. L. REV. 32, 98-116 (1993).
92. See, e.g., Horwitz, supra note 83, at 98-102. But cf. Schauer, supra note 10, at 246-47 (claiming that there is no evidence linking plain meaning to any particular ideology).
93. 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, they recognize implicitly that "sole" in the Constitution refers neither to fish, nor to shoes, but to exclusivity. See Nixon v. United States, 113 S. Ct. 732, 736 (1993). 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.
94. 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 works 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) (1953).
95. 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 works 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) (1953).
96. 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 works 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) (1953).
97. 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 works 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) (1953).
98. 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 5, at 73 ("A statute, however, cannot be understood merely by understanding the words in it."). ]
99. 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 5, at 73 ("A statute, however, cannot be understood merely by understanding the words in it."). ]
100. HART & SACKS, supra note 18, at 1221.
101. DICKERSON, supra note 86, at in (explaining that contextual analysis allows courts to choose appropriate meanings from a list of possible meanings).
102. See Sunstein, supra note 25, 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 G. 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).
103. 149 U.S. 304 (1893). The majority in Nix staked out a more limited role for dictionaries JH than the current Court has employed. See id. at 307.
104. See id. at 306.
105. Contemporary dictionaries still define the tomato as a fruit. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2406 (1986).
106. Nix, 149 U.S. at 307.
107. See id.
108. 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).
109. 113 S. Ct. 732 (1993).
110. See Nixon Comment, supra note 8, at 300.
111. 111 S. Ct. 1919 (1991).
112. See id. at 1926.
113. WITTGENSTEIN, supra note 86, at 33e.
114. Solan, supra note 5, at 53; see also LIEBER, supra note 68, at 33 (illustrating the imprecision of the boundaries between words).
115. Solan, supra note 5, at 53.
116. This inherent uncertainty in language may enhance the appeal of dictionaries to judges. See Weis, supra note 5, at 971. However, dictionaries do not eliminate linguistic uncertainty See Randolph, supra note 5, at 72.
117. Their more modest goal is to identify and illustrate commonly accepted usages as clearly as possible. See HART & SACKS, supra note 18, at 1220.
118. 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 70, at 62.
119. 113 S. Ct. 2050 (1993).
120. See id. at 2060-62 (Scalia, J., dissenting); supra note 46. Justice Scalia used dictionaries in a similarly thoughtful way in Moskal v. United States, 498 U.S. 103 (1990). See id. at 119-26 (Scalia, J., dissenting).
121. See Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945).