War of the words: How courts can use dictionaries in accordance with textualist principles

Duke Law Journal

Volumn 60, Issue 1, 2010, Pages 167-206

  Rubin, Phillip A ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 78649379184     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (212)

1. S.I. Hayakawa, How Dictionaries Are Made, in THE SEAGULL READER: ESSAYS 69, 69 (Joseph Kelly ed., 2002).
2. E.g., Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) (crediting Judge Leventhal for the metaphor).
3. See Note, Looking It Up: Dictionaries and Statutory Interpretation, 107 HARV. L. REV. 1437, 1438-42 (1994) (detailing the increased reliance by the Supreme Court on dictionaries, focusing in particular on the 1988-1992 Terms).
4. see also Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 ARIZ. ST. L.J. 275 app. (1998) (detailing dictionary usage from the 1988 Term through the 1995 Term).
5. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (1997).
6. (discussing the purposes of and principles behind statutory interpretation).
7. (stating that interpreting statutes based on legislative intent is "simply incompatible with democratic government, or indeed, even with fair government").
8. See infra Part I.
9. For a detailed discussion of the Court's increased tendency to cite to dictionaries, see Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 BUFF. L. REV. 227, 244-62 (1999).
10. It is covered here briefly only to frame the problem at hand and to update the data.
11. A Westlaw search in the SCT database for "dictionary & da(aft 8/2008 & bef 7/2009)" yielded twenty-three results.
12. For an example of a recent case in which the Court placed dictionary definition at the heart of the analysis, see District of Columbia v. Heller, 128 S. Ct. 2783 (2008). This case is discussed in Part IV.B, infra.
13. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009) (using legal and general dictionaries to define "affidavit" as it has been applied to the Confrontation Clause).
14. Heller, 128 S. Ct. at 2791-92 (relying extensively on dictionaries to define the individual terms of the Second Amendment); Giles v. California, 128 S. Ct. 2678, 2683 (2008) (using a dictionary to define "procure" and "procurement" as "to contrive and effect" in the context of making a witness unavailable).
15. See infra Part IV.B.
16. See infra notes 56-57 and accompanying text.
17. See infra Part III.D.
18. See, e.g., Craig Hoffman, Parse the Sentence First: Curbing the Urge to Resort to the Dictionary when Interpreting Legal Texts, 6 N.Y.U.J. LEGIS. & PUB. POL'Y 401, 406 (2003) ("Dictionaries are less helpful when the inquiry properly extends beyond the word level.").
19. See infra Part III.
20. For a discussion of the lack of judicial guidelines for using dictionaries.
21. See generally Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989) (discussing originalism and comparing it to other philosophies).
22. See George H. Taylor, Structural Textualism, 75 B.U.L. REV. 321, 323 (1995) ("Textualist interpretation seems to have gained increased attention, including on the Supreme Court, particularly since the arrival of Justice Scalia." (footnotes omitted)).
23. See, e.g., Thomas B. Colby & Peter J. Smith, Living Originalism, 59 DUKE L.J. 239, 247-55 (2009) (discussing "original intent" originalism and its eventual evolution into "original plain meaning" originalism).
24. ("What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.").
25. Some scholars have pointed to the tension between "plain" and "ordinary" meaning, referring to dictionaries as an example of plain meaning that might not be ordinary.
26. See, e.g., Lawrence M. Solan, The New Textualists' New Text, 38 LOY. L.A.L. REV. 2027, 2036-38 (2005) (arguing that the distinction between these two terms-not generally made by the Court-would affect which evidence a court would consider in its analyses).
27. Describing Justice Scalia as the "most notable" of the new textualists, Jason Weinstein defines "new textualism" as "a method of statutory interpretation whereby a judge reads a statute and asks how the ordinary reader would interpret the text.".
28. Jason Weinstein, Note, Against Dictionaries: Using Analogical Reasoning to Achieve a More Restrained Textualism, 38 U. MICH. J.L. REFORM 649, 650 (2005).
29. Calling the use of a dictionary a "failed mechanism to pinpoint exact parameters of words when it is written to do exactly the opposite," Weinstein argues that new textualists should avoid dictionaries entirely, substituting analogical reasoning in their place.
30. This Note disagrees with a wholesale prohibition on the use of dictionaries, instead creating a framework under which dictionaries can be used in a manner consistent with textualist principles.
31. See infra Part III.
32. WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, LEGISLATION AND STATUTORY INTERPRETATION 235 (2d ed. 2006) (describing Justice Scalia's position on new textualism).
33. Although Justice Scalia's new textualism in particular has seen increased acceptance on the Court, this Note addresses textualism generally, given that whichever denomination of textualism one might ascribe to, the basic rule of determining the objective meaning of statutory language from the text of the statute itself easily suggests the use of dictionaries as an objective interpretative tool.
34. This observation is true whether one applies "soft plain meaning" textualism, in which the text controls absent "compelling evidence of a contrary legislative intent," id. at 232, or something more akin to Justice Scalia's new textualism.
35. (criticizing the concept of a "Living Constitution" as an improper method of constitutional interpretation).
36. (explaining that nontextualist modes of constitutional interpretation allow judges to "trump[] even the statutes of democratic legislatures"). Despite its claims to objectivity, textualism has likewise been criticized for selectively using certain interpretive tools to reach desired outcomes.
37. See infra notes 56-57 and accompanying text.
38. ("Justice Scalia is insistent that judges should almost never consult, and never rely on, the legislative history of a statute.").
39. (emphasis omitted) (quoting Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845)) (internal quotation marks omitted).
40. ("A statute, however, has a claim to our attention simply because Article I, section 7 of the Constitution provides that since it has been passed by the prescribed majority (with or without adequate understanding), it is a law.").
41. Justice Scalia points out the perils of relying on legislative history by quoting a debate on the Senate floor during which the committee chair admitted that he had neither helped to write nor read in full the committee report of the bill under consideration. The Senate, the transcript points out, neither formally considered nor adopted the committee report when adopting the bill itself, yet such a report was likely to be cited were the Court to later evaluate the final statute.
42. Justice Scalia also points out that this concern would not be remedied even if legislators knew the content of the committee reports, because a legislator's knowledge of what the bill means is "not a precondition for the authoritativeness of a statute," id. at 34, because Article I, Section 7 places no such condition on Congress, id. at 35.
43. See id. at 31 ("My Court is frequently told, in briefs and in oral argument, that 'Congress said thus-and-so'-when in fact what is being quoted is not the law promulgated by Congress, nor even any text endorsed by a single house of Congress, but rather the statement of a single committee of a single house, set forth in a committee report.").
44. ("The argument raised is that it is impossible to speak of 'an' intent of a multi-member legislature.").
45. (discussing critiques of legislative history which call it "multifaceted, potentially manipulable, and often unfocused and even contradictory").
46. See, e.g., Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 CHI.-KENT L. REV. 441, 445 (1990) (noting that, unlike legislative history, the text of a statute has passed "a difficult set of procedural hurdles and either passed by a two-thirds vote or obtained the President's signature," but failing to address that dictionaries have not passed such hurdles either).
47. see also Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 872 (1930) ("A legislative intent, undiscoverable in fact, irrelevant if it were discovered, is the last residuum of our 'golden rule.' It is a queerly amorphous piece of slag. Are we really reduced to such shifts that we must fashion monsters and endow them with imaginations in order to understand statutes?").
48. For the argument that textualists treat dictionaries as an "inherent part of determining the meaning of the text," making them essentially internal.
49. see also Grp. Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 247 (1979) (Brennan, J., dissenting) ("The Congress that passed McCarran-Ferguson was composed of neither insurance experts nor dictionary editors."). Congress has imposed some general rules of construction.
50. For example, a statute's use of a masculine form applies to the feminine as well; the use of a singular noun also refers to the plural. 1 U.S.C. § 1 (2006).
51. Abner J. Mikva, A Reply to Judge Starr's Observations, 1987 DUKE L.J. 380, 386.
52. Following this logic, Congress could actually create a new meaning for a word through statute, if it chose to do so.
53. (discussing the tendency of courts not to use legislative history before the 1940s).
54. Gompers v. United States, 233 U.S. 604, 610 (1914).
55. See B.T. SUE ATKINS & MICHAEL RUNDELL, THE OXFORD GUIDE TO PRACTICAL LEXICOGRAPHY 2 (2008) ("Dictionaries are often perceived as authoritative records of how people 'ought to' use language, and they are regularly invoked for guidance on 'correct' usage.
56. They are seen, in other words, as prescriptive texts.
57. Lexicographers have long been uncomfortable with this idea....").
58. HOWARD JACKSON, LEXICOGRAPHY: AN INTRODUCTION 21 (2002) ("[W]e all take what the dictionary says as authoritative....").
59. see also infra Part III.B.
60. ("To Justice Scalia, dictionary definitions are objective and dispositive only when they narrow the power of the federal government." (footnote omitted)).
61. see also David M. Zlotnick, Justice Scalia and His Critics: An Exploration of Scalia's Fidelity to His Constitutional Methodology, 48 EMORY L.J. 1377, 1389-90 (1999) (noting that "Scalia's opinions generally reflect his theoretical bias toward defining words narrowly" and discussing Scalia's use of dictionaries to construe constitutional language narrowly).
62. Indeed, legislative history might be more legitimate in this regard, given that legislative history can at least claim a connection to the legislative process and Congress's acquiescence to its publication. Dictionaries are wholly external.
63. ("Even a textualist might find something of value in legislative history, which might be a more democratically legitimate guide to meaning than the commonly deployed dictionaries that so fascinate the current Supreme Court.").
64. Though the full history of dictionaries is fascinating, this Note does not discuss it, instead touching on historical concepts only insomuch as they affect the use of dictionaries in legal interpretation today.
65. For an excellent and detailed discussion of the history of the dictionary.
66. ("Compare some of the entries [of different dictionaries], and you soon realise that the notion of 'the dictionary' as a single text is wide of the mark. What distinguishes them is more notable than what they have in common.").
67. (listing specific considerations for, among other dictionary properties, a dictionary's language, coverage, size, and purpose).
68. See id. at 27-28 (discussing the various decisions made during the creation of a dictionary).
69. This Note discusses only briefly the deep underpinnings of lexicography here, as a broader overview of the process is sufficient to display potential problems dictionaries pose for legal scholars. For a good discussion of the lexicographical processes utilized by modern dictionary editors, see, for example, Aprill
70. See SIDNEY I. LANDAU, DICTIONARIES: THE ART AND CRAFT OF LEXICOGRAPHY 44 (2d ed. 2001) (discussing the massive volume of information that lexicographers must sort through and the degree of scholarship required to complete the process).
71. Some of the vast citation files are still found only in paper form because the cards cannot be scanned into a computer due to faint type or handwriting.
72. ("However important corpora are, they cannot be as up-to-the-minute as citation files, because it takes time to convert and process text and to incorporate it into the rest of the corpus. So citation collection is still important for finding new words and senses and for spotting trends in usage....").
73. see also id. at 182 ("The native-speaker dictionaries have been slower to make use of corpora than [English-as-a-second-language] dictionaries....").
74. ("Citation reading continues to have value, especially as a form of lexicographic training. But now that most written texts... are available in digital form, it has become a more marginal way of collecting linguistic data.").
75. (discussing the impossibility of collecting every instance of the use of a modern language, thus making the corpus a sample).
76. (noting the decisions that corpus designers must make). But see id. ("For major languages like English, data sparseness is a thing of the past and corpus size has almost ceased to be an issue.").
77. Although this problem can largely be avoided with due care, seemingly representative sources can be skewed simply by, for example, including a work of fiction in which the main character is a neurosurgeon whose work is described in technical detail.
78. See id. (giving as an example the novel Saturday by Ian McEwan).
79. (discussing the difficulties of recording "spontaneous, unscripted speech"). In the past, volunteers were recruited to create tape-recorded conversations to generate such samples for the corpus-but such information is costly.
80. ("The whole point of using corpora is to avoid pre-judging the data and choosing texts because you approve of them in some way.").
81. It is for this reason, Landau surmises, that WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1961) dropped the "informal" label, causing a huge controversy in the process.
82. See id. at 258 ("The editors may have felt that they could not define or know the attitudes of the class of people to whom some usages would be informal.... In deciding not to use the informal label, [Webster's Third] simply declined to represent a particular social class.").
83. See generally HERBERT C. MORTON, THE STORY OF WEBSTER'S THIRD: PHILIP GOVE'S CONTROVERSIAL DICTIONARY AND ITS CRITICS (1994) (discussing the controversy surrounding the changes in presentation and research made in creating Webster's Third); infra note 104 and accompanying text.
84. (explaining that lexicographers must make final judgments based on their experience and the available evidence).
85. (discussing the Oxford English Dictionary's deliberate focus on inclusion of the works of authors such as T.S. Eliot, James Joyce, and Virginia Woolf, even including unique uses of words by prolific authors).
86. Inevitably, then, the average one-volume dictionary can cover only a small proportion of the vocabulary of a language." (citation omitted)). Online dictionaries could potentially reduce some of the size limitations present in printed dictionaries.
87. See Erin McKean Redefines the Dictionary, TED (Mar. 2007), http://www.ted.com/talks/erin_mckean_redefines_the_dictionary.html (discussing the future of dictionaries).
88. Clarke D. Cunningham and his colleagues describe this well, noting that: Even when a dictionary does record a usage that corresponds to what appears to be a legally relevant meaning, it is dangerous to rely on the way that usage is characterized, categorized, and ordered.
89. Dictionary entries are severely limited by time and space constraints; lexicographers must prepare thousands of dictionary entries, each one of which must fit into a very small space and predetermined format. Whether a particular usage is listed first or last in an entry has no bearing on whether it is the "plainest" meaning for the word in the context in question.
90. Clark D. Cunningham, Judith N. Levi, Georgia M. Green & Jeffrey P. Kaplan, Plain Meaning and Hard Cases, 103 YALE L.J. 1561, 1615 (1994) (book review).
91. ("Considerations of available space always place practical limits on the number of entries that can be accommodated, especially in a one-volume dictionary.... If a college dictionary did not limit its entry count, it would run out of space somewhere in the letter D...."). (discussing the practical limitations lexicographers face in assembling word usages). Landau also notes that because dictionaries are expected to define every word used to define other words, it becomes almost a necessity to develop a complete word list before beginning to define any of the words
92. ("[S]ubject-field dictionaries often have a normative purpose as well as an informative one, and they tend to be more encyclopedic in content.").
93. (describing the struggle between prescriptive grammarians and descriptive linguists). The shift toward description over prescription began in the mid-twentieth century, as demonstrated by a publication of the National Council of Teachers of English (NCTE) called The English Language Arts, which supported the idea that language is naturally in constant change and that correctness of the language "rests on usage.".
94. (discussing the movement in the 1940s and 1950s toward an understanding of English that embraced natural change and evolution of the language).
95. ("Lexicographers did not always prefer description to prescription.").
96. ("I don't want to be a traffic cop.... So if I had to think of some kind of occupation as a metaphor for my work [as a lexicographer], I would much rather be a fisherman. I wanna throw my big net into the deep blue ocean of English and see what marvelous creatures I can drag up from the bottom.").
97. The controversy over Webster's Third is not covered in great detail here, but entire books have been devoted to the subject.
98. DICTIONARIES AND THAT DICTIONARY (James Sledd & Wilma R. Ebbitt eds., 1962) (containing dozens of essays and critiques of Webster's Third).
99. Justice Scalia even disposed of an unfavorable definition from Webster's Third by referring to the controversy discrediting the dictionary.
100. See MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 227-28 (1994) (disregarding the Webster's Third definition of the word "modify").
101. see also William Safire, On Language: Scalia v. Merriam-Webster, N.Y. TIMES MAG., Nov. 20, 2004, at 30, 32 (discussing the MCI case and Scalia's argument against Webster's Third).
102. Despite Justice Scalia's aversion to it in MCI, Webster's Third is the Court's "most popular usage dictionary, appearing in 102 opinions through the 1997-1998 term.".
103. At the same time, some modern dictionaries are more descriptive or prescriptive than others. For example, the American Heritage Dictionary seeks to chart a more prescriptive path than Webster's Third.
104. See Andrew Adam Newman, Wordsmiths: They Also Serve Who Only Vote on 'Ain't,' N.Y. TIMES, Dec. 23, 2006, at B11 ("American Heritage was intended as a more prescriptive response to Webster's Third, and to this day dictionaries strive to strike that balance between guarding and updating the language.").
105. Interestingly, Justice Scalia serves as a member of the American Heritage Dictionary's usage panel, helping to determine the "correct" meaning of words in this more-prescriptive dictionary. Merriam-Webster has no plans to implement a usage panel for updates to Webster's Third. Id.
106. (referring specifically to Webster's Third, which was published in 1961).
107. ("Even the 20-volume [Oxford English Dictionary] makes no claim to include all the vocabulary of English.").
108. (referring specifically to desk dictionaries); see also id. at 377 (discussing the strict length requirements often imposed on definers by dictionary editors).
109. (noting that "unlike the [Oxford English Dictionary] or Webster's Third, the definitions listed for 'exercise' in the college edition of Webster's New World Dictionary of the American Language do not include any reference to the practice of religion").
110. Compare AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 97 (4th ed. 2000) (including under the definition of "arms," the example of "troops bearing arms"), with AMERICAN HERITAGE COLLEGE DICTIONARY 77 (4th ed. 2002) (lacking this specific example, with the entire definition including fewer military connotations).
111. Cf. Richard W. Bailey, Introduction to DICTIONARIES OF ENGLISH, at v (Richard W. Bailey ed., 1987) ("It would take seven hours or more for a reader to mark the twenty or thirty new words in a single issue of the New York Times at an estimated cost of sixty dollars; recording and filing the data would cost very probably forty dollars. Each quotation in the file would cost very probably three to five dollars."). In terms of space within the actual book itself, some unabridged dictionaries choose to spend some margin space on pictures.
112. See, e.g., text accompanying infra note 212.
113. (quoting AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 389 (3d ed. 1992)).
114. And this problem is not resolved even in the Fourth Edition.
115. Interestingly, this edition contains a number of relatively recent computer-related terms, such as "computerized axial tomography," "computer literacy," and "computer-aided design.".
116. This example demonstrates that adding new words to a dictionary may, at times, be easier than accounting for changes in the meanings of older words.
117. This issue is exacerbated by the fact that dictionaries, particularly older ones, are known to copy each other-so a dictionary from 1850 may include research from the 1830s, and may simply copy another dictionary from 1830 that is based upon research from the early 1800s.
118. See, e.g., Rickie Sonpal, Note, Old Dictionaries and New Textualists, 71 FORDHAM L. REV. 2177, 2189 (2003) (noting that Noah Webster "borrowed from earlier dictionaries," including, at times, "entry words, definitions, and quotations" without acknowledgement).
119. It should be noted, however, that "larger synchronic dictionaries such as [Webster's Third] take in a broader band of time than smaller works.".
120. Historical dictionaries, such as the Oxford English Dictionary, require "a fully diachronic corpus," like the Oxford Historical Corpus, which covers twelve centuries.
121. ("Essentially, corpus-builders have to decide 'how diachronic' their corpus needs to be in order to support the kind of lexicography they will be doing.").
122. See, e.g., District of Columbia v. Heller, 128 S. Ct. 2783, 2790-91 (2008) (reviewing dictionaries from the 1700s and early 1800s to determine the meaning of the Second Amendment).
123. Even the dictionaries' authors themselves have, at times, acknowledged the inherently subjective nature of dictionaries.
124. See, e.g., Geoffrey Nunberg, Usage in The American Heritage Dictionary, in THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, ("Custom can provide precedents and criticism can provide principles, but each has to be evaluated at the bar of opinion.").
125. (explaining the complex inner working of sentence structure and noting that all fluent speakers seem to inherently understand sentences even without referencing such rules).
126. (describing lexicographers' goal of identifying and describing "word senses").
127. Some of these rules have been suggested in one way or another in one of several previous articles on dictionaries and the Supreme Court.
128. My goal here is to bring together these suggestions in one cohesive collection in much the same style of Professor H. Jefferson Powell's Rules for Originalists.
129. See generally H. Jefferson Powell, Rules for Originalists, 73 VA. L. REV. 659 (1987) (collecting fourteen rules for the responsible use of history in constitutional interpretation).
130. Though Professor Powell's article does not address dictionaries, its analysis of the use of historical evidence in originalist constitutional interpretation is similar in purpose to this Note-as is some of the advice.
131. See, e.g., id. at 660 ("[T]he turn to history does not obviate the personal responsibility of the originalist interpreter for the positions he takes, because historical research itself, when undertaken responsibly, requires of the interpreter the constant exercise of judgment.").
132. Judge Randolph refers to dictionaries as "word zoos" because "[o]ne can observe an animal's features in the zoo, but one still cannot be sure how the animal will behave in its native surroundings.".
133. A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 71, 74 (1994).
134. Smith v. United States, 508 U.S. 223 (1993).
135. See id. at 241-46 (Scalia, J., dissenting) ("We are dealing here not with a technical word or an 'artfully defined' legal term, but with common words that are... inordinately sensitive to context." (citation omitted)).
136. see also infra Part IV.A.
137. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
138. see also infra Part IV.B.
139. (quoting CASS SUNSTEIN, AFTER THE RIGHTS REVOLUTION 114 (1990)).
140. ("[D]ictionaries should occupy a space at the beginning rather than at the end of the interpretative process.").
141. ("Although dictionaries cannot provide the end point in defining terms, dictionaries are a proper and useful source in determining what a word may mean."). This is not to say that a court would not ultimately decide what a word means in the context of a statute-indeed, that is the job of the court in statutory or constitutional interpretation. Instead, this Section argues that the dictionary itself should not be used to provide a dispositive meaning of a word.
142. See, e.g., infra Part IV.B.
143. The real question, perhaps, is which printing of the Constitution to consider. The rules regarding capitalization seemed to be in such flux at the time that different printings of the Constitution from early in the Republic have been found to have numerous differences in capitalization and punctuation.
144. See Denys P. Myers, History of the Printed Archetype of the Constitution of the United States of America, 11 GREEN BAG 2D 217, 240 (2008) ("The Committee of Style and Arrangement allowed [Jacob] Shallus to capitalize every noun in his engrossing but it was restrained in using initial capitals in the printed copy for the Federal Convention.").
145. S.I. HAYAKAWA, LANGUAGE IN THOUGHT AND ACTION 57-58 (4th ed. 1978) (noting that dictionaries are useful not for finding one true perfect meaning but rather for determining "areas of meaning" surrounding a word).
146. See, e.g., Kucana v. Holder, 130 S. Ct. 827, 834 n.10 (2010) (noting that "specified" is not synonymous with "implied" or "anticipated" and citing WEBSTER'S NEW COLLEGIATE DICTIONARY 1116 (1974) for support).
147. See, e.g., District of Columbia v. Heller, 128 S. Ct. 2783, 2791 (2008) (seeking the eighteenth-century meaning of "arms" by looking to dictionaries from 1771, 1773, and 1828).
148. This suggestion also carries with it the need to justify the use of any dictionary, as it "is not always easy to tell when a statute is ambiguous." LAWRENCE M. SOLAN, THE LANGUAGE OF JUDGES 93 (1993).
149. Over time, certain dictionaries would likely become de facto justified for particular uses on the basis of their repeated use in such instances. At present, such repeated use exists, but a justification for doing so does not.
150. See infra Part III.F.
151. (discussing the problems presented by the Court taking the first definition listed in a particular dictionary as the primary meaning, given that many dictionaries order definitions historically or provide no method for the ordering of definitions).
152. E.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 525-26 (1952).
153. Compare WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1996 (1993) (defining "sacrilege" as "the crime of stealing, misusing, or desecrating that which is sacred holy, or dedicated to sacred uses," "the unworthy or irreverent use of sacred persons, places, or things," and "the profanation of that which is dedicated to God or to sacred purposes"), with AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, (defining "sacrilege" simply as "desecration, profanation, misuse, or theft of something sacred").
154. The American Heritage Dictionary's definition seems limited to things whereas Webster's Third explicitly includes persons and places, as well as an internal suggestion as to the definition of sacred-that it includes things "dedicated to God." While this distinction might be narrow, it could have been relevant to the Court's consideration of the word in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), where the court found it impossible to determine the meaning of "sacred" in the context of media censorship.
155. This is not to say that all dictionaries are equal. There might be multiple dictionaries, however, which meet the criteria discussed in this Part concerning a given use, and judges should utilize multiple dictionaries rather than just the first acceptable one they encounter.
156. Justice Scalia's criticism of Webster's Third's definition of "modify" in MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218 (1994), suggests that he, too, should support this principle.
157. In proclaiming Webster's Third's broader definition of the word invalid because it contradicted many other dictionaries, Justice Scalia implicitly acceded to the notion that some survey method is necessary-otherwise, the sole dictionary used could itself be an outlier.
158. Had Webster's Third been the only dictionary the Court consulted in MCI, it seems likely that the definition Justice Scalia rejected would have been accepted as a possibility.
159. One could still attack one of the dictionaries as being inaccurate, poorly made, or inapplicable. This argument is quite similar to that of Professor Frederick F. Schauer regarding legal arguments in general.
160. See FREDERICK SCHAUER, THINKING LIKE A LAWYER: A NEW INTRODUCTION TO LEGAL REASONING 72 (2009) ("Even more frequently, optional authorities are employed in a way that hovers precariously on the edge of genuine authority.
161. Thus, when a lawyer in a brief, a judge in an opinion, or a scholar in a law review article makes reference to an authority, it is often to provide so-called support for some proposition.... But the idea of 'support' here is odd.
162. The authority alleged to provide support is often not one that supports a proposition more than another authority negates it. This kind of 'support' is a peculiar sense of authority, because the balance of all the authorities might not point in one direction or another, or might even point against the very proposition allegedly being supported." (citation omitted)).
163. This, in turn, is quite similar to this Note's earlier argument regarding the survey method and the use of multiple dictionaries.
164. See MODEL RULES OF PROF'L CONDUCT R. 3.3(a)(2) (2009) ("A lawyer shall not knowingly... fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel....").
165. The purpose of this Note and other similarly focused articles, however, is to undermine the idea that any dictionary can be the one true authority on the meaning of a word.
166. Sometimes opposing opinions will even cite to different editions of the same dictionary.
167. See infra Part IV.B.
168. (discussing Justice Thomas's use of SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773), NATHANIEL BAILEY, AN UNIVERSITY ETYMOLOGICAL ENGLISH DICTIONARY (26th ed. 1789), and THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1796), in defining the word "commerce").
169. See id. at 2212-13 (discussing, for example, the Court's willingness to rely on Samuel Johnson's dictionary despite clearly demonstrated "linguistic and nationalistic prejudices-including his scorn for American English and his refusal to record it").
170. To avoid these problems, Sonpal recommends a "usage based" approach, looking to contemporary primary sources instead of dictionaries, though he acknowledges the cost and time issues with such research, noting that truly analyzing a word might take the "experienced editors of the Oxford English Dictionary over one month,".
171. This Note argues that a dictionary could still be relevant if used properly, but Sonpal's point stands: old dictionaries can be problematic.
172. (describing Smith as an example of strict constructionism, "a degraded form of textualism that brings the whole philosophy into disrepute").
173. 18 U.S.C. § 924(c)(1)(A) (2006) (emphasis added); see also Smith v. United States, 508 U.S. at 227-41 (interpreting § 924(c)(1)).
174. Smith, 508 U.S. at 227-28.
175. See id. at 228 ("When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning.").
176. Id. at 228-29 (quoting WEBSTER'S NEW INTERNATIONAL DICTIONARY 2806 (2d ed. 1950)).
177. The Court also utilized Black's Law Dictionary, which had a similar definition. Id. at 229 (citing BLACK'S LAW DICTIONARY 1541 (6th ed. 1990)).
178. See id. at 241-42 (Scalia, J., dissenting) ("It is... a fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used." (quoting Deal v. United States, 508 U.S. 129, 132 (1993))).
179. Professor Hoffman praises Justice Scalia's approach in the dissent as proper. See id. at 423 (calling Justice Scalia's reasoning an "admirable attempt to throw off" an out-of-context method of dictionary use).
180. See District of Columbia v. Heller, 128 S. Ct. 2783, 2789 (2008) (noting the disagreement between the petitioners and the respondent over whether the amendment relates only to militia service or to "an individual right to possess a firearm unconnected with service in a militia").
181. U.S. CONST. amend. II.
182. Heller, 128 S. Ct. at 2789.
183. Scholars have argued that Justice Scalia noted this separation simply to reach his desired conclusion and that such a division is not supported by the syntax, legislative history, or the historical context of the amendment.
184. See, e.g., William G. Merkel, The District of Columbia v. Heller and Antonin Scalia's Perverse Sense of Originalism, 13 LEWIS & CLARK L. REV. 349, 365 (2009) (noting that dividing the prefatory clause and the operative clause was "a crucial step for Justice Scalia as it allow[ed] him to uncouple the right to arms from the militia," even though such an argument is in conflict with the "syntax, the debates in the first Congress, and [the] historical context").
185. see also Brief for Professors of Linguistics and English Dennis E. Baron et al. in Support of Petitioners at 5-14, Heller, 128 S. Ct. 2783 (No. 07-290) (discussing how the structure of the Second Amendment makes the so-called prefatory clause an essential component of the meaning of the operative clause).
186. See Heller, 128 S. Ct. at 2789 ("Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individualrights provisions of state constitutions, commonly included a prefatory statement of purpose.").
187. Id. at 2789 n.3 (citing 2A NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 47.04 (5th ed. 1992) (citing Copeman v. Gallant, [1716] 24 Eng. Rep. 404 (Ch.))).
188. (beginning his analysis by looking at the dictionary definitions of "arms").
189. 1 TIMOTHY CUNNIGHAM, A NEW AND COMPLETE LAW DICTIONARY (London 1771).
190. NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (New York, S. Converse 1828).
191. (criticizing the Smith majority's use of the dictionary to define "use" in a manner inconsistent with its plain meaning within the statutory context).
192. See Heller, 128 S. Ct. at 2791-92 (explaining Justice Scalia's interpretation of the amendment's language).
193. And ironically, the strongest piece of contextual evidence is exactly that which Justice Scalia quickly dismissed: the prefatory clause.
194. Smith v. United States, 508 U.S. 223, 242 (1993). Indeed, Justice Stevens's dissent uses this specific quote to criticize Justice Scalia's acontextual construction of the Second Amendment.
195. Heller, 128 S. Ct. at 2829-30 n.11 (Stevens, J., dissenting).
196. The issue in Heller is a bit more complicated than the controversy in Smith, because the phrase "keep and bear Arms" is both more complex than a word such as "use," and because it is found in a much older document.
197. And indeed, it may be that Justice Scalia's interpretation of the language is correct-the majority does provide other contextual arguments from the founding era. The dictionary, however, simply cannot be used to say that the Second Amendment must provide an individual right.
198. All it can be used to show is that it could provide such a right, depending on the context.
199. Heller, 128 S. Ct. at 2791.
200. And this gap in time can matter.
201. See MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 228 (1994) (noting that when the Communications Act became law in 1934, Webster's Third "was not yet even contemplated," even though Webster's Third was published in 1976 and thus probably contains research from the decades before that time).
202. In his dissent, Justice Stevens cites THE OXFORD ENGLISH DICTIONARY 634 (2d ed. 1989) to provide a definition for "bear arms," Heller, 128 S. Ct. at 2828 (Stevens, J., dissenting), which was created at a time far later than the relevant period.
203. (providing, for example, that "[t]o arms" denotes "taking arms for war or hostility; particularly a summoning to war"). Interestingly, Webster also provides another definition of "arms," stating that, "[i]n law, arms are any thing which a man takes in his hand in anger, to strike or assault another." Id.
204. (quoting JOHN TRUSLER, THE DISTINCTION BETWEEN WORDS ESTEEMED SYNONYMOUS IN THE ENGLISH LANGUAGE 37 (London, 3d ed. 1794)).
205. E.g., id. at 2792 n.7 (majority opinion).
206. That said, considerable evidence suggests that the general use of "bear arms" contemporary to the Second Amendment was overwhelmingly related to military service.
207. It is not correct that the responsibility for making counterarguments lies with the other side. A strong supporting argument in favor of contradictory evidence is not necessary, but the simple acknowledgment that such evidence exists is. It is inaccurate to say that the evidence clearly supports one meaning while evidence exists suggesting otherwise.
208. In fact, the brief's entire first argument focuses on how the structure of the Second Amendment affects the meaning of the words within it. See id. at 5-14 (arguing that the "absolute construction" of the prefatory clause causes it to function as a sentence modifier).
209. See id. (utilizing structural comparison and multiple sources of meaning to assess the plain meaning of the Second Amendment).
210. See id. at 23-24 (examining usage in "books, pamphlets, broadsides, and newspapers from the period between the Declaration of Independence and the adoption of the Second Amendment").
211. One could attack the linguistics professors, whose brief supported the petitioners, for their own biases. But a proper argument would instead be directed to the validity of their findings.
212. Further, this Section does not intend to imply that scientific linguistic analysis should automatically merit total deference. The point is that the Court had the benefit of this information, which is conceptually truer to textualist aims than dictionaries can hope to be, and engaged with it only minimally.