Ordinary Meaning

A Theory of the Most Fundamental Principle of Legal Interpretation

Brian G. Slocum

• Publisher: University of Chicago Press
• Year: 2015
• Print ISBN: 9780226304854
• eBook ISBN: 9780226304991
• Topic: Law
• Subtopic: Linguistics
• Index: Law

Consider this court case: a defendant has traded a gun for drugs, and there is a criminal sentencing provision that stipulates an enhanced punishment if the defendant "uses" a firearm "during and in relation to a drug trafficking crime." Buying the drugs was obviously a crime—but can it be said that the defendant actually "used" the gun during the crime? This sort of question is at the heart of legal interpretation.
 
Legal interpretation is built around one key question: by what standard should legal texts be interpreted? The traditional doctrine is that words should be given their "ordinary meaning": words in legal texts should be interpreted in light of accepted standards of communication. Yet often, courts fail to properly consider context, refer to unsuitable dictionary definitions, or otherwise misconceive how the ordinary meaning of words should be determined. In this book, Brian Slocum builds his argument for a new method of interpretation by asking glaring, yet largely ignored, questions. What makes one particular meaning the "ordinary" one, and how exactly do courts conceptualize the elements of ordinary meaning? Ordinary Meaning provides a much-needed, revised framework, boldly instructing those involved with the law in how the components of ordinary meaning should properly be identified and developed in our modern legal system.

CHAPTER ONE

The Ordinary Meaning Doctrine

1.1: The Ordinary Meaning Doctrine and Its Justification

By what standard should legal texts be interpreted? The cases requiring a precise answer to this question are seemingly endless. Consider a criminal sentencing provision that provides for an enhanced punishment if the defendant “uses” a firearm “during and in relation to . . . .a] drug trafficking crime.” Has the defendant violated the provision if he trades a gun for drugs, or drugs for a gun, during a drug trafficking crime?1 Alternatively, consider a statute that authorizes the Secretary of the Interior to take land and hold it in trust “for the purpose of providing land for Indians,” where the term “Indian” is defined as “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction” (emphasis added). If, decades after the enactment of the statute, the secretary takes land in trust for a recognized Indian tribe that was not yet recognized at the time of the enactment of the statute, does the statute nonetheless authorize the secretary’s action?2 Consider a different case involving a statute protecting the federal government from liability. Do federal prison officials fall under the phrase “any officer of customs or excise or any other law enforcement officer” (emphasis added)?3 To take an extremely accessible example, consider a statute providing for tariffs that distinguishes between vegetables and fruit. Should a tomato, designated by botanists as a fruit, nonetheless be considered a vegetable?4 Speaking of food and meaning, in a contract that makes the term “sandwich” legally decisive, should a burrito be considered a sandwich, or is it something different?5

In each of the above examples, the court considered the answer to the interpretive question to be one determined by general principles of language usage that apply equally outside the law. Such cases are not exceptional but rather are illustrative of the judicial commitment to interpreting language in legal texts according to its “ordinary meaning.” For instance, in its (in)famous decision, District of Columbia v. Heller,6 which determined whether the Second Amendment to the United States Constitution confers an individual right to keep and bear arms, the US Supreme Court stated that

In interpreting this text, we are guided by the principle that “the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.7

Similarly, in a recent but less politically contentious case, Taniguchi v. Kan Pacific Saipan, Ltd.,8 the Supreme Court had to determine whether a statute providing for the “compensation of interpreters” included within its scope the cost of translating from Japanese to English certain documents that the defendant had used in its defense of a personal injury lawsuit.9 Indicating that a legislatively undefined term should be given “its ordinary meaning,” the Court viewed a meaning of “interpreter” that would include document translation as unordinary, but perhaps occasionally used and “acceptable.”10 The Court, determining on the basis of a “survey” of multiple dictionary definitions that “interpreter” can, but does not ordinarily, include one who translates written documents, reasoned that just because a “dictionary definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense” (emphasis in original).11

As the above cases illustrate, courts have agreed that words in legal texts should be interpreted in light of accepted and typical standards of communication (Jackson 1995; Phillips 2003). In fact, Dickerson (1975, 10) argues that the constitutional presumption is that a “statute is subject to the accepted standards of communication in effect in the given environment.” The constituent question of what makes some meaning the ordinary one and the evidential question of how the determinants of the ordinary meaning of legal texts are identified are thus of crucial importance to the interpretation of legal texts. Yet, beyond very general characterizations or assumptions that the answers are self-evident, or examinations of relatively narrow questions regarding ordinary meaning, neither the constituent nor the evidential question has been comprehensively examined by courts or commentators. For instance, Justice Scalia, a supporter of the ordinary meaning doctrine, wondered in a dissenting opinion whether

the acid test of whether a word can reasonably bear a particular meaning is whether you could use the word in that sense at a cocktail party without having people look at you funny. The Court’s assigned meaning would surely fail that test, even late in the evening.12

Not surprisingly, the Court in its majority opinion indicated that it did not “consider usage at a cocktail party a very sound general criterion of statutory meaning.”13 Elsewhere, in a concurring opinion that argued for a restricted meaning for “tangible object” in the statutory phrase “any record, document, or tangible object,” Justice Alito wondered, “who wouldn’t raise an eyebrow if a neighbor, when asked to identify something similar to a ‘record’ or ‘document,’ said ‘crocodile’?”14 Despite the seemingly idiosyncratic standards for meaning described by Justices Scalia and Alito, this book will explain how dictionary definitions, frequently considered by courts to be an authoritative source of ordinary meaning, are often used in ways that make them less legitimate than a “cocktail party” or “neighbor” standard.

Notwithstanding the lack of development of the ordinary meaning doctrine, it should not be surprising that courts typically seek to determine the ordinary meaning of legal texts when deciding cases. A characteristic feature of legal texts is that they employ natural language in order to accomplish their purposes (Mattila 2002). Further, legal texts are widely viewed as a form of communication (McCubbins and Rodriguez 2011; Van Schooten 2007). If one assumes that successful communication is the goal in most cases, then these texts should be understood by different people in the same way. One aspect of this broad requirement is that legal texts should be understandable to the general public, as well as to judges and sophisticated practitioners. As Cappelen (2007, 19) explains, “[w]hen we articulate rules, directives, laws and other action-guiding instructions, we assume that people, variously situated, can grasp that content in the same way.” Such a goal requires that absent some reason for deviation, such as words with technical or special legal meanings, the language used in legal texts should be viewed as corresponding with that used in nonlegal communications (Mellinkoff 1963).

An assumption that language in legal texts can have an ordinary meaning does not entail, as some commentators have claimed, the false proposition that all readers of the language will always understand the words to mean what the author intended or will all agree on a single meaning. Readers may, of course, disagree about the meaning of a text regardless of the applicable standard of meaning. Instead of such an unrealistic expectation, the ordinary meaning doctrine stands for the proposition that the standard for determining the meaning of a legal text will be an objective one that is external to the author’s intentions (although it may often correspond with those intentions).15 As the famous Supreme Court Justice Oliver Wendell Holmes (1899, 417–18) explained, the interpreter’s role is not to ask what the author meant to convey but instead determine “what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.” As an objective standard, the ordinary meaning doctrine is similar to other legal principles. For instance, Justice Holmes (1899, 418) viewed the normal speaker of English as a variety of the “prudent man” (another legal construction) and explained that reference to this speaker is “simply another instance of the externality of law.”

Consistent with Holmes’s views, that language in legal texts should be interpreted in accordance with its ordinary meaning is a uniformly accepted presumption among judges. In fact, it is perhaps the most widely cited axiom of legal interpretation. Scalia and Garner (2012, 6) refer to the ordinary meaning doctrine as “the most fundamental semantic rule of interpretation.” Its use is both long-standing and widespread.16 According to some, the Supreme Court has in recent years placed an increased emphasis on the meaning of the text in both statutory and constitutional cases, thereby increasing the doctrinal significance of the ordinary meaning doctrine (Scalia and Manning 2012). The ordinary meaning doctrine’s influence is not limited to statutory and constitutional cases, but rather is applied by judges when interpreting virtually every type of legal text, including contracts, trusts, wills, and even jury instructions.17 The typical sequential process of statutory interpretation illustrates its importance as the presumptive meaning of the relevant text. Courts first apply “general principles of statutory construction to the language of the statute in order to construe any ambiguous language to accurately reflect the intent of the legislature.”18 If the language is not ambiguous, however, “there is no room for further construction” and, with some exceptions, is given its “ordinary and obvious meaning.”19 The sequence is standard, if not always followed. In a recent case, for instance, the Supreme Court indicated that it was “depart[ing] from a normal order of discussion, namely an order that first considers [the party’s] statutory language argument[,]” in order to first consider the purpose and legislative history of the statute at issue.20

1.2: Doubting the Decisiveness of the Ordinary Meaning Doctrine

Before significant time is spent conceptualizing the ordinary meaning doctrine, it is appropriate to consider arguments that the doctrine is not, and should not be, influential. As discussed below, notwithstanding the frequent judicial invocations of ordinary meaning, given the nature of judicial decision making and the importance of nonlanguage legal concerns in any given case, as well as the difficult and specialized language and structure of legal texts, it may seem odd that the ordinary meaning doctrine should (at least ostensibly) be so influential. Some scholars have argued that even if legal texts are a form of communication, it does not follow that the communicative content of a legal text (i.e., the linguistic meaning communicated by the text considering all the sources of meaning relevant to the message the author was trying to convey) represents its legal meaning, which is the authoritative meaning given to the text by a judge.21 As explained in more detail in chapter 3, the communicative meaning of a legal text is sometimes different than the ordinary meaning of the language in the text. At this point, a sufficient understanding of the distinction is that the ordinary meaning of the language must be based on a narrower consideration of context (and thus fewer determinants of meaning) than the communicative meaning of the text. If the communicative meaning of the text is not decisive, the ordinary meaning will similarly not be decisive.22

Greenberg (2011, 2010) rejects what he terms the communicative content theory of law, which maintains that as a linguistic text the content of a legal text is an instance of linguistic meaning generally, and interpretation should thus focus on valid theories of language and communication. Specifically, Greenberg argues that viewing legislation on a communicative content model is misguided because legislation and legislative systems have purposes that have no parallel in general, nonlegal communication. In his view, a statute’s contribution to the content of the law should not necessarily be constituted by what is communicated by the legislature. Flanagan (2010) similarly argues that literal meaning (by which he means something analogous to ordinary meaning) cannot be decisive of what is a legally correct outcome and that it follows that an enactment’s literal meaning does not weigh in the determination of correct legal outcomes.23

As noted above, Greenberg and Flanagan, as well as other scholars, offer arguments as to why the communicative content of a legal text is not necessarily its legal content. The judiciary, though, through the ordinary meaning concept and otherwise, sometimes makes statements that suggest that the contrary is true. For instance, Justice Frankfurter (1947, 538) once said, “Only a day or two ago—when counsel talked of the intention of a legislature, I was indiscreet enough to say I don’t care what their intention was. I only want to know what the words mean.” As well, the Supreme Court consistently proclaims—as do lower federal courts and most, if not all, state courts—that it will it “enforce plain and unambiguous statutory language according to its terms.”24 These quotes, as well as other statements that have been made regarding ordinary meaning, do not, however, offer a complete picture of judicial decision making because they misleadingly imply that textual meaning, if clear, is always determinative of legal meaning.

In many circumstances, the communicative content of a text cannot represent its legal meaning. As the Supreme Court quote above indicated, courts purport to enforce plain and unambiguous statutory language according to its terms. Much statutory language (as well as language in other legal texts), however, is not plain and unambiguous. Instead, it may be ambiguous, vague, or otherwise underdetermined. Sometimes the distinction between ambiguity and vagueness is important in legal interpretation, even though courts typically do not properly distinguish between the two concepts. If a statute is ambiguous, a court may resolve the ambiguity through some judicially created interpretive principle. For example, the rule of lenity provides that ambiguities in criminal statutes should be construed in favor of the defendant (Price 2004). If a statute is vague, a court may attempt to precisify (i.e., make more determinate) the text in some manner or, if the statute is a criminal one, it may (but only rarely) strike down the relevant provision on void-for-vagueness grounds (Goldsmith 2003). In these situations, the communicative meaning of the text will differ from its legal meaning.

Even in situations not involving ambiguity or vagueness, the communicative meaning of a text may differ from its legal meaning. One view is that a particular case will always contain some circumstance not covered by the enactment, where that omission alone cannot determine the circumstance’s relevance to whether the relevant interest should prevail (Flanagan 2010). The text alone is never decisive because the circumstance, not contemplated by the enactment’s ordinary meaning, may be controlling. Even when putting aside a judge’s ideological motivations, which may cause the court to distort or ignore a text’s communicative content in favor of the judge’s preferred interpretation, circumstances outside the communicative meaning of a text may therefore always control the outcome of a case. For instance, most, if not all, judges agree that if applying the communicative meaning of a text would cause absurd results, some other meaning should control.25 Also, some judges believe that if the purpose of the enactment is at odds with its ordinary or communicative meaning, a meaning consistent with the purpose should control.26 Many other principles inconsistent with the decisiveness of a text’s communicative meaning are also applied by judges. So-called clear statement rules of interpretation are one prominent example. Clear statement rules often create “implied limitation[s] on otherwise unambiguous general terms of the statute.”27 Thus, for example, pursuant to the presumption against retroactivity, a statute that is full of broad terms but is silent with respect to retroactive application is construed to be unambiguously prospective in effect (Slocum 2010).

As the above discussion illustrates, a provision’s legal meaning will often deviate from its ordinary meaning. In fact, it is well accepted amongst scholars that the legal meaning of a text may depend on interpretive principles and judgments that are based on legal rather than linguistic concerns. Some scholars have developed ontologies to explicate the distinctions typically involved when a court makes use of a legal text. Tiersma (1995) argues that the circumstances explained in the preceding paragraph require that a distinction be made between “interpretation,” which represents the linguistic or philosophical understanding of the provision at issue, and “construction,” which represents instances where judges choose meanings that transcend interpretations. In addition, scholars like Marmor (2005) make other terminological distinctions, such as distinguishing between “meaning,” which refers to the rules of the pertinent language, and “interpretation,” which is usually required because the interpretive issue is not determined by rules or conventions. While the careful distinctions described above are useful for some purposes, this book will focus on other terms that better explicate the concepts being compared and contrasted. Thus, “interpretation” will be used broadly to cover all situations where a court gives an authoritative meaning to a text (Soames 2011). As explicated later, distinctions will instead be made between the ordinary linguistic meaning of a text and other concepts, such as unordinary meaning, communicative meaning, legal meaning, and ordinary legal meaning.

It may be that the communicative meaning of a text is never by itself decisive of legal meaning, but such a reality does not undermine the significance of the ordinary meaning doctrine. In determining the legal content of a text it must still be acknowledged that the communicative meaning (and thus ordinary meaning) is influential in that determination. Even critics who question the decisiveness of ordinary meaning concede the doctrine’s influence. Flanagan (2010, 258), for example, “offer[s] no objection to the idea that enactments’ literal meaning is of great assistance in determining their...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• CHAPTER 1. The Ordinary Meaning Doctrine
• CHAPTER 2. Hypothetical Intentionalism and Communicative Content
• CHAPTER 3. The Constitutive and Evidential Aspects of Ordinary Meaning
• CHAPTER 4. Ordinary Meaning, “What Is Said,” and “What Is Communicated”
• CHAPTER 5. Ordinary Meaning and Lexical Semantics
• CHAPTER 6. Conclusion
• Appendix A. Synonyms for Ordinary Meaning
• Appendix B. Supreme Court Cases Using Ordinary Meaning
• Appendix C. Cases since 1986 Where the Supreme Court Used “Literal Meaning” as a Synonym for Ordinary Meaning
• Appendix D. Recent Supreme Court Cases Regarding Ordinary Meaning with Dissenting Opinions
• Notes
• References
• Index