A Monthly Column for Word Lovers
Help for Harried Justices
Though it may have gone unnoticed by you, there is a specter haunting the American court system, and that specter is the dictionary. In many respects, judges are like ordinary people in that they need to consult a dictionary from time to time in order to get a fix on what a word means. Unlike ordinary people, judges have great influence far beyond the sphere of people they talk to, and when judges cite dictionaries, especially as a way of underpinning or justifying a particular decision, the dictionary is suddenly elevated to a position of influence that it did not previously enjoy. The ways in which judges do this is increasingly the focus of scholarship, criticism, and controversy.
A 2010 article in the Duke Law Journal by Phillip A. Rubin examines the use of dictionaries by courts and argues that, without a principled approach to the use of dictionaries in courtrooms, judges leave themselves “open to criticism for, at best, using dictionaries incorrectly—and, at worst, using them to reach their preferred outcomes.” Rubin spends some time talking about the opinion and the dissenting opinions in District of Columbia v. Heller, a landmark 2008 case that invalidated strict gun control laws in Washington DC. He notes:
The dispute in Heller typifies the problem . . . . The dictionary was used by both sides in the same way that Justice Scalia argues that legislative history can be incorrectly used in judicial interpretation: as an external, nonauthoritative source used to pick out a supporting argument while ignoring any contradictory information in that same source.
Three years later, in a lengthy paper in the William & Mary Law Review, James J. Brudney and Lawrence Baum make essentially the same argument, focusing on the ever-increasing use of dictionary definitions in US Supreme Court decisions, critiquing it in great detail, and concluding that “the Justices need to acknowledge that they are operating with virtually unbridled discretion in the dictionary domain.”
The muddle that courts, and especially the Supreme Court, seem to be falling into is this: different textual sources must necessarily have different weights when justices consider their bearing on a case at hand.
The Constitution has a meaning, motivated by the intentions of the framers. Legislative history has a meaning, again motivated by the intentions of the legislature that promulgated antecedent legislation. And words have meanings, as recorded in dictionary definitions. But definitions and dictionaries do not have particular intentions, other than to record the prevailing understanding of words at a particular time—the “ordinary meaning,” as Justices like to call it.
It is a great challenge to try to tease apart the intentions of framers of the constitution, when they are so far removed from us in time and their textual legacy is ambiguous. It is surely a greater challenge to attempt to pin down exactly what the framers meant by the use of particular words when they wrote, and the role that dictionaries might play in this process will ultimately be dubious at best.
The very notion that it is the job of courts to get into the minds of the founding fathers is an artifact of originalism, the belief that the Constitution should be interpreted in the way its authors originally intended it. And it may well be that this streak of originalism in the Court, which was championed by the late Justice Antonin Scalia, underlies the great expansion in the use of dictionary citations by the Supreme Court.
Lending some support to this view is the fact that judicial dictionary citation seems to be a mainly American phenomenon. American linguist and blogger Lynne Murphy, who lives in the UK, explored the topic a bit in a blog post a couple of years ago, where she notes that US Supreme Court opinions cite dictionary definitions in exponentially larger numbers than UK Supreme Court decisions do. In her forthcoming book about differences between British and American English, she writes:
In the first ten years of this century, the US Supreme court cited 295 dictionary definitions in 225 of its opinions. In seven years of UK Supreme Court decisions, I could find only seventeen that mentioned specific dictionary definitions—though the UK and US Supreme Courts hear similar numbers of cases per year. Legal scholars and lexicographers are concerned about American courts’ willingness to employ dictionary definitions in interpreting laws, patents, and contracts. Dictionaries differ. Justices might cherry-pick definitions, using a dictionary that suits their biases, then [present] it as “objective” evidence. But in spite of those repeated objections, the Supreme Court’s use of dictionaries has increased about tenfold since the 1960s.
A group of scholars is now trying to assemble a new tool for the aid of dictionary-habituated justices that, if used correctly, will take them one step beyond the digested dictionary definition and put them in the lexicographer’s seat. The new tool is a corpus (collection of natural language) to be called COFEA (Corpus of Founding Era American English). COFEA will contain at least 100 million words of text written between 1760 and 1799, taken from a variety of sources.The use of corpora by judges and justices is not new. The Supreme Court, the federal court system, and at least one state Supreme Court, have already taken advantage of corpus linguistics to determine the ordinary meaning of a word, taking advantage of publicly available corpora that VT subscribers have probably seen mentioned in various contexts over the years: COCA (Corpus of Contemporary American English) and COHA (Corpus of Historical American English) have both been consulted and cited by courts.
It is the hope that consultation of founding-era corpus data (instead of, or in addition to dictionary definitions) will introduce an imprimatur of authority that has been somewhat eroded by the fast and loose use of dictionary definitions that seems to have crept up on US courts. Will that happen? It is too early now to tell, but scholars are cautiously optimistic, and have already set out what they hope will be usable guidelines for corpus consultation in online legal forums, here and here. At the very least, the use of corpora in the courtroom should have the desirable effect of removing the accusation that judges and justices picked and chose among the range of dictionary definitions available to them. Everyone, from the Chief Justice to the person on the street, can study the examples of usage in a historical corpus and decide what reasonable conclusions about meaning can be drawn from it.