Delanceyplace.com 6/24/09 - Dictionaries and Politics

In today's excerpt - dictionaries, meanings, and politics:

"The dictionary's role in settling meanings has always been symbolic more than actual. True, a concise definition can pin down the basic meaning of a concrete word, ... but we don't really expect a dictionary to delineate the finer nuances of more abstract words, particularly the ones that are charged with social or political importance. ...

"For most of its existence, in fact, the Supreme Court rarely referred to dictionaries to determine the meanings of the statutes it was considering. Justices Holmes, Brandeis, and Cardozo didn't once cite a dictionary in all their years on the court. It's only in recent years that the use of dictionaries has become a routine practice. Since 1990, the Court has referred to dictionary definitions in more cases than in the preceding two centuries of its life.

"You can attribute that to the rise of the legal doctrine of textualism. When courts are trying to determine the meaning of a statute or regulation, the doctrine says, they should look only at the plain meanings of the words of the text itself, not the intentions of Congress or the legislative history of the law. And where better to look than in the neutral source that most people turn to when they want to settle a dispute over meaning?

"So it's not surprising that the justice who has referred to dictionaries most often is Antonin Scalia, the most eloquent advocate of textualism, followed by Clarence Thomas - though to judge from Samuel Alito's penchant for citing dictionaries in his decisions, he might give both of them a run for their money. ...

"In one 1993 case, the Supreme Court ruled that a man who traded a rifle for some cocaine could be sentenced under a statute that provided for an increased penalty for someone who uses a firearm to obtain narcotics. Writing for the majority, Justice O'Connor justified the decision by citing one dictionary's definition of use as 'to employ.' To his credit, justice Scalia dissented, following a principle of interpretation that you could paraphrase as 'give me a break, please.' In ordinary usage, he said, using a firearm means using it as a weapon, not as a medium of barter.

"But Scalia himself hasn't been above what the legal scholar Ellen Aprill calls 'dictionary shopping.' Does the word representatives as used in the 1982 Voting Rights Act apply to elected judges in addition to legislators? In a 1991 decision, Scalia said it didn't. He cited the definition of the word in the 1934 Webster's Second International - a dictionary that some language traditionalists regard with the kind of reverence that folk purists have for Bob Dylan's acoustic era. But if he'd wanted to argue the other way, he could have referred to the broader definitions of representative in the more recent Webster's Third or the American Heritage, both of which he has found it convenient to cite on other occasions.

"But the most dramatic recent example of the selective use of dictionaries comes not from a Supreme Court decision but from the memorandum on torture that was written for the Justice Department in 2002 by Assistant Attorney General Jay S. Bybee, who has since been appointed to the Ninth Circuit Court of Appeals. By cherry-picking his dictionaries and senses, Bybee managed to come up with a definition of torture that ruled out any practice that doesn't cause lasting impairment or inflict pain that rises to the level of death or organ damage. By that standard, nothing that happened at Abu Ghraib would count as torture, even if most people would describe it that way. It's a far cry from the plain meaning of the word, but the appeal to a dictionary seems to cloak the definition in disinterestedness.

"Samuel Johnson (who published the first widely-used dictionary in 1755) himself approached his project with more humility. He wrote that no dictionary could reduce to mechanical certainty 'the boundless chaos of a living speech.'"

Geoffrey Nunberg, The Years of Talking Dangerously, Public Affairs, Copyright 2009 by Geoffrey Nunberg, pp. 68-70