The Supreme Court is using dictionaries to interpret the Constitution. Both conservative justices, who believe the Constitution means today exactly what the Framers meant in the 18th century, and liberal ones, who see the Constitution as a living, breathing document changing with the times, are turning to dictionaries more than ever to interpret our laws: a new report shows that the justices have looked up almost 300 words or phrases in the past decade. According to the New York Times, last week alone Chief Justice Roberts consulted five dictionaries.
Even though judicial dictionary look-ups are on the rise, the Court has never commented on how or why dictionary definitions play a role in Constitutional decisions. That’s further complicated by the fact that dictionaries aren’t designed to be legal authorities, or even authorities on language, though many people, including the justices of the Supreme Court, think of them that way. What dictionaries are, instead, are records of how some speakers and writers have used words. Dictionaries don’t include all the words there are, and except for an occasional usage note, they don’t tell us what to do with the words they do record. Although we often say, “The dictionary says…,” there are many dictionaries, and they don’t always agree.
Noah Webster’s An American Dictionary of the English Language (1828). Dictionaries are not really the authorities we expect them to be. Perhaps they should come with consumer warnings: Your vocabulary, like your mileage, may vary.
As for the justices, they aren’t just looking up technical terms like battery, lien, and prima facie, words which any lawyer should know by heart. They’re also checking ordinary words like also, if, now, and even ambiguous. One of the words Chief Justice Roberts looked up last week in a patent case was of. These are words whose meanings even the average person might consider beyond dispute.
Sometimes dictionary definitions inform landmark decisions. In Washington, DC, v. Heller (2008), the case in which the high Court decided the meaning of the Second Amendment right to keep and bear arms, both Justice Scalia and Justice Stevens checked the dictionary definition of arms. Along with the dictionaries of Samuel Johnson and Noah Webster, Justice Scalia cited Timothy Cunningham’s New and Complete Law Dictionary (1771), where arms is defined as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another” (variations on this definition occur in English legal texts going back to the 16th century). And Justice Stevens cited both Samuel Johnson’s definition of arms as “weapons of offence, or armour of defence” (1755) and John Trusler’s “by arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, &c.” (1794).
John Trusler defines arms as “those instruments of offence generally made use of in war” in his lexicon, The Distinction Between Words Esteemed Synonymous in the English Language, 37 (1794).
The much less publicized case of Barnhart v. Peabody Coal Co. (2003) turned in part on the meaning of a single word, shall. In this case the justices all agreed that the word shall in one particular section of the federal Coal Act functions as a command. What they disagreed about was just how much latitude the use of shall permits.
In Peabody Coal the Court’s majority decided that sometimes circumstances may excuse the delayed fulfillment by the Social Security Commissioner of what the Coal Act requires: in other words, better late than never. But in his dissent, Justice Thomas insisted that the verb shall allows no wiggle room: a command that is not fulfilled on time cannot be fulfilled at all. Thomas reiterated the legal commonplace that the words in statutes must be understood in their “ordinary and or natural meaning,” and he quoted the American Heritage Dictionary to prove that shall is a “mandatory command”:
[shall aux. v.] (1) a. Something that will take place or exist in the future.... b. Something, such as an order, promise, requirement, or obligation.
Actually, the definition that Thomas cited shows that shall is often not a mandatory command, just an indicator of the future tense. However, the other justices agreed that shall was an imperative in the Coal Act, and the American Heritage definition doesn’t support Thomas’ claim that imperative shall is absolute, so it’s not clear why Thomas bothered to quote the dictionary at all, except to make the point that dictionary definitions routinely guide legal interpretation.
Sometimes the justices can’t find the support they’re looking for in dictionaries, and when a judicial interpretation of a law clashes with the lexical evidence, the justices are quick to reject the authority of the same dictionaries that in other cases they hold up as repositories of wisdom and reason. In Heller, none of the justices thought that the Second Amendment protected a citizen’s right to own a tank or a surface-to-air missile, even though such weapons fit the definition of arms. But they did argue over the meaning of the phrase bear arms, specifically, whether the amendment protects the right to bear arms only in connection with military service. The Court’s conservative majority decided that it did not, that it also guaranteed the right to bear arms for hunting and self-defense.
Dictionaries, however, show that from the 18th century to the present, the phrase bear arms typically appears in military contexts, not ones involving individual self-defense, hunting, or sport. As the historian Garry Wills put it, “One does not bear arms against a rabbit.” But Justice Scalia rejected the dictionary evidence that did not support his understanding of the Second Amendment, writing in his majority opinion, “the fact that the phrase [bear arms] was commonly used in a particular context does not show that it is limited to that context.”
In other cases, when one dictionary doesn’t give the justices what they want, they pick another, looking sometimes to the American Heritage for proof, other times to Webster’s Third, and still other times to the Oxford English Dictionary, in order to make the meaning come out right. To find out what a word might have meant to the Framers, the justices even quote the dictionaries of Noah Webster (1828) or Samuel Johnson (1755). And of course they use Black’s Law Dictionary to elucidate technical terms.
This constant cherry-picking confirms that jurists do recognize dictionaries as fluid and context-bound, much like the words they define. The job of the lexicographer is not to give the law, or even to interpret it. Dictionaries don’t exist to create meaning. Instead, they record the meanings assigned to words and phrases by speakers and writers, by professionals and amateurs, by lawyers and judges, by upright citizens and criminal defendants. These meanings are multiple and changeable, and reliance on dictionaries should always be instructive, never absolute.
Regardless of what the Framers thought or what the Constitution says, the meaning of our laws, like the meaning of the words they’re made of, is always open to interpretation: that’s why we have courts, and many, many lawyers, and it's why there are many dictionaries, not just one. Justice Scalia was right to go beyond the dictionary in Heller because, to paraphrase the slogan of the NRA and its gun aficionados, dictionaries don’t make meanings, people do. But sometimes, it seems, the dictionary helps.
The British comedian Eddie Izzard has said, “The National Rifle Association says that guns don’t kill people, people do. But I think the gun helps.” And when it comes to the law, dictionaries don’t make meaning, people do. But sometimes the dictionary helps.