writing bio research bagatelle home

The Book of Samuels

Geoffrey Nunberg

Longer version of "Fresh Air" commentary,
November 29, 2005

In an age when anxiety about the language is relegated to Sunday supplement features and the perky titles in the language ghetto at the back of the bookstore, it's hard for us to understand why Samuel Johnson's Dictionary of the English Language had such political importance when it was first published 250 years ago.  

The Dictionary appeared at a moment of intense anxiety about the language. Britain had become what Johnson called "a nation of readers," as public opinion, shaped by the press and print literature, was challenging the authority of traditional institutions like the monarchy, the church, and parliament. But how could you count on printed words to determine social values when they seemed to change their meanings from one speaker to another or from one generation to the next? As William Warburton wrote in the preface to his 1747 edition of Shakespeare: "We have neither Grammar nor Dictionary, neither Chart nor Compass, to guide us through this wide sea of Words."

Johnson's wasn't the first English dictionary, but it spoke with an obvious authority that allayed many of those anxieties.
It seemed to capture the elusive and fluttering meanings of words and pin their wings to its pages. "As the weight of truth and reason is irresistible," wrote Robert Nares in 1784, a bit over-optimistically, "its authority has nearly fixed the external form of our language; and from its decisions few appeals have yet been made."

From then on, dictionaries would be largely ceremonial fixtures of public life, honored with inattentive piety. We refer to dictionaries as if there were only one of them. We talk about "the dictionary" the way we talk about "the periodic table," as if it were merely a clear window on the truth of words.  

That's a harmless illusion for people who turn to dictionaries only to get a general idea of the meaning of a word like vilify or plangent. But it's another matter to appeal to a seven-word dictionary definition to sort out the marginal cases and fine shades of meaning that courts often have to resolve -- it's like trying to use an AAA street map to fix lot lines.

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 called 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 to settle disputes 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.

But using a dictionary to determine the meanings of words turns out to be not quite the automatic or neutral procedure that most of us take it to be. Some dictionaries define words more broadly than others. And when a dictionary gives several meanings for a word, judges have a lot of discretion in deciding which of them is most appropriate.

Judicial restraint or no, dictionaries give courts a lot of wiggle room. It's no wonder the Court's debates about the meanings of words can resemble food fights among unruly children, in the words of  Brooklyn Law School professor Laurence Solan.1

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 rule 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."2 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 -- a dictionary that 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 Johnsonian disinterestedness.

Johnson himself approached his project with more humility. He knew that no dictionary could reduce to mechanical certainty "the boundless chaos of a living speech." There's no greater insult to his memory than to pretend now that that's a done deal.

1. Laurence Solan, "Finding Ordinary Meaning in the Dictionary,"  in Giancarlo Lombardi, ed., Language and Law. Wm. S. Heim, 2003. return

2. Ellen P. Aprill, "The Law of the Word: Dictionary Shopping in the Supreme Court," Arizona State Law Journal. Summer, 1998. return

Copyright © 2005 Geoffrey Nunberg All rights reserved.