The meaning of (legal) meaning
Legal decisions often depend on how the specific words of a
statute or contractual provision are interpreted. For example, US
Code §
924(c)(1) says that
... any person who, during and in
relation to any crime of violence or drug trafficking crime
... uses or carries a firearm ... shall... be
sentenced to a term of imprisonment of not less than 5 years
... If the firearm possessed by a
person convicted of a violation of this subsection ...
is a machinegun or a destructive
device, or is equipped with a firearm silencer or firearm
muffler, the person shall be sentenced to a term of
imprisonment of not less than 30 years.
If someone trades a silenced MAC-10 to a drug dealer for cocaine,
does this law mean that he must given a 30-year sentence? In John
Angus Smith v. United States, the U.S. Supreme court held
that it does: "a criminal who trades his firearm for drugs 'uses'
it during and in relation to a drug trafficking offense within the
meaning of §924(c)(1)". In the majority opinion, Justice Sandra
Day O'Connor wrote that
Surely petitioner's treatment of his
MAC-10 can be described as "use" within the every day meaning
of that term. Petitioner "used" his MAC-10 in an attempt to
obtain drugs by offering to trade it for cocaine. Webster's
defines "to use" as "[t]o convert to one's service" or "to
employ." Webster's New International Dictionary of English
Language 2806 (2d ed. 1949). ... Indeed, over 100 years ago we
gave the word "use" the same gloss, indicating that it means "
`to employ' " or " `to derive service from.' " Astor
v. Merritt, 111
U.S. 202, 213 (1884). Petitioner's handling of the
MAC-10 in this case falls squarely within those definitions.
By attempting to trade his MAC-10 for the drugs, he "used" or
"employed" it as an item of barter to obtain cocaine; he
"derived service" from it because it was going to bring him
the very drugs he sought.
Justice Antonin Scalia dissented:
In the search for statutory meaning, we
give nontechnical words and phrases their ordinary meaning.
... To use an instrumentality ordinarily means to use it for
its intended purpose. When someone asks "Do you use a cane?"
he is not inquiring whether you have your grandfather's silver
handled walking stick on display in the hall; he wants to know
whether you walk with a cane. Similarly, to speak of "using a
firearm" is to speak of using it for its distinctive purpose,
i.e., as a weapon. To be sure, "one can use a firearm in a
number of ways," ... including as an article of exchange, just
as one can "use" a cane as a hall decoration--but that is not
the ordinary meaning of "using" the one or the other. The
Court does not appear to grasp the distinction between how a
word can be used and how it ordinarily is used. It would,
indeed, be "both reasonable and normal to say that petitioner
`used' his MAC-10 in his drug trafficking offense by trading
it for cocaine." ... It would also be reasonable and normal to
say that he "used" it to scratch his head. When one wishes to
describe the action of employing the instrument of a firearm
for such unusual purposes, "use" is assuredly a verb one could
select. But that says nothing about whether the ordinary
meaning of the phrase "uses a firearm" embraces such
extraordinary employments. It is unquestionably not reasonable
and normal, I think, to say simply "do not use firearms" when
one means to prohibit selling or scratching with them.
Textualist vs. Purposive Construction
Just as in the broader philosophical debate over the meaning
of meaning, arguments about legal meaning transcend simple
quibbling over the meaning of words and phrases.
Approaches to the interpretation of laws -- what is called statutory
construction -- can broadly be divided into textualist
and purposive. The textualist approach relies
first and foremost on the words of the statute's text, and looks
elsewhere only if the text cannot be interpreted on its own. The purposive
approach starts from the purpose of the statute, and interprets
the text in that context.
This debate is analogous to Strawson's
dichotomy between the "theorists of formal semantics" and
the "theorists of communication-intention". There are also some
key differences: legal textualists have no notion of formal
semantics, and legal purposivists need not commit the
epistemological fallacy of attributing a singular intent to a
legislative body. However, the basic question is similar: is legal
meaning something that legal texts have, or is it something that
law-making bodies do? Is the key interpretive question what the
text of a law means (or meant at the time it was enacted), or what
Congress (or some other body) meant in enacting it?
The best way to get a feeling for this debate is to see how it
plays out in a particular case. I've chosen Moskal
v. United States (1990), a case that focused on the
interpretation of the phrase "falsely made" in U.S.
Code § 2314:
Whoever, with unlawful or fraudulent intent, transports in
interstate or foreign commerce any falsely made,
forged, altered, or counterfeited securities or tax stamps ...
[s]hall be fined under this title or imprisoned not more than
ten years, or both.
The U.S. Department of Justice gives
the following interpretation of this list of terms in its Criminal
Resource Manual:
Although the terms "altered" and
"counterfeited" are reasonably comprehensible, the same is not
true with the terms "falsely made" and "forged"...
...there is general agreement that these
terms comprehend falsity in the execution or making on the
face of the writing rather than falsity of any facts set forth
on the face of the writing. In other words, the document was
actually issued by a person who was without the authority to
so issue or it was issued contrary to his authority to issue.
... "Forged" generally relates to the unauthorized use of the
purported maker's signature while the term "falsely made"
relates to any execution of a document drawn on either an
existing or non-existing entity where there is no authority to
so issue.
J. Moskal Sr. was caught participating in an automobile "title
washing" scheme. Used cars were bought in Pennsylvania, and the
odometer readings on their titles were modified. These altered
titles were used to obtain new titles in Virginia. These were
genuine and validly issued Virginia titles, although they included
falsified odometer readings. Moskal was convicted under USC
§ 2314 of receiving two such titles, and he appealed his
conviction on the grounds that these titles were not in fact
"falsely made". The court of appeals upheld his conviction --
although a different U.S. appeals court, in a different case, had
overturned a similar conviction.
Moskal appealed to the Supreme Court, on the grounds that the
disagreement between two appellate courts means that the statute
is ambiguous, and therefore the legal doctrine of lenity
ought to be invoked. According to the Legal Information Institute, the rule of lenity
is
a principle used in criminal law, also called rule of strict construction, stating that when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant, or to construe the statute against the state.
In upholding Moskal's conviction, Justice Thurgood Marshall wrote
for the majority that
Whether a valid title that contains
fraudulently tendered odometer readings may be a "falsely
made" security for purposes of 2314 presents a conventional
issue of statutory construction, and we must therefore
determine what scope Congress intended 2314 to have.
This is a transparently purposive argument, framed in terms of
Congress' legislative intent. Marshall continues in this purposive
vein:
Moskal, however, suggests a shortcut in
that inquiry. Because it is possible to read the statute as
applying only to forged or counterfeited securities, and
because some courts have so read it, Moskal suggests we should
simply resolve the issue in his favor under the doctrine of
lenity. ...
Marshall then takes a detour to consider how to decide when a law
is ambiguous enough to trigger the doctrine of lenity, and in that
context, comes back to the role of legal purpose in resolving
ambiguity:
In our view, this argument misconstrues
the doctrine. We have repeatedly "emphasized that the
`touchstone' of the rule of lenity `is statutory ambiguity.' "
... Stated at this level of abstraction, of course, the rule
"provides little more than atmospherics, since it leaves open
the crucial question -- almost invariably present -- of how
much ambiguousness constitutes . . . ambiguity." ...
Because the meaning of language is
inherently contextual, we have declined to deem a statute
"ambiguous" for purposes of lenity merely because it was
possible to articulate a construction more narrow than that
urged by the Government. ... Nor have we deemed a division of
judicial authority automatically sufficient to trigger lenity.
... If that were sufficient, one court's unduly narrow reading
of a criminal statute would become binding on all other
courts, including this one. Instead, we have always reserved
lenity for those situations in which a reasonable doubt
persists about a statute's intended scope even after resort to
"the language and structure, legislative history, and
motivating policies" of the statute. ... Examining these
materials, we conclude that 2314 unambiguously applies to
Moskal's conduct.
Marshall adds a textualist claim about the ordinary-language
meaning of "falsely made":
We think that the words of 2314 are broad
enough, on their face, to encompass washed titles containing
fraudulently tendered odometer readings. Such titles are
"falsely made" in the sense that they are made to contain
false, or incorrect, information.
And he bolsters this argument with an (implicit) appeal to the Gricean
maxim of quantity:
Short of construing "falsely made" in
this way, we are at a loss to give any meaning to this phrase
independent of the other terms in 2314, such as "forged" or
"counterfeited." By seeking to exclude from 2314's scope any
security that is "genuine" or valid, Moskal essentially
equates "falsely made" with "forged" or "counterfeited."His
construction therefore violates the established principle that
a court should "give effect, if possible, to every clause and
word of a statute."
Finally, Marshall takes up the legislative purpose of 2314:
Our conclusion that "falsely made"
encompasses genuine documents containing false information is
supported by Congress' purpose in enacting 2314. Inspired by
the proliferation of interstate schemes for passing
counterfeit securities, ... Congress in 1939 added the clause
pertaining to "falsely made, forged, altered or counterfeited
securities" as an amendment to the National Stolen Property
Act. 53 Stat. 1178. ... In United States v. Sheridan, 329 U.S.
379 (1946), we explained that Congress enacted the relevant
clause of 2314 in order to "com[e] to the aid of the states in
detecting and punishing criminals whose offenses are complete
under state law, but who utilize the channels of interstate
commerce to make a successful get-away and thus make the
state's detecting and punitive processes impotent." ...
We think that "title washing" operations
are a perfect example of the "further frauds" that Congress
sought to halt in enacting 2314.
Justice Antonin Scalia (joined by Justices O'Connor and Kennedy)
disagreed
in dissent:
Today's opinion succeeds in its stated
objective of "resolv[ing] a divergence of opinion among the
courts of appeals," ... regarding the application of 18
U.S.C. 2314. It does that, however, in a manner that so
undermines generally applicable principles of statutory
construction that I fear the confusion it produces will far
exceed the confusion it has removed.
First, Scalia rebuts Marshall's ordinary-language construal of
"falsely made":
The Court's decision rests ultimately
upon the proposition that, pursuant to "ordinary meaning," a
"falsely made" document includes a document which is genuinely
what it purports to be, but which contains information that
the maker knows to be false, or even information that the
maker does not know to be false but that someone who causes
him to insert it knows to be false. It seems to me that such a
meaning is quite extraordinary. Surely the adverb preceding
the word "made" naturally refers to the manner of making,
rather than to the nature of the product made. An inexpen-
sively made painting is not the same as an inexpensive
painting. A forged memorandum is "falsely made"; a memorandum
that contains erroneous information is simply "false." One
would not expect general-usage dictionaries to have a separate
entry for "falsely made," but some of them do use precisely
the phrase "to make falsely" to define "forged." See, e. g.,
Webster's New International Dictionary 990 (2d ed. (1945));
Webster's Third New International Dictionary 891 (1961). The
Court seeks to make its interpretation plausible by the
following locution: "Such titles are `falsely made' in the
sense that they are made to contain false, or incorrect,
information."...This sort of word-play can transform virtually
anything into "falsely made." Thus: "The building was falsely
made in the sense that it was made to contain a false
entrance." This is a far cry from "ordinary meaning."
He adds an argument from analogy to another portion of the
statute's text:
That "falsely made" refers to the manner
of making is also evident from the fifth clause of 2314, which
forbids the interstate transportation of "any tool, implement,
or thing used or fitted to be used in falsely making, forging,
altering, or counterfeiting any security or tax stamps." This
obviously refers to the tools of counterfeiting, and not to
the tools of misrepresentation.
Scalia then rebuts Marshall's argument from the Gricean maxim of
quantity, on the grounds that legal language is conventionally
given to redundant iteration:
The Court maintains, however, that giving
"falsely made" what I consider to be its ordinary meaning
would render the term superfluous, offending the principle of
construction that if possible each word should be given some
effect. ... The principle is sound, but ... should not be used
to distort ordinary meaning. Nor should it be applied to the
obvious instances of iteration to which lawyers, alas, are
particularly addicted -- such as "give, grant, bargain, sell
and convey," "aver and affirm," "rest, residue and remainder,"
or "right, title and interest." ... The phrase at issue here,
"falsely made, forged, altered, or counterfeited," is, in one
respect at least, uncontestedly of that sort. As the United
States conceded at oral argument, and as any dictionary will
confirm, "forged" and "counterfeited" mean the same thing. ...
Since iteration is obviously afoot in the relevant passage,
there is no justification for extruding an unnatural meaning
out of "falsely made" simply in order to avoid iteration. The
entire phrase "falsely made, forged, altered, or
counterfeited" is self-evidently not a listing of differing
and precisely calibrated terms, but a collection of near
synonyms which describes the product of the general crime of
forgery.
In a blizzard of quotations and citations, including quotations
from several law dictionaries and commentaries as well as
citations of many court opinions, Scalia then develops the crux of
his argument, which is that "falsely made" is a generally-used and
widely-understood legal term of art, with a specific meaning that
ought to be respected by the court:
I think it plain that "falsely made" had
a well-established common-law meaning at the time the relevant
language of 2314 was enacted -- indeed, that the entire
formulary phrase "falsely made, forged, altered or
counterfeited" had a well-established common-law meaning; and
that that meaning does not support the present conviction.
He warns that if arguments like Marshall's are taken to be
"sufficient to eliminate a common-law meaning long accepted by
virtually all the courts and by apparently all the commentators,
the principle of common-law meaning might as well be frankly
abandoned".
Then Scalia takes up the question of legislative purpose:
The Court's second reason for refusing to
give "falsely made" its common-law meaning is that "Congress'
general purpose in enacting a law may prevail over this rule
of statutory construction." ... That is undoubtedly true in
the sense that an explicitly stated statutory purpose that
contradicts a common-law meaning (and that accords with
another, "ordinary" meaning of the contested term) will
prevail. The Court, however, means something quite different.
What displaces normal principles of construction here,
according to the Court, is "Congress' broad purpose in
enacting 2314 -- namely, to criminalize trafficking in
fraudulent securities that exploits interstate commerce." ...
But that analysis does not rely upon any explicit language,
and is simply question-begging. The whole issue before us here
is how "broad" Congress' purpose in enacting 2314 was. Was it,
as the Court simply announces, "to criminalize trafficking in
fraudulent securities"? Or was it to exclude trafficking in
forged securities? The answer to that question is best sought
by examining the language that Congress used -- here, language
that Congress has used since 1790 to describe not fraud but
forgery...It is perverse to find the answer by assuming it,
and then to impose that answer upon the text.
He quotes from Justice Harlan's opinion in Gilbert
v. United States (1962), that someone who endorses a check
with his own name is not guilty of forgery, even though he lacks
endorsement authority:
"Nor are we impressed with the argument
that `forge' in 495 should be given a broader scope than its
common- law meaning because it is contained in a statute aimed
at protecting the Government against fraud. Other federal
statutes are ample enough to protect the Government against
fraud and false statements. . . .
Scalia argues that
We should have rejected the argument in
precisely those terms today. Instead, the Court adopts a new
principle that can accurately be described as follows: "Where
a term of art has a plain meaning, the Court will divine the
statute's purpose and substitute a meaning more appropriate to
that purpose."
He ends with an appeal to the rule of lenity, quoting (a
different) Justice Marshall:
"Falsely made, forged,
altered or counterfeited" had a plain meaning in 1939, a
meaning recognized by five Circuit courts and approved by this
Court in Gilbert. If the Rule of Lenity means
anything, it means that the Court ought not do what it does
today: use an ill-defined general purpose to override an
unquestionably clear term of art, and (to make matters worse)
give the words a meaning that even one unfamil- iar with the
term of art would not imagine. The temptation to stretch the
law to fit the evil is an ancient one, and it must be
resisted. As Chief Justice Marshall wrote:
"The case must be a
strong one indeed, which would justify a Court in departing
from the plain meaning of words, especially in a penal act, in
search of an intention which the words themselves did not
suggest. To determine that a case is within the intention of a
statute, its language must authorise us to say so. It would be
dangerous, indeed, to carry the principle that a case which is
within the reason or mischief of a statute, is within its
provisions, so far as to punish a crime not enumerated in the
statute, because it is of equal atrocity, or of kindred
character, with those which are enumerated." United States
v. Wiltberger, 5 Wheat. 76, 96 (1820).
Implicature without intent?
I believe that most fair-minded people, whatever their position
on other issues, will agree that Justice Scalia is in the right on
these two issues, at least from a linguistic point of view.
It seems (at least linguistically) wrong to sentence someone to
30 years in prison for using an automatic weapon in committing a
drug crime, on the basis that a government agent persuaded him to
barter a MAC-10 for some cocaine. It seems equally wrong, at least
linguistically, to sentence someone for receiving genuine
automobile titles with false odometer readings, on the basis of a
law prohibiting interstate transport of forged documents. In both
cases, the court's majority opinion seems to fly in the face of
the plain meaning of the statute being applied.
However, if you ask people who agree with these analyses to
explain them, they usually won't get far before they begin to make
(implicit or explicit) reference to intentions. Consider the
MAC-10 traded for drugs. It's certainly clear that you can use a
gun as an item of barter, just as you can use it to scratch your
head, drive a nail or dig a hole in the ground. So why do we feel
that bartering a gun for drugs shouldn't count as using a gun in
the commission of a crime, from the point of view of a mandatory
sentencing law? The most natural arguments will refer to the law's
intent to deter the use of weapons in violent crime, and
specifically to deter the use of machine guns and silencers.
Justice Scalia avoids this line of reasoning by referring to
"ordinary" usage and to what is "reasonable and normal". It
strikes me as difficult to make such an argument in a rigorous way
without at least implicit reference to communicative or
legislative purpose.
In the case of the expression "falsely made", let's grant that
it's a legal term of art and that Scalia is right about its
conventional meaning. But when we try to explain why this is
relevant, it's natural to say something like "the framers of 2314
obviously intended the term falsely made to be
interpreted in its conventional legal sense". In this case, we may
be able to prescribe a set of rules of interpretation that make no
reference to intent, but can we make a rigorous argument -- other
than by appeal to authority -- that these are the correct rules to
apply?
Perhaps this is possible: certainly Justice Scalia has argued for
it, most recently in his review
of Steven Smith's book Law's Quandary:
The portion of Smith's book I least
understand -- or most disagree with -- is the assertion, upon which
a regrettably large portion of the analysis depends, that it
is a "basic ontological proposition that persons, not objects,
have the property of being able to mean." Textual meaning,
Smith says, "must be identified with the semantic intentions
of an author -- and . . . without an at least tacit reference to
an author we would not have a meaningful text at all, but
rather a set of meaningless marks or sounds." Legal meaning
depends on the (semantic) intentions of an author.
Scalia disagrees: for him, meaning has to do with understanding
texts or utterances, not with intending to use them to
communicate:
Smith confuses, it seems to me, the
question whether words convey a concept from one intelligent
mind to another (communication) with the question whether
words produce a concept in the person who reads or hears them
(meaning).
But the key question is not whether words (and sentences and
paragraphs) can be said to have meaning, in some sense,
independent of the process of communication. Most linguists and
philosophers (and ordinary people) who reason about
intention-based notions of "speaker's meaning" start from the
assumption that there is also a well-defined notion of "sentence
meaning". The problem is that that the effective meaning of
symbolic material can rarely be determined without at least some
implicit consideration of intent. Scalia denies this, focusing on
the interpreters rather than the creators of signals, and giving
absolute power to semiotic convention:
If the ringing of an alarm bell has
been established, in a particular building, as the
conventional signal that the building must be evacuated, it
will convey that meaning even if it is activated by a monkey.
But if we see that that the alarm has been activated by a monkey
-- or even if we've experienced a few recent false alarms -- we're
going to be tempted to interpret the alarm differently, whatever
the regulations may literally prescribe.
Scalia also says that group exegesis is less ambiguous than group
authorship, explaining that multiple authors "may intend to attach
various meanings to their composite handiwork", while we can
"ordinarily tell without the slightest difficulty" what the
meaning of that handiwork was to its multiple contemporary
readers:
What is needed for a symbol to convey
meaning is not an intelligent author, but a conventional
understanding on the part of the readers or hearers that
certain signs or certain sounds represent certain concepts. In
the case of legal texts, we do not always know the authors,
and when we do the authors are often numerous and may intend
to attach various meanings to their composite handiwork. But
we know when and where the words were promulgated, and thus we
can ordinarily tell without the slightest difficulty what they
meant to those who read or heard them.
But what is happening when we "tell without the slightest
difficulty what [legal texts] meant to those who read or heard
them"? On most accounts, there is a great deal of unconscious
"theory of mind" reasoning going on behind the scenes. This
argument is made at length in Larry Solan's Georgetown Law Review
article "Private
Language, Public Laws".
In the examples that I've looked at, I've been impressed by
Justice Scalia's skill in applied semantics. I'm convinced by his
arguments about the effective meaning of "use" in Smith and
"falsely made" in Moskal. But can he -- or anyone else -- really
reconstruct these subtle judgments about contextual interpretation
purely in terms of "a conventional understanding on the part of
the readers or hearers that certain signs or certain sounds
represent certain concepts"? I'm not convinced.
[There is a discussion of Justice Scalia's use of reasoning about
intent in his own opinions in this weblog post: "A
result that no sensible person could have intended",
12/8/2005.]
[For another interesting example of linguistic ambiguity as a
problem in drafting and interpreting statutes, see Jill Anderson,
"Just Semantics: The Lost Readings of
the Americans with Disabilities Act", 117 Yale L.J 992
2007-2008.]
Other reading
Lawrence M. Solan, The Language of Judges, The
University of Chicago Press, 1993.
Peter M. Tiersma, Legal Language, The University of
Chicago Press, 1999.
Steven D. Smith, Law's Quandary, Harvard University
Press, 2004.
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