The meaning of (legal) meaning
Legal decisions may 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 Merriam-Webster Dictionary of Law, lenity is
a rule requiring that those ambiguities in a criminal statute relating to prohibitions and penalties be resolved in favor of the defendant when to do so would not be contrary to legislative intent.
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", 12/82005.]
[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.]
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.