IN AN OPINION that involved the definition...


IN AN OPINION that involved the definition of a word, Justice Antonin Scalia wrote, "There is little doubt that the ordinary meaning of 'representative' does not include judges, see Webster's Second New International Dictionary 2114."

On page 2114 of that dictionary is this definition: "one who represents a people or community in its legislative or governing capacity."

Lucky for Scalia he didn't look it up in his Funk & Wagnall's. The definition in Funk & Wagnall's New Standard Dictionary of the English Language is: "Polit. A member of a deliberative or legislative body chosen by the vote of the people."

That does take in judges elected to courts ("deliberative. . TC body"), which is what the case in question was all about. I think that "governing capacity" in the definition Scalia cited could probably also be read to include judges, but this is not a column about who was right and who was wrong when the Supreme Court ruled that elected judges are covered by a law that states specifically that it covers elected "representatives." This is a column about how judges should decide what words in statutes mean.

Scalia's way is absurd. I say that even though I am a fan of Merriam Webster, the publisher of the dictionary he cited. The WNID is my favorite dictionary. But not his second edition. That was compiled in 1934. (That was just a year before the Funk & Wagnall's quoted above came out.) This is an out of date dictionary. It was supplanted by the third edition of the WNID in 1961. The second has been out of print for over 31 years. The plates were destroyed. Merriam Webster couldn't print a copy if it wanted to.

For a jurist to rely on so old a dictionary to make a case for the definition of a word in a modern statute is as silly as it would be to use a precedent from a 1934 Supreme Court decision and ignore every other precedent since then.

Language, like law, changes constantly, and judges have an obligation to keep up with both.

Scalia and the court were grappling with the 1982 amendments to the Voting Rights Act. Surely any thinking person in 1991 would look to contemporary dictionaries to decide what a key word meant.

As it happens, the definition of "representative" in the third edition of the WNID is little changed from the second. Scalia would have been as well served to cite it.

He would have been better served to cite the most recent unabridged American dictionary. That is the excellent second edition of the Random House Dictionary of the English Language. It came out in 1987. It says a representative is "a person who represents a constituency or community in a legislative body."

Conservative jurists have revived the doctrine of reading what the plain language of a law says rather than what the people who wrote it may have meant. That's a good idea. But using 57-year-old dictionaries to do that is not conservative, it's reactionary -- see Webster's Third New International Dictionary 1889.

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