WHAT PEOPLE think words mean is very important in the world of law. Judge Ruth Bader Ginsburg told an interesting story about that when she testified before the Senate Judiciary Committee last week:
"In the '70s, when I was at Columbia and writing briefs about distinctions based on sex, I had a secretary, and she said, 'I've been typing this word sex, sex, sex, and let me tell you, the audience that you are addressing, the men you are addressing' -- and they were all men in the appellate courts in those days -- 'the first association of that word is not what you're talking about. So I suggest you use a grammar book term; use the word gender. It will ward off distracting associations.' "
Judge Ginsburg believes that a word can mean one thing in one context and another in another. So a judge has to figure out what law-writers meant.
This made me think of Justice Antonin Scalia. He has argued that when a word in a law is in dispute, you just look it up in the dictionary. Stick to the "plain language" of the law, never mind "legislative intent." Recently he had to eat his words, so to speak.
Congress wrote a law saying that if someone was convicted of using a machine gun in a drug case, the sentence had to be 30 years in prison.
Subsequently, a man was convicted of trading his MAC-10 to an undercover law-enforcement officer for cocaine. He got 30 years, on the grounds that this was a use. The Supreme Court upheld the sentence, over Justice Scalia's dissent. He complained that everybody knows "used a machine gun" means "used it as a weapon." That's what was in members of Congress' minds.
Oh, no, said Justice Sandra Day O'Connor, sounding like the Scalia of old. The statute says "used." If Congress meant "as a weapon," the statute should have been written to say "used as a weapon."
Justices O'Connor's and Scalia's weapon of choice in this duel of definitions was Merriam-Webster's New International Dictionary of the English Language, Second Edition.
This is a fine dictionary, but it is 60 years old. Words change their meanings (and new words come into the language) over such a period.
Sometimes, of course, an old dictionary is better than a new one in a judge's chambers, because the judge is trying to determine what a key word meant when a law was passed.
For example, what exactly is a "recess" as in "recess appointment"? That has come up in a current dispute between the Justice Department and Congress.
The department used an 1828 dictionary's definition of recess to argue that that presidents have always been able to make such appointments during very brief suspensions of congressional activity.
But in the "used" and "used as a weapon" debate, the law was written after several post-Webster's Second dictionaries came out.
So why are these two Supreme Court justices equipped with obsolete dictionaries?