Cause you know sometimes words have two meanings…
— from “Stairway to Heaven” by Led Zeppelin
Polysemy means that a word can, as Led Zeppelin sang, “have two meanings”. In relation to the law, federal judge Frank Easterbrook said it less melodically, “[W]ords do not possess intrinsic meanings and cannot be given them; to make matters worse, speakers do not have determinative intents about the meanings of their own words.”
Lawyers are trained that if a word is not expressly defined in a statute, we look for the ‘plain’ or ‘ordinary’ meanings of the word. The ‘plain’ meaning is supposed to be that found in a dictionary, while ‘ordinary’ is how the word is used in everyday speech. But judges use the terms interchangeably.
Easterbrook suggests, ‘ordinary’ meaning would be subjective to the speaker, so it would seem the ‘plain’ dictionary definition would be preferable. But no.
If you rely on a dictionary definition, the question becomes “which dictionary?” The late United States Supreme Court Justice Antonin Scalia once identified varying dictionary definitions of the word “modify”, in a case before the Court in which the meaning of that word was the deciding factor.
Earlier this month the Supreme Court was called upon to interpret the meaning of the phrase “punishable by death” in a federal statute to decide a case — even though the defendants were not facing the death penalty. The Court cited various dictionary meanings of “punishable” and found those definitions “shed little light on the dispute”.
In other words, when it comes to a federal statute, the dictionary definitions of the statutory language have limited value.
Okay…so then, what is the “ordinary” meaning? It gets more complicated trying to determine the meaning of a word in a document created by a group, such as a legislative body. All the members may not have intended the same meaning of the words enacted in a law.
In The Legislative Process, Statutory Interpretation and Administrative Agencies, Mercer University Law Professor Linda Jellum meticulously details how trying to determine what the drafters of legal language meant from how the words were used at the time of the drafting is often futile. So it isn’t surprising that so many federal statutes are nearly impossible to decipher – even for lawyers.
Take for instance this masterpiece of discombobulation:
Whoever engages in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of chapter 2, 10, 11B, 39, 40, 44, 111, or 113B of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), or section 46502, the second sentence of section 46504, section 46505(b)(3) or (c), section 46506 if homicide or attempted homicide is involved, or section 60123(b) of title 49″ 18 U.S. Code § 1038 (False Information and Hoaxes)
The rest of the statute spells out the penalties for violating that statute — up to life in prison.
The Fifth Amendment to the United State Constitution mandates that citizens charged with crimes be afforded “due process of law”. “Due process” requires a criminal statute “give ordinary people fair notice of the conduct it punishes”. Any criminal statute that doesn’t is “void for vagueness”, and thus unconstitutional.
In 2007 a New Jersey federal court said that statute is not “vague” as applied to the defendant in a particular case. Which begs the question: Would it be “vague” in other cases? According to my Websters New 20th Century (Unabridged) Dictionary “vague” means “unsettled, uncertain, undetermined, uncertain, proceeding from no known authority”.
It seems to my “ordinary” mind that a statute which is not “vague” as applied to one defendant, but could be for another is the very “definition” of “vague”. At least according to Webster !
The Florida Supreme Court says I’m an “expert” in criminal law. I have no damn idea what “any conduct” might be that could get me life in a federal prison under that statute.
John Adams said “We are a government of laws, not men!” That is what the words carved in stone on the portico of the Supreme Court — Equal Justice Under Law — declare.
But that is impossible where the words in the law “sometimes have two meanings.”
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.