(This post takes off from the post about Stephen Mouritsen’s article, so read that one first.)
Having complied with the suggestion above, you will recall that Judge Frank Easterbook—one of textualism’s leading theoreticians—said this:
Finding definitions outside of dictionaries is even more risky, a point that the Justices missed when turning to newspapers and biblical quotations in a vain effort to cabin the meaning of the word “[carry].” See Muscarello v. United States, 524 U.S. 125, 129 (1998). The Justices missed the point that the context of a word depends on the linguistic community of addressees and not the full range of how a word ever has been used. Dictionaries are not better just because their etymology sections now can be researched online! [Emphasis added.]
Easterbrook is big on the idea of “linguistic community” (or, as he also calls it, “interpretive community”). In an online discussion of ambiguity in legal interpretation, he suggests that “[t]he more precise we are in identifying the interpretive community [by which he means “the addressees of a statute”], the more likely we are to agree on how they understand a text, and thus what it means.”
While I don’t doubt that identifying the appropriate interpretive community can make a difference in some cases,it seems to me that Easterbrook makes a mistake in putting all his eggs into the interpretive-community basket. For one thing, he appears to considerably overestimate the relative frequency of such cases. More important, Easterbrook’s view of meaning in general (not just meaning in law) is that what matters—all that matters— is the reader’s understanding, without regard to the author’s intentions. He has said in law-review articles that “the meaning of a text lies in its interpretation by an interpretive community” and “language depends on a community of readers rather than speakers’ intent.” (References are at the end of the post.) But that ignores the fact that the process of understanding an utterance or a text is at least in part an attempt to figure out the speaker/writer’s intent.
I’ll return to this last point in a later post; for now I want to focus on Easterbrook’s hostility to considering evidence of actual usage. His beef with Muscarello isn’t that he thinks the Court used the wrong search strategy, it’s that he thinks the whole enterprise of looking at actual usage is misguided. But that view is what’s misguided, I think, even if you accept Easterbrook’s premises.The way that particular words are used by people presumably reflects the way in which the speakers understand those words. So usage is evidence of interpretation.
And when you look at the evidence it may surprise you. It may even tell you about an interpretive community that you weren’t aware of.
Run this Google search: car carry gun. You will find lots of stuff written by and for people who own guns. Those people talk a lot about carrying guns in cars, which suggests that even if the Court in Muscarello was wrong in thinking that carry ordinarily means convey-by-vehicle, here is an interpretive community that uses it that way.
And not only that, but they use a construction that will probably strike you as odd: car carry, meaning ‘carry in a car.’ As in “Remember that while car carry for those 21+ is now legal for many in Missouri, you still need to know what laws impact that right and responsibility.” (link) (You’ll also find the expressions open carry and concealed carry, the meanings of which I trust you can figure out on your own.)
I have a question for those who criticized Muscarello for looking at actual usage: Would you still have the same criticism if the Court had come up with this data?
“the meaning of a text…”: Frank Easterbrook, Levels of Generality in Constitutional Interpretation: Abstraction and Authority, 59 U. Chi. L. Rev. 349, 359-60 (1992)
“language depends…”: Frank Easterbrook, Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1122 (1998)