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The Supreme Court's Use of Dictionaries 

​LOOKING IT UP:  The Supreme Court's Use of Dictionaries in Statutory and Constitutional Interpretation
By Kevin Werbach
(c) 1994. All Rights Reserved.

A shorter version of this paper was published as a student Note in the April, 1994 issue of the Harvard Law Review. (c) 1994 Harvard Law Review Association.

Almost fifty years ago, Judge Learned Hand declared that "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary . . . ."[1] Despite this admonition, courts have long used dictionaries to aid their interpretive endeavors. Dictionaries are, after all, reference books that help readers comprehend the meanings and boundaries of words, which is precisely the function judges must often perform. The Supreme Court[2] has referred to dictionaries in more than 600 cases over a period of two centuries.[3] In recent years, however, the Court has come to rely on dictionaries to an unprecedented degree. Despite the current resurgence of interest in statutory interpretation among legal scholars,[4] and the increasingly vocal debate[5] about judicial methodologies, the use of dictionaries as interpretive tools has received little scrutiny.[6]
This Paper argues that the Supreme Court should exercise greater sensitivity in its use of dictionaries. Part I demonstrates the increased prominence of dictionaries in Supreme Court opinions during the last several years. This shift is too substantial to ignore or dismiss as a coincidence; some underlying factors must explain the trend. Part II therefore situates the Court's use of dictionaries within a broader context of changed attitudes toward statutory interpretation and the role of judges. Dictionaries are not ideal tools; they provide a range of definitions that bear an imperfect relationship to context and meaning. The choice of the dictionary as an interpretive tool requires substantive decisions by judges, and introduces the antecedent assumptions of dictionary editors into the legal process. Part III suggests that these and other considerations gravely limit the value of dictionaries to statutory and constitutional interpretation, and that the Court's current unselfconscious attitude towards the reference books greatly exacerbates these problems. The paper concludes in Part IV with suggestions for more rigorous and more appropriate use of dictionaries.

I. The Court's Increasing Reliance on Dictionaries. Dictionaries have been in existence since well before the American Revolution, and have appeared consistently in Supreme Court opinions since the early days of the Republic. The first English dictionary was published in 1552, and Samuel Johnson's celebrated Dictionary of the English Language was first released in 1755.[7] The Supreme Court first referred to one of the reference books in 1785, when it acknowledged an attorney's citation to Johnson's dictionary.[8] Although American lexicography was in its infancy, the Court cited dictionaries a total of twenty-three times prior to the Civil War.[9] Evidently realizing the important role that dictionaries could play in legal interpretation, Noah Webster sought to have his American Dictionary endorsed by the Supreme Court in 1831, but Chief Justice John Marshall rejected the offer.[10]From the mid-nineteenth century through the 1970s, the Court referred to dictionaries in virtually every Term, but rarely more than a handful of times per year.[11] In the quarter century between 1958 and 1983, for example, the Court cited dictionaries 125 times -- an average of five times per Term.[12] Prior to 1980, in fact, the word "dictionary" never appeared more than fifteen times in a single volume of the Supreme Court Reporter.[13]

In recent years, however, the Court's use of dictionaries has increased dramatically. In the six Terms between 1987 and 1992, the Court never cited dictionaries less than fifteen times, with a high point of thirty-two references during the 1992 Term.[14] Dictionary definitions appeared in twenty-eight percent of the 107 Supreme Court cases decided by published opinion in the 1992 Term - a fourteenfold increase over 1981.[15] The trend towards increased dictionary use has been pervasive: the Court has referred to twenty-seven different dictionaries since 1988[16] in a range of cases involving not only statutes, but also constitutional provisions and administrative codes.[17] Although Justice Scalia has been most willing to employ dictionaries,[18] all nine of the Justices on the Court during the 1992 Term have prominently cited dictionaries in recent majority opinions.[19]

The manner in which dictionaries are used has also undergone a shift in recent years. Traditionally, the members of the Court justified the use of dictionaries as a means of refreshing their memory about the meaning of words.[20] If the Court referred to a dictionary, it was often only to provide potential meanings from which the Court would select based on statutory purpose, legislative intent, common sense, or some other contextual arguments.[21] Theorists of statutory interpretation advocated a similar approach: Henry Hart and Albert Sacks, in their seminal 1950s Legal Process materials, explained the use of dictionaries as a "nice" way to identify permissible meanings.[22] By contrast, the Court in recent cases has frequently employed dictionaries as the focal point of the interpretive inquiry, and relegated arguments about policy, history, or structure to a secondary role.[23] Twenty-seven of the thirty-two dictionary references in the 1992 Term were located in majority opinions.[24] In several of those cases, dictionary definitions were the primary determinant of the ultimate outcome.[25]

II. Examining and Explaining the Trend

A. The Rise of Plain Meaning InterpretationThe Court's growing faith in dictionaries is tied to a broader methodological shift toward textualism in statutory interpretation.[26] The dramatic, sustained increase in citations to dictionaries cannot be coincidental, and considerations such as the relative insecurity of some Justices[27] or the greater prevalence of statutory cases before the Court[28] are insufficient to explain the trend. A search for a unitary causative factor to explain the Court's increasing use of dictionaries would be both misguided and futile. The trend is undoubtedly the result of many elements. This realization should not, however, preclude an investigation of certain important factors and their significance. This paper focuses on a connection between the use of dictionaries and broader interpretive methodologies for three primary reasons. First, to the extent that the Court justifies its use of dictionaries, it does so through arguments about modes of interpretation. Second, there exists a broad literature on statutory interpretation, which provides a useful framework in which to situate an analysis of the role and significance of dictionaries. Third, dictionaries provide a unique opening for an internal critique of certain aspects of the Court's interpretive practice.Over the past decade, the Supreme Court has embraced interpretive theories that give greater emphasis to statutory text and less significance to legislative history and other secondary aids.[29] As the composition of the Court changed during the Reagan-Bush years, Justices who trumpeted the importance of constraining judicial activism through formalist interpretive methodologies replaced those who were willing to read statutes expansively to effectuate public policy goals. Plain or ordinary[30] meaning interpretation -- among the most significant manifestations of this "new textualism"[31] -- seeks to identify the import that statutory language would have to a typical lay reader.[32] Proponents of this method argue that secondary sources should only be consulted when the ordinary meaning of a statute cannot be determined or would compel an unreasonable result in a particular case.[33] Advocates of plain meaning, led by Justice Antonin Scalia,[34] ground their methodology in notions of judicial restraint and democratic accountability. In his oft-cited dissent in the 1991 case of Chisom v. Roemer,[35] Justice Scalia forcefully argued for a plain meaning approach, which he deemed the Court's "regular method for interpreting the meaning of language in a statute,"[36] as a bulwark against judicial usurpation of legislative powers. He chastised the majority for its reliance on legislative history:

When we adopt a method that psychoanalyzes Congress rather than reads its laws, when we employ a tinkerer's toolbox, we do great harm. Not only do we reach the wrong result with respect to the statute at hand, but we poison the well of future legislation, depriving legislators of the assurance that ordinary terms, used in an ordinary context, will be given a predictable meaning. Our highest responsibility in the field of statutory construction is to read the laws in a consistent way, giving Congress a sure means by which it may work the people's will.[37]This passage encapsulates the emphasis that Justice Scalia and other "new textualists" place on limiting the creative interpretive role of judges. Advocates on plain meaning argue that essentially standardless inquiries into legislative history permit unelected federal judges to choose evidentiary fragments that suit them. This subjective process, they claim, replaces democratic compromises embodied in the text of statutes with ad hoc judicial constructs.[38]

In recent years, the Court has emphasized plain meaning in most of its cases involving statutory interpretation. A statistical analysis of Supreme Court decisions published in 1990 found a significant but relatively minor shift in the Court's approach.[39] Since then, as new textualist approaches have gained in both sophistication and support, plain meaning and similar approaches have increasingly become the "regular method" of interpretation proclaimed by Justice Scalia in Chisom.[40] Even members of the Court with vastly different outlooks from that of Justice Scalia now employ the plain meaning approach.[41]

Plain meaning interpretation and textualism have been attacked on many levels. Some commentators have rejected the textualist approach as an impossible mechanistic ideal, or as a fiction which can only mask the need for more dynamic, pragmatic methodologies.[42] Others have claimed that the ostensible neutrality of plain meaning interpretation belies a particular set of controversial value choices.[43] Defenders of textualism have responded to these and other attacks with new arguments affirming the integrity of their views.[44] It is not the purpose of this paper to join this lively debate. Even if all the premises of plain meaning are accepted, the Court's reliance on dictionaries raises important issues. By assuming an inherent relationship between textualism and the use of dictionaries, scholars and judges have failed to examine the particular significance of dictionaries as tools of judicial interpretation. Moreover, even when dictionaries may be an appropriate tool for the Court to employ, the Court's selection of particular dictionaries and definitions is subject to question.

B. Plain Meaning and DictionariesAdherents of the plain meaning approach have long assumed that dictionaries are the best source of the common understanding of words.[45] The identification has become so pervasive that many commentators use the terms almost interchangeably.[46] In fact, it is difficult to find a source that explicitly justifies the use of dictionaries to determine plain meaning. The connection seems obvious -- after all, where else would an average lay reader go to determine the meaning of a statutory term but the dictionary? Furthermore, dictionaries have the virtue of appearing neutral, thus gaining greater legitimacy for interpreters concerned about judicial subjectivity.[47]Recent Supreme Court opinions, such as Justice Scalia's Chisom dissent, frequently accept as uncontroversial the underlying proposition that dictionaries reflect the ordinary meaning of terms precisely. After attacking the majority for theorizing about congressional motivations for using the term "representatives" in the Voting Rights Act,[48] Justice Scalia brusquely announced that "[t]here is little doubt that the ordinary meaning of `representatives' does not include judges."[49] His primary support for this assertion was a citation -- without an actual quotation -- to Webster's Second New International Dictionary.[50] Justice Scalia apparently did not feel compelled to justify his reliance on a forty-year-old dictionary, which was first published more than three decades before the passage of the Voting Rights Act -- to ascertain the ordinary meaning of the term.[51] The identification of dictionaries with plain meaning, it seems, was self-evident.[52]
Two cases from last Term demonstrate the various ways the Court is willing to give dictionaries, as sources of ordinary meaning, priority over other interpretive aids. In Smith v. United States,[53] the Court considered whether a defendant who offered to barter a gun for drugs had "used" the gun in the course of the drug purchase under a statutory penalty-enhancement provision.[54] Justice O'Connor, writing for the majority, based her construction of "use" on definitions from two dictionaries.[55] She concluded that the term did include the petitioner's conduct, because in ordinary parlance "use" means "to convert to one's service" or "to employ." Although she conceded that "[l]anguage, of course, cannot be interpreted apart from context,"[56] Justice O'Connor rejected the dissent's arguments that the statute should be read in context to require the use of the gun as a firearm. She explained that even though both interpretations were acceptable, they were not exclusive[57] and did not indicate the way the term was "most reasonably read."[58] Justice O'Connor apparently concluded that her reading of the statute was the most "reasonable" ordinary meaning because it fit the definition in her chosen dictionaries.
Justice O'Connor's emphasis on the possible rather than necessary meanings of statutory terms does reflect the structure of most dictionaries. At bottom, however, dictionaries provide alternative definitions so that the reader can choose among them based on contextual analysis.[59] By asserting that her definition met the criteria of "ordinary meaning" simply because it was among the entries in two dictionaries, Justice O'Connor appears to have ignored this essential step of the analysis. This point was made cogently by none other than Justice Scalia, who despite his usual predisposition towards reliance on dictionaries, dissented in Smith.[60] Claiming that "[t]he Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used,"[61] Justice Scalia criticized the majority for selecting one possible meaning instead of identifying the way the statutory term would most likely be understood in context.[62] The colloquy between the majority and the dissent in Smith explodes the myth that dictionary definitions are necessarily aligned with statutory plain meaning. Nonetheless, a majority of the Court chose to accept Justice O'Connor's dictionary-based analysis over Justice Scalia's commonsense reasoning.

A corollary of ordinary meaning is the recognition that, in certain situations, statutory terms are too vague to have any definite meaning to ordinary readers. All words are subject to multiple interpretations,[63] but grammar and textual context usually provide sufficient clues to identify the meaning most readers are likely to assign to a term. In some cases, however, words are so ambiguous that a reviewing court, looking only at the text, cannot say with certainty which of those interpretations should apply. In such cases, even strict textualists must resort to other kinds of arguments to clarify statutory meaning.[64] Nixon v. United States,[65] also decided last Term, demonstrates the role that dictionaries can play in proving that a word has no determinate plain meaning.[66]

Nixon held that the appropriateness of Senate impeachment trial procedures constituted a nonjusticiable political question.[67] Although the full Senate voted on Judge Nixon's impeachment, a committee was responsible for evidence-gathering and examination of witnesses. Nixon argued that the constitutional mandate that "[T]he Senate shall have the sole Power to try all Impeachments"[68] required all testimony to be taken before the entire Senate.[69] Chief Justice Rehnquist's majority opinion turned almost entirely on definitions of the constitutional terms "try" and "sole."[70] In his analysis of "try," the Chief Justice claimed that, because two eighteenth-century dictionaries and Webster's Third New International Dictionary provide a "variety of definitions,"[71] the Framers of the Constitution could not have intended the term as a limitation on permissible impeachment procedures.[72] In contrast to Smith, in which the Court argued that a seemingly ambiguous term was subject to determinate interpretation,[73] the Nixon Court sought to illustrate the inherent vagueness of a word. Yet in each of these cases, dictionaries were the primary interpretive tools of the majority.

III. Questioning the Court's ApproachThe Court's faith in dictionaries is problematic both from the perspective of statutory interpretation and from the viewpoint of linguistics. In the abstract, the association of dictionaries with ordinary meaning makes sense -- the goal of modern dictionaries is to present as accurately as possible the accepted current usages of words.[74] Yet a number of factors vitiate the relationship of dictionary definitions and ordinary meaning, and the Court has rarely paused to consider the wisdom or the implications of relying on dictionaries in statutory interpretation. Of the opinions that do make explicit arguments about the practice, most are dissents which criticize the majority for its excessive reliance on dictionaries.[75] Even when, as in Smith,[76] the Justices acknowledge the limitations of their interpretive method, the assumption that dictionaries reveal "ordinary meaning" is usually left unquestioned. For some members of the Court, the dictionary has become a sort of default source, presumptively decisive unless there is specific evidence to the contrary.[77] Yet dictionaries are neither as neutral nor as reductive as the Court supposes them to be, and they do not provide the sort of meaning the Court seeks to determine.As noted previously, the Court in recent years has used dictionaries primarily as a vehicle for textualist interpretive methodologies. Thus, it makes sense to assess the degree to which dictionaries actually reflect the ordinary meaning of statutory terms. If dictionaries do not in fact enhance judicial neutrality and fidelity to legislative commands, the Court's rationale for employing them fails on its own terms. However, a critique of dictionaries as interpretive sources need not depend on the assumption that the Court always uses dictionaries to ascertain plain meaning or to minimize judicial activism. Rather, new textualist arguments provide a lens through which to view the use of dictionaries and the interpretive process. This Part therefore examines the extent to which dictionaries serve the purposes the Court has articulated, and then articulates other implications of the use of dictionaries in legal analysis.

A. Imperfect Sources of Ordinary MeaningContrary to the assumptions of the Court and many scholars,[78] dictionaries are not necessarily accurate repositories of the ordinary meaning of statutory terms.[79] Most obviously, dictionaries are secondary sources, exogenous to the statutory text. This fact alone, however, should not disqualify them from use: only the most extreme textualist would suggest that all secondary interpretive aids should be excluded. Rather, textualists generally confine their attacks to legislative history, which they believe to be particularly subject to multiple interpretations and judicial manipulation.[80]A greater problem with dictionary meanings is their fundamental indeterminacy. The language of many judicial opinions to the contrary,[81] it makes no sense to declare a unitary meaning that "the dictionary" assigns to a term.[82] There are a wide variety of dictionaries from which to chose, and all of them usually provide several entries for each word. The selection of a particular dictionary and a particular definition is not obvious, and must be defended on some other grounds of suitability. This fact is particularly troubling for those who seek to use dictionaries to determine ordinary meaning.[83] If multiple definitions are available, which best fits the way an ordinary person would interpret the term? Merely to claim, as Justice O'Connor did in Smith, that a definition provides a possible meaning that a typical reader might assign to the statute does not indicate why the Court should read the statute that way by the Court.[84]
Individual judges must make subjective decisions about which dictionary and which definition to use.[85] The same arguments about manipulability and arbitrariness that are used to attack the examination of legislative history in statutory interpretation can therefore be applied to dictionaries.[86] The fiction that the particular definitions cited by the Court accurately capture statutory meaning is almost as tenuous as the assumption that scraps of legislative history reveal the intent of legislatures.[87] Subjectivity may be an ineradicable component of the interpretive process;[88] the point is that the use of dictionaries cannot eliminate this element, and may even exacerbate it. An opinion based on a dictionary definition must justify not only its chosen meaning for statutory terms, but the choice of a particular dictionary definition to reach that conclusion. More importantly, dictionaries can mask fundamental arbitrariness with the appearance of rationality, making the inherent subjectivity of judicial decisions even more difficult to confront.

The Court's haphazard selection of dictionaries confirms the arbitrariness of its recent practice. A consistent textualist would presumably focus on the way current readers might view a statute, because any characterization of the way readers in an earlier era -- such as the drafters of a statute -- would have construed the provisions involves subjective re-creation by the interpreting judge.[89] Such an approach should favor interpretive tools that reflect the way those now subject to statutes could be expected to understand them. On the other hand, an interpreter more oriented towards effectuating statutory purpose or legislative intent would ideally look to interpretive tools contemporaneous with the drafting of the statute under consideration. Regardless of which approach a jurist takes, the date and nature of interpretive sources should bear some general relationship to the model. The meanings of words change over time,[90] and major dictionaries are updated at sufficiently infrequent intervals to allow significant linguistic development between editions.[91] If an interpreter has a choice of resources it would make sense to choose those that best match the desired period and readership.

The Supreme Court has failed to use dictionaries in such a principled manner.[92] In recent Terms, the Court has cited everything from small volumes designed for quick reference such as Webster's Collegiate Dictionary and The Random House Dictionary to unabridged tomes such as Webster's Third New International Dictionary and The Oxford English Dictionary, not to mention specialized works such as Black's Law Dictionary. Yet there has been no apparent pattern to (or discussion of) the Justices' choices of volume or vintage.[93] Justice Scalia, for example, has referred to the 1950 edition of Webster's Second in four cases during the past three years,[94] to other editions of Webster's Second in two cases,[95] and to Webster's Third in two cases,[96] with no evident relationship between the age of the dictionary and that of the statute under consideration.[97] Dictionaries from various time periods may give similar or even identical definitions for a term, but if that is the case the Court should say so. If the Court is serious about its quest for ordinary meaning, it should not continue to employ dictionaries in such a disorganized fashion.[98]

B. Dictionaries and ConservatismThe Court's inconsistency, and its failure to justify its application of dictionary definitions to particular cases, call into question the extent to which the Justices actually employ dictionaries as vehicles for ascertaining ordinary meaning. As this paper has demonstrated, judges can use dictionaries subjectively either to concretize or to blur statutory and constitutional terms, without abandoning the veneer of textual objectivity.[99] A judge who wished to advance certain policy preferences could therefore employ dictionary definitions to generate "ordinary" meanings that exhibit a systematic ideological bias. Because the recent rise in dictionary citations has occurred at the same time as the Court's much-publicized turn to the right, the question arises whether there is any inherent linkage between the use of dictionaries and ideological conservatism.Empirical evidence suggests a connection between the Court's fondness for dictionaries and a conservative jurisprudence. Many of the most prolific dictionary citers are judges on the right of the political spectrum,[100] with Justice Scalia serving as both the most forceful advocate of conservative views and the Justice most likely to refer to dictionaries over the past five Terms.[101] The dramatic upturn in dictionary references began around 1985, the year of Justice Scalia's appointment and Justice Rehnquist's elevation to the position of Chief Justice.[102] Moreover, an examination of the broader historical record reveals that the one time prior to the past decade that the Supreme Court sharply increased its references to dictionaries was the period around 1905,[103] the year the Court decided Lochner v. New York.[104] Other commentators have suggested technical and substantive parallels between the Lochner Court's efforts to restrict government regulation of private transactions and the current Court's revanchist conservatism.[105] Although the data set may be too small to allow for firm conclusions, it is intriguing that the only two instances of substantially increased dictionary citation have coincided with periods of conservative control over the Court.
Such correlations do not prove causation. There are, however, deeper reasons to suspect an conservative bias to the Court's use of dictionaries. At a broader level, others have suggested a connection between the new textualism and conservatism.[106] Decisions that emphasize judicial neutrality and doctrinal continuity tend to privilege existing social structures and wealth distribution.[107] Moreover, when a statute is intended to serve a broad remedial function, an exclusive focus on the plain meaning of terms is likely to vitiate extra-textual Congressional intent. This effect is most noticeable in the area of civil rights. Since 1978, Congress has expressly overruled eight Supreme Court cases that limited the scope of civil rights laws.[108] The incongruity of this fact with the Court's professed intent to faithfully implement the will of the legislature suggests that other ideological forces may be at work.[109]
These general arguments are ultimately unconvincing. Most scholars who have considered the question have concluded that whatever association may exist between textualism and conservatism is the product of particular contextual circumstances.[110] What appears to be a liberal position today may have been a quintessentially conservative one in the past, or vice versa.[111] The plain meaning approach in and of itself does not privilege any ideological viewpoints, as evidenced by Justice Scalia's willingness to reach traditionally "liberal" results in many cases.[112] When statutes are drafted broadly, the plain meaning of statutory terms may lead to an expansive construction rather than a narrowing one.[113]

The conclusion that plain meaning interpretation is not inherently conservative does not, however, demonstrate that dictionaries have no such biases. In fact, most dictionaries are conservative in the broad sense of privileging existing word usage rather than spurring linguistic development.[114] To some extent, dictionaries must reflect settled language patterns; as fixed written works they cannot -- outside of new editions -- take into account the constant evolution of living spoken languages. Yet this aspect of dictionaries can cause difficulties for statutory interpretation. No less a proponent of textualism than Judge Frank Easterbrook recently declared that "the choice among meanings must have a footing more solid than a dictionary -- which is a museum of words, an historical catalog rather than a means to decode the work of legislatures."[115] Furthermore, most major dictionaries go beyond the necessary level of rigidity, and actively seek to constrain linguistic change by assigning normative force to certain "correct" lexical and grammatical forms.[116] Although modern linguistics holds that "'correctness' can only rest upon usage . . . [a]nd all usage is relative,"[117] dictionaries have traditionally sought to preserve existing meanings rather than acknowledge the development of new ones. Dictionaries that move away from this prescriptive approach, such as Webster's Third New International Dictionary, have been met with scorn and ridicule.[118]

A preference for continuity over change -- in statutory interpretation and in lexicography -- is not necessarily a harmful posture for courts charged with construing legislative enactments. Judicial decisions that limit statutes to the plain meaning of their texts help to integrate new legislation with existing rules and principles.[119] The inherent conservatism of most dictionaries has similar benefits: authors and readers must assume some level of linguistic certainty in order to achieve parallel understandings of complex texts such as statutes. Particular statutory contexts may, however, counsel against application of the status quo to certain cases. As the following section demonstrates, dictionaries are ill-suited to incorporate such contextual factors.

C. Dictionaries and LanguageDictionaries are not only vehicles of particular judicial programs, but also windows on language itself.[120] The process of divining statutory meaning necessarily implicates linguistic concepts, and the value of dictionaries to interpretation must be judged in part on their ability to reflect the complexities of language. The Court's use of dictionaries is problematic in linguistic terms for much the same reasons that the practice causes difficulties from the perspective of statutory interpretation -- dictionaries are forced to carry far more weight than they were or could be designed to bear.

1. Failure to Capture Statutory Context.
One of the most significant flaws of dictionaries as interpretive tools is the imperfect relationship of dictionaries to statutory context. The essence of words can never be described fully in the absence of contextual cues; in fact, many theorists have argued that meaning, as we understand it, does not exist without context.[121] Consequently, no dictionary can completely capture the particular historical and textual context of a statutory term.[122] Nor does any dictionary claim to do so. According to Hart and Sacks's Legal Process materials, dictionaries, like canons of construction, "simply answer the question whether a particular meaning is linguistically permissible, if the context warrants it."[123] Dictionaries are only starting points, organized according to rough analogies and dependent on evidence that "the context warrants" application of their definitions.[124]The limited ability of dictionaries to reflect statutory context can lead courts to interpretive blunders. Dictionaries can be pernicious both when their definitions are applied in an inappropriate context and more subtly, when they obscure or prevent an inquiry into the context of a statute.[125] Under some circumstances, dictionary definitions may even run directly contrary to contextual ordinary meaning. The old case of Nix v. Hedden[126] provides an excellent example of the uncertain relationship between dictionary meanings and the popular understanding of statutory language. At issue in Nix was whether tomatoes were fruits or vegetables under the Tariff Act of 1883.[127] Justice Gray, writing for the Court, acknowledged that dictionaries[128] generally defined a tomato as a fruit. However, because "in the common language of the people [tomatoes] are vegetables,"[129] Justice Gray rejected the dictionary definitions. Nix makes intuitive sense from an ordinary meaning perspective -- Justice Gray was undoubtedly correct that most readers would consider tomatoes vegetables regardless of their botanical classification. However, the decision in Nix can only be justified by an inquiry into the statute's purpose or by an appeal to common sense arguments about the way tomatoes are usually served at meals.
This type of analysis correctly seeks to determine the appropriateness of a definition for the particular statutory context, but is precisely the approach the Court today often uses dictionaries to avoid. The current Court's willingness to give presumptive weight to dictionary definitions without explicit pragmatic justifications for its method is therefore as capable of frustrating as of revealing ordinary meaning.[130] The argument that the inappropriateness of the dictionary definition of tomatoes in Nix was obviously contrary the statute's purpose, or to an ordinary reading of the word, only demonstrates that Nix is an easy case, an exception which proves the rule. In close cases, reliance on dictionaries may shift the balance away from precisely the commonsense, ordinary lay meaning that the Court seeks to enunciate.
When courts focus on dictionaries rather than on the statutes before them, they create illusory frameworks that may lead to strange or inconsistent decisions. Two recent cases demonstrate the danger of reliance on dictionaries to the exclusion of contextual considerations.[131] In Chapman v. United States,[132] Chief Justice Rehnquist utilized an abstract, technical dictionary definition to reach the awkward conclusion that blotter paper soaked with LSD is a "mixture."[133] The Chief Justice therefore upheld a minimum five-year sentence based on the combined weight of the LSD and the paper used to carry it. As Judge Posner persuasively argued in his dissent in the Court of Appeals, the outcome of the case does not comport with the understanding most ordinary people would have of the term "mixture."[134] Under the Chief Justice's reasoning, a single dose of LSD diluted in a quart of orange juice would lead to a longer sentence than multiple doses diluted in a small cup of orange juice.

Arave v Creech[135] concerned the question of whether an Idaho death penalty statute that required a showing of "utter disregard for human life," construed by the state's courts as a showing that the defendant was a "cold-blooded, pitiless slayer," was unconstitutionally vague and subjective.[136] In upholding the statute, Justice O'Connor cited two dictionaries for the proposition that "[i]n ordinary usage . . . the phrase `cold-blooded, pitiless slayer' refers to a killer who kills without feeling or sympathy."[137] Justice Blackmun, in dissent, ridiculed Justice O'Connor's reliance on dictionaries to limit the statute's scope. He cited a series of newspaper articles employing "cold-blooded" for a wide range of crimes, to demonstrate that the majority's construction was not consonant with the ordinary meaning of the phrase.[138] As Justice Blackmun pointed out, Justice O'Connor's definition hardly narrowed the scope of the phrase -- few murderers exhibit sympathy towards those they kill.[139]

There is no necessary conflict between the search for plain meaning and contextual analysis.[140] The very notion of a plain "meaning" is parasitic on the conception of meaning itself, which as previously noted implies an established context.[141] The problem is that dictionaries as a source of plain meaning push away from contextual analysis. Dictionaries are not entirely acontextual; they group definitions according to major alternative meanings and often provide examples of recorded usages. Courts engage in an entirely appropriate rough contextual winnowing process as they determine the appropriate definition class to apply to a statute: for example, recognizing implicitly that "sole" in the Constitution refers neither to fish, nor to shoes, but to exclusivity.[142] This process breaks down, however, when a court must make fine contextual distinctions between many plausible definitions from many dictionaries. At this level of specificity, the relation to statutory context is no longer intuitively obvious. A court must justify the jump from the statute to a particular definition with arguments exogenous to the dictionary definition itself. It is this type of reasoning that has been conspicuously absent from many of the Court's recent dictionary-influenced decisions.

2. The danger of categorization.
A further difficulty with dictionaries, from a linguistic perspective, is their tendency to assign words to overly simplistic categories. The problem of relating words to explicable groupings has long occupied both linguists and philosophers. Ludwig Wittgenstein's famous story about a game of dice demonstrates the complexity of categorization:

Someone says to me: "Shew the children a game." I teach them gaming with dice, and the other says, "I didn't mean that sort of game." Must the exclusion of the game with dice have come before his mind when he gave me the order?[143]Wittgenstein's tale illustrates the near-impossibility of determining ex ante which particular examples (dice) fit into a general category (games). Two elements of what linguists call "word knowledge" explain this difficulty. First, words are fuzzy at the margins: "When does a hill become a mountain? On a continuum of shapes, when does a cup become a bowl? . . . When we ask people to Come here, how close do they have to be before they have reached the state of herehood?"[144] Second, the conditions for membership in a word-category "are not readily accessible by intuition."[145] Consequently, it is difficult if not impossible to determine with certainty whether a given word fits within a certain set of situations.[146]
Authors of dictionaries -- and courts that engage in statutory interpretation -- must attempt this impossible task. Lexicographers recognize that the definitions and categories provided in dictionaries can never be perfect, but seek to achieve the best possible fit in order to assist the reader.[147] Courts perform a similar function in seeking to determine whether a given fact pattern fits within a statutorily-defined class. At least two fundamental differences mitigate the usefulness of lexicographical techniques to judicial interpretation, however. First, courts must definitively resolve every case that comes before them. All judicial decisions invoke the coercive power of the state, whether or not the boundaries of statutory categories are readily identifiable. In contrast, dictionary editors have the luxury of listing many possible definitions without privileging any of them. Second, lexicographers seek to enumerate all possible general categories to which a word can belong, whereas courts must establish the relationship of words to specific situations. Both distinctions suggest that the tentative conclusions of dictionary editors cannot simply be transmuted into the authoritative findings of judges. The Supreme Court, therefore, goes astray when it uncritically applies imperfect dictionary categorizations to resolve controversies definitively.

IV. Toward a More Sensitive Approach to Dictionaries. The fundamental problem with the Supreme Court's current use of dictionaries lies in its arbitrariness and over-expansiveness. There is nothing wrong with employing dictionaries to identify the general outlines of word meanings and then relying on contextual arguments from text, structure, history, or policy to determine which meaning is appropriate. Difficulties arise from the assumption that dictionaries provide perfect category boundaries, and then applying those boundaries to contexts never considered by the authors of the dictionaries. Dictionaries can, in some cases, provide valuable assistance to Justices seeking to distill the essence of statutory terms. But dictionaries should occupy a space at the beginning rather than the end of the interpretive process. The Court should accept dictionaries for what they are and use them in an principled fashion if they further particular interpretive goals. A more modest role for dictionaries would also be consistent with the actual structure of most high-quality dictionaries.[148] As Hart and Sacks explained, "[a]n unabridged dictionary is simply an historical record, not necessarily all-inclusive, of the meanings which words in fact have borne, in the judgment of the editors, in the writings of reputable authors."[149]Justice Scalia's dissent in United States v. Smith[150] provides a good starting point for a more sensitive approach to dictionaries.[151] The Court should always ask whether a definition truly fits with popular understanding of a term, and should strive to identify a normal -- rather than merely a permissible -- meaning. Dictionaries should not preclude considerations of statutory context, whether that contextual investigation involves only the structure and content of the statute itself or a broader inquiry into history and intent. If the Court relies on a dictionary, it should make at least some prima facie argument about the relevance of that particular dictionary for interpretation of the statute or constitutional provision under consideration.
In short, the Court should acknowledge that in using dictionaries as interpretive tools it is making a choice. That choice must not be left unspoken, and must not be based on simplistic or mistaken assumptions about the applicability of dictionaries to the distinctive project of judicial interpretation. If the Court continues to avoid this acknowledgment, dictionaries will indeed become the "fortress" Judge Hand cautioned against.[152]

Appendix A:References to Dictionaries, 1842 Term - 1992 Term

Lists all cases that include the words "dictionary" or "dictionaries." Search of LEXIS, Genfed library, US file (January 4, 1994)

Appendix B:Percentage of Cases Referring to Dictionaries, 1935 Term - 1992 Term

Percentages calculated based on number of signed opinions in each Term, as reported annually by U.S. Law Week.

Appendix C:Dictionary References by Justice, 1988 Term - 1992 Term

Appendix D:Dictionaries Cited, 1988 Term - 1992 TermMultiple references to the same dictionary are noted in brackets.
Blackmun
Webster's 3rd (no specified year)
Webster's 9th Collegiate (1983) [2]
Webster's 3rd (1961)
Sheridan (1780)
Walk(1791)
Kersey (1702)
Webster's 3rd (1986) [2]
Black's (6th ed. 1990) [5]
Webster's 3rd (1976)
Webster's 3rd (1981)
Cunningham (1771)
Tolins, Law Dictionary (1836)
Bouvier (4th ed. 1852)
Blount, Law Dictionary (1670)

Brennan
Webster's 3rd (1976)
Anderson, A Dictionary of Law (1893)
Bouvier, Law Dictionary (11th ed. 1866) [2]
Cyclopedic Dictionary of Law (1901)
Blacks (5th ed. 1979) [3]
Blacks (1891)
Abbott (1879)
Words & Phrases (1905)
Webster's 2nd (1957)
Funk and Wagnells (1952)
Webster's 3rd (1981)
OED 2nd (1989)

Kennedy
Webster's 3rd (1971) [2]
Blacks (6th ed. 1990)
Bouvier (8th ed. 1914)
Webster's 3rd (1986)
American Heritage (1981)

Marshall
Webster's 3rd (1981)
Webster's 3rd (1966)
Webster's 3rd (1986)
Blacks (5th ed. 1979)
Blacks (6th ed. 1990)

O'Connor
Webster's 3rd (1961)
Webster's 2nd (1950)
Blacks (5th ed. 1979) [4]
New English Dictionary (1897)
Webster's 2nd (1949)
Black's (6th ed. 1990) [5]
Webster's 3rd (1986) [2]
Blount (1670)
Sheridan (1796)
Johnson (1785)
Richardson (1839)
Webster's 3rd (1971)

Rehnquist
Black's (5th ed. 1979) [3]
Cyclopedic Law Dictionary (2d ed. 1922)
Random House Dictionary (2d ed. 1987)
Webster's 2nd (1945)
Webster's 2nd (1942)
Johnson (1785)
Sheridan (1796)
Webster's 3rd (1971)
Black's (6th ed. 1990)
OED (2d ed. 1989) [2]
Webster's 3rd (1986)

Scalia
Webster's American Dictionary (1828) [4]
Linguae Britannicae (1757)
Dictionarium Britannicum (1730)
Kersey (1702)
Sheridan (1780)
Walker (1791)
Blacks (5th ed. 1979) [2]
Webster's 2nd (1957)
Webster's 3rd (1981) [3]
OED (2d ed. 1989)
Webster's 2nd (1950) [4]
Blacks (6th ed. 1990) [6]
Bouvier, Law Dictionary (1883)
Bouvier( 6th ed. 1856)
Webster's 2nd (1939)
Webster's 2nd (1954)
Webster's 2nd (1945)
Webster's 3rd (1961)
Webster's 9th Collegiate (1983)
Ballantine Law Dictionary (2d ed. 1948)

Souter
Webster's 2nd (1942) [2]
Blacks (6th ed. 1990) [5]
Random House Dictionary (2d ed. 1987) [2]
Webster's 3rd (1976) [2]
OED (2d ed. 1989)
Ballantine's Law Dictionary (3d ed. 1969)
Blacks (3d ed. 1933)

Stevens
Webster's 3rd (1986)
Webster's 3rd (1979)
Random House (2d ed. 1987)
OED (2d ed. 1989) [2]
Webster's 3rd (1966) [2]
Blacks (6th ed. 1990) [2]
Webster's Collegiate (1975)
American Heritage (2d College ed. 1982)
Compact OED (1981)
Johnson (7th ed. 1785)
Sheridan (6th ed. 1796)
Webster's 9th Collegiate (1983)
Webster's 3rd (1981)
Webster's 3rd (1976)

Thomas
Cunningham (1771)
Walker (1791)
Webster, American Dictionary (1828) [2]
Blacks (6th ed. 1990) [5]
Blacks (4th ed. 1951)
American Heritage Dictionary (10th ed. 1981)
Webster's 3rd (1986)
Buchanon, Linguae Brittanicae (1757)
Blacks (3d ed. 1933)
Cyclopedic Law Dictionary (3d ed. 1940)

White
Webster's Collegiate (9th ed. 1983) [4]
Webster's 3rd (1961)
Webster's 3rd (1976) [2]
Blacks (6th ed. 1990) [2]
Abbott (1879)
Anderson (1893)
Blacks (1891)
Burrill (1871)
Blacks (5th ed. 1979) [2]





Endnotes1 Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945).
2 This paper will focus exclusively on the Supreme Court, both for reasons of brevity and because the Supreme Court establishes interpretive patterns which are followed by the entire federal judiciary. The discussion applies equally well to other courts, however.
3 At the time of this writing, LEXIS listed 664 Supreme Court cases that mention the words "dictionary" or "dictionaries." Search of LEXIS, Genfed library, US file (Mar. 21, 1994).
4 See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 321 (1990) ("In the last decade, statutory interpretation has reemerged as an important topic of academic theory and discussion."); Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 Minn. L. Rev. 241, 241 (1992) (reflecting on the increased scholarly interest in statutory interpretation); David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921, 921 (1992) ("Academic interest in questions of statutory interpretation has reached a new peak just as the Supreme Court's approach to the task of interpretation is going through a sort of sea-change.").
5 Several recent Supreme Court cases have been battlegrounds for competing interpretive methodologies. See, e.g., West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 112 - 16 (1991) (Stevens, J., dissenting); I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J., concurring). For an overview, see Frickey, supra note 4, at 256 ("Since the mid-1980s, the debate has raged among at least three schools of statutory interpretation theory. . . . The Supreme Court remains up for grabs.").
Theories of statutory interpretation have also generated public discussion in recent years. See, e.g., Laurence H. Tribe, Clarence Thomas and `Natural Law', N.Y. Times, July 15, 1991, at A15; Edward Walsh & Al Kamen, Judge Bork Pledges `to Interpret Law and Not to Make It', Washington Post, Sept. 20, 1987, at A16.
6 Only a few articles have addressed the Court's use of dictionaries. See A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 71 (1994); Lawrence Solan, When Judges Use the Dictionary, 68 Am. Speech 50 (1993); David O. Stewart, By the Book: Looking Up the Law in the Dictionary, A.B.A. J., July 1993, at 46; James L. Weis, Jurisprudence by Webster's: The Role of the Dictionary in Legal Thought, 39 Mercer L. Rev. 961 (1988). None of these explored in any detail the significance of and rationale for the striking trend towards increased dictionary references. More general works on statutory interpretation occasionally acknowledge the prominence of dictionaries among advocates of certain jurisprudential schools. See, e.g., William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523, 552 (1992) ("Justice Scalia himself slavishly relies on dictionaries to interpret statutes . . . .").
7 See Frank H. Vizetelly, The Development of the Dictionary of the English Language 9 - 15 (1915); Ernest Weekley, On Dictionaries, Atlantic Monthly, June, 1924, at 782, 783 - 87. American dictionaries also have a long tradition; Noah Webster's first dictionary was printed in 1806. Webster's American Dictionary, generally considered the first work of American lexicography to rival the great European dictionaries, was published in 1828.
There were several other dictionaries in common use in the early eighteenth century; the first American legal dictionary appeared in 1883. See David Mellinkoff, The Myth of Precision and the Law Dictionary, 31 U.C.L.A. L. Rev. 423 (1983). 8 See Respublica v. Steele, 2 U.S. (2 Dall.) 92, 92 (1785).
9 Search of LEXIS, Genfed library, US file (Jan. 4, 1994). Such computer searches are admittedly imperfect, but they suffice to confirm significant trends and patterns in the Court's practice. A variety of factors, such as the predilections of individual Justices and of their clerks, the type of cases before the Court, and the availability of various dictionaries may cause fluctuations in the number of dictionary references. However, it is very unlikely that these extraneous factors are responsible for the recent increase in dictionary use given the magnitude of the upsurge and the extended period surveyed.
10 See Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 Minn. L. Rev. 269, 298 & n.131 (1992).
11 Search of LEXIS, Genfed library, US file (Jan. 4, 1994); see also infra Appendix A. The one period of significantly increased citation to dictionaries prior to the 1980s was the early years of the twentieth century. For speculation about the significance of this earlier increase, see pp. 30 - 31, below.
12 Search of LEXIS, Genfed library, US file (Aug. 22, 1993). Some of the research presented here appeared in a slightly different form in a case comment I authored last year. See The Supreme Court, 1992 Term -- Leading Cases, 107 Harv. L. Rev. 144, 298 - 99 & n.58 (1993) (analyzing Nixon v. United States, 113 S. Ct. 732 (1993)) [hereinafter Nixon Comment]. Additional data are presented in graphical format in Appendix A.
13 Search of LEXIS, Genfed library, US file (Aug. 22, 1993). The absolute number of citations might be considered statistically less significant than the percentage of opinions in each Term that refer to dictionaries. Although consistent data on the number of published opinions is not readily available for years prior to 1933, an analysis of the percentage of opinions referring to dictionaries over the years for which data are available shows no significant deviation from the trend established by the raw number of citations. See infra Appendix B.
14 Search of LEXIS, Genfed library, US file (Aug. 22, 1993). Two other authors have reached similar conclusions, based on more limited data. See Solan, supra note 6, at 51 (identifying 90 references to dictionaries during the 1986 - 1991 period); Stewart, supra note 6, at 46 (citing 54 references in 38 cases between January 1, 1992 and May 17, 1993).
In addition, a few observers have identified the trend anecdotally. See, e.g., Randolph, supra note 6, at 71 ("[M]ore and more disputes about the meaning of statutes are greeted with citations to dictionaries."); Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 231 ("The Justices . . . have been spending their time reading (Noah) Webster . . . .").
Data from the 1993 Term have not been included because the Term was incomplete at the time of this writing.
15 Search of LEXIS, Genfed library, US file (Jan. 4, 1994). The Justices undoubtedly consulted dictionaries in other cases, but did not cite them in their opinions. Such usage is necessarily unquantifiable, and in any event the incidence of dictionary references in published opinions reflects the degree to which the Justices feel comfortable publicly declaring their usage of dictionaries.
16 The various printings of Webster's Third New International Dictionary, with 40 references, and the sixth edition of Black's Law Dictionary, with 35 citations, have been most frequently cited over the past five Terms. Search of LEXIS, Genfed library, US file (Mar. 21, 1994).
Some distinction could theoretically be made between general-use dictionaries and specialized legal volumes such as Black's Law Dictionary. As the data indicate, however, the Court has not limited itself to either type of work, and the Justices have given no indication that they find non-legal dictionaries less useful to their interpretive endeavors.
For a breakdown of which dictionary each Justice has cited over the past five Terms, see Appendix D.
17 See, e.g., Commissioner v. Soliman, 113 S. Ct. 701, 706 (1993) (defining "principal" in the Internal Revenue Code); Grady v. Corbin, 495 U.S. 508, 529 (1990) (Scalia, J., dissenting) (citing five old dictionaries to establish the original meaning of the Double Jeopardy Clause).
18 See infra Appendix C. Justice Scalia had both the highest number of opinions mentioning dictionaries and the highest percentage of opinions for any Justice on the Court during the entire 1988 - 1992 period. Justices Scalia and Thomas both had substantially higher percentages of opinions referring to dictionaries during this period, but these numbers are suspect due to the much smaller number of opinions each has written.
19 See, e.g., Hartford Fire Ins. Co. v. California, 113 S. Ct. 2891, 2901 (1993) (Souter, J.) (defining "business" in the McCarran-Ferguson Act); Daubert v. Merrell Dow Pharmeceuticals, Inc., 113 S. Ct. 2786, 2795 (1993) (Blackmun, J.) (defining "knowledge" in the Federal Rules of Evidence); Smith v. United States, 113 S. Ct. 2050, 2054 (1993) (O'Connor, J.) (defining "use" of a firearm); Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 113 S. Ct. 1489, 1494 - 95 (1993) (White, J.) (defining "neglect" in the Bankruptcy Code); Commissioner v. Soliman, 113 S. Ct. 701, 706 (1993) (Kennedy, J.) (defining "principal" in the Internal Revenue Code); District of Columbia v. Greater Washington Bd. of Trade, 113 S. Ct. 580, 583 (1992) (Thomas, J.) (defining "relate to" in ERISA); Chapman v. United States, 111 S. Ct. 1919, 1926 (1991) (Rehnquist, C.J.) (defining "mixture" in a criminal statute); California v. Hodari D., 499 U.S. 621, 624 (1991) (Scalia, J.) (defining "seizure" in the Fourth Amendment); Kay v. Ehrler, 499 U.S. 432, 436 n.6 (1991) (Stevens, J.) (defining "attorney" in an attorney's fee shifting statute).
20 See Nix v. Hedden, 149 U.S. 304, 307 (1893) ("[D]ictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court."); see also Brown v. Piper, 91 U.S. 37, 42 (1875) ("[I]f the judge's memory is at fault, he may refresh it by resorting to any means for that purpose which he may deem safe and proper.").
21 In fact, many of the "citations" to dictionaries prior to 1980 were either general references or criticisms of the role of dictionaries, rather than specific citations. See, e.g. The Colony, Inc. v. C.I.R., 357 U.S. 28, 33 (1958); Sixty-Two Cases, More or Less, Each Containing Six Jars of Jam v. United States, 340 U.S. 593, 596 (1951); Hynes v. Grimes Packing Co., 337 U.S. 86, 115 - 16 (1949).
22 Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1220 (tent. ed. 1958).
23 See, e.g., Chapman v. United States, 111 S. Ct. 1919, 1926 (1991) (using a dictionary definition of "mixture" despite the awkward results it could create); Board of Educ. v. Mergens, 496 U.S. 226, 237 - 40 (1990) (relying on dictionary definitions of "curriculum" despite strong policy arguments to the contrary).
24 Search of LEXIS, Genfed library, US file (Aug. 22, 1993).
25 For examples of the centrality of dictionaries in two opinions from last Term, see pp. 16 - 20.
26 Others have hinted at this conclusion or asserted that some relationship must exist, but I am unaware of any previous effort to systematically related dictionaries to developments in statutory interpretation. See, e.g., Randolph, supra note 6, at 72 ("[T]he frequency of these [dictionary] citations reflects a tilt toward textualism.").
27 See Stewart, supra note 6, at 47 (theorizing that less experienced Justices may resort to dictionaries because they are less "comfortable interpreting statutory language on the basis of their experience and reasoning").
28 See Eskridge & Frickey, supra note 4, at 321 (stating that statutes are "now our primary source of law").
29 See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 625 (1990); Shapiro, supra note 4, at 921; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 415 - 16 (1989).
30 The terms are often used interchangeably, and this paper will do the same, unless otherwise indicated. The "plain meaning rule" is often used to describe the construction of statutes that are so unambiguous that recourse to extra-textual interpretive sources is unnecessary. See William M. Eskridge, Jr. & Philip P. Frickey, Cases and Materials on Legislation 573 - 75, 591 - 92 (1988). In recent years, however, the Court has so far extended the range of statutes to which the broader plain meaning method is applied that a distinction between plain and ordinary meaning often makes little sense. See Schauer, supra note 14, at 231 - 32.
31 The phrase "new textualism" was coined by Professor William Eskridge. See Eskridge, supra note 29, at 623.
32 32 See id. at 623. The new textualism harkens back to an interpretive method that enjoyed prominence prior to World War II. See Harry W. Jones, The Plain Meaning Rule and Extrinsic Aids in the Interpretation of Federal Statutes, 25 Wash. U. L.Q. 2, 5 (1939).
33 See Eric Schnapper, Statutory Misinterpretations: A Legal Autopsy, 68 Notre Dame L. Rev. 1095, 1114, 1117 (1993); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 61 - 62 (1994) (advocating the use of legislative history only in limited circumstances; Eskridge, supra note 29, at 623 ("The new textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant.").
34 See Eskridge, supra note 29, at 623.
35 111 S. Ct. 2354 (1991).
36 Id. at 2369.
37 Id. at 2376.
38 See, e.g., KMart Corp. v. Cartier, Inc., 486 U.S. 281, 325 (1988) (Scalia, J., concurring in part and dissenting in part); see also Easterbrook, supra note 33, at 63 ("The concern is that only a relatively mechanical approach can be reconciled with the premises of democratic governance."); Eskridge & Frickey, supra note 4, at 340 ("By emphasizing the statutory words chosen by the legislature, rather than (what seem to be) more abstract and judicially malleable interpretive sources, textualism also appeals to the values of legislative supremacy and judicial restraint.").
39 See Eskridge, supra note 29, at 656 - 60.
40 Chisom v. Roemer, 111 S. Ct. 2354, 2369 (Scalia, J., dissenting); see also Schauer, supra note 14, at 246 ("[P]lain language discourse dominates the Court's statutory interpretation cases.").
41 See Easterbook, supra note 33, at 67 (demonstrating that even Justices not commonly associated with textualism now sometimes base majority opinions on plain meaning interpretation).
42 See, e.g., Daniel A. Farber, The Inevitability of Practical Reason, 45 Vand. L. Rev. 533, 550 - 54 (1992) (criticizing various manifestations of "formalist" interpretation).
43 See, e.g., Schnapper, supra note 33, at 1108 - 09.
44 See, e.g., Schauer, supra note 14, at 253 - 55.
45 See Norman J. Singer, Sutherland on Statutes and Statutory Construction ¤46.02, at 92 (5th ed. 1992) ("[D]ictionary definitions, which report common usage, are often mentioned in court opinions which are labeled as literal statutory applications.").
46 See, e.g., Sunstein, supra note 29, at 416 ("Some textualists emphasize the `plain meaning' or dictionary definition of statutory terms . . . .").
47 See Solan, supra note 6, at 56.
48 See Chisom v. Roemer, 111 S. Ct. 2354, 2372 (1991) (Scalia, J., dissenting).
49 Id.
50 See id. (citing Webster's Second New International Dictionary 2114 (1950)). Other dictionaries do include elected judges within the definition of "representative." See, e.g., American Heritage Dictionary of the English Language 1532 (3d ed. 1992).
51 Although Justice Scalia cited to the 1950 printing, Webster's Second New International Dictionary was originally published in 1934. The timing is not insignificant. Webster's Third New International Dictionary was released in 1961 to a storm of controversy about its more permissive approach to language. See James Sledd & Wilma R. Ebbitt, Dictionaries and That Dictionary 50 - 250 (1962). Given the important differences between Webster's Second and Webster's Third, and the fact that the Voting Rights Act was passed only a few years after the release of Webster's Third, Justice Scalia's continued reliance on the older volume is especially noticeable.
52 Justice Scalia also investigated various other arguments regarding the meaning of "representatives" in the statutory context. Nonetheless, his analysis began from the initial dictionary-derived conclusion that judges normally would not fit within the ordinary meaning of the statute.
In other cases, Justice Scalia has taken a much less wooden approach to ordinary meaning interpretation. His dissent in Smith v. United States, 113 S. Ct. 2050, 2060 - 61 (1993), for example, rejected a strained dictionary-based interpretation and offered instead a construction based on common sense and contextual arguments. See infra note . For a detailed discussion of Justice Scalia's more nuanced jurisprudence, see Nicholas S. Zeppos, Justice Scalia's Textualism: The "New" New Legal Process, 12 Cardozo L. Rev. 1597, 1615 - 16 (1991).
53 113 S. Ct. 2050 (1993).
54 Id. at 2053.
55 See id. at 2054 (citing Webster's New International Dictionary of the English Language 2806 (2d ed. 1949) and Black's Law Dictionary 1541 (6th ed. 1990)).
56 Id.
57 See id. at 2055.
58 Id.
59 See infra pp. 35 - 41.
60 See id. at 2060.
61 Id. at 2061.
62 This sensitivity to context and common sense demonstrates that a more enlightened approach to using dictionaries is possible within the confines of ordinary meaning jurisprudence. For a more detailed description of such an approach, see pp. 43 - 46.
63 See infra pp. 35 - 36.
64 For another recent example of this practice, see Ardestani v. Immigration and Naturalization Serv., 112 S. Ct. 515, 519 (1991) (O'Connor, J.) (stating that, because the word "under" has many possible definitions, the Court must determine its meaning by context rather than by citing dictionaries).
65 113 S. Ct. 732 (1993).
66 Nixon differs from Smith and most cases that involve dictionaries in that the Court construed the Constitution rather than a federal statute. Although statutory and constitutional interpretation are often considered distinct endeavors, the Court has generally not made any distinction in its use of dictionaries for the two types of cases. The Court has employed dictionaries to interpret the Constitution in a number of recent cases. See, e.g., Helling v. McKinney, 113 S. Ct. 2475, 2483 (1993) (interpreting the Eighth Amendment); California v. Hodari D., 499 U.S. 621, 624 (1991) (interpreting the Fourth Amendment). For the most part, such cases have cited old dictionaries to demonstrate the meaning of constitutional language at the time it was drafted.
67 See Nixon, 113 S. Ct. at 734.
68 U.S. Const. art. I, ¤3, cl. 6.
69 See id. at 735.
70 See id. at 740. For an explanation of the centrality of dictionaries to the Court's analysis in Nixon, see Nixon Comment, supra note 12, at 296 - 303.
71 See Nixon, 113 S. Ct. at 736.
72 See id. The Chief Justice's opinion, which found the matter to be a nonjusticiable political question, was not wholly persuasive on its own merits. See Nixon Comment, supra note 12, at 300.
73 See supra pp. 16 - 17. Justice O'Connor used dictionaries in a similar way in Arave v. Creech, 113 S. Ct. 1534, 1541 (1993). See infra pp. 39 - 40.
74 See infra pp. 44 - 45.
75 See, e.g., Board of Educ. v. Mergens, 496 U.S. 226, 270 - 71 (1990) (Stevens, J., dissenting) ("The dictionary is a necessary, and sometimes sufficient, aid to the judge confronted with the task of construing an opaque act of Congress. In a case like this, however, I believe we must probe more deeply to avoid a patently bizarre result.").
76 United States v. Smith, 113 S. Ct. 2050 (1993). See supra pp. 16 - 17.
77 See, e.g., Pioneer Inv. Servs. v. Brunswick Assocs. Ltd., 113 S. Ct. 1489, 1502 (1993) (O'Connor, J., dissenting) (asserting that, if Congress wished to depart from the accepted meaning of "excusable neglect," as defined in Black's Law Dictionary, "surely it would have so indicated").
78 See supra note - 46.
79 See Easterbrook, supra note 33 at 67.
80 See, e.g., Eskridge, supra note 29 at 650 - 55.
81 See, e.g., Wainwright v. Witt, 469 U.S. 412, 433 (1985) (generalizing about what "the dictionary definitions" of certain words would signify).
82 Lexicographers recognize their inability to establish unitary meanings for terms. See infra pp. 35 - 36, 43.
83 See Sunstein, supra note 29, at 418 - 19 ("To say that courts should rely on the words or on their ordinary meaning -- the plain meaning approach -- is unhelpful when statutory words have more than one dictionary definition, or when the context produces interpretive doubt.").
84 In Smith, the issue was whether bartering a gun fell within the category of "use," so there is some validity to Justice O'Connor's argument. See Smith v. United States, 113 S. Ct. 2050, 2055 (1993). However, as Justice Scalia persuasively argued in dissent, see id. at 2061, ordinary meaning must mean something narrower than possible meaning. The fact that some group of readers may be found who would understand a statutory term a certain way does not mean that this particular reading is "ordinary."
85 See Note, Fact and Opinion in Defamation: Recognizing the Formative Power of Context, 58 Fordham L. Rev. 761, 768 n.42 (1990) ("Dictionaries are assembled for particular audiences and purposes. Selecting a dictionary and then relying upon its definitions are themselves interpretive choices. . . ."). Even ardent textualists agree that judges are not automata, and that some interpretative decision-making must be part of the judicial function. The error lies in the assumption that dictionaries can render judicial decisions objective. In reality, interpretive theories only reintroduce the subjectivity of the interpreter at a meta-level. Cf. William N. Eskridge, Jr., Gadamer/Statutory Interpretation, 90 Colum. L. Rev. 609, 679 (1990) ("Gadamer does not tell us . . . what dictionary to use.").
86 Judges who rely extensively on dictionaries act as though they assume that legislatures consult particular dictionaries when they write statutes. See Nicholas S. Zeppos, Legislative History and the Interpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, 76 Va. L. Rev. 1295, 1320 (1990). 87 See id. at 1321 n.109 ("The air of unreality surrounding efforts to link Congress to a particular dictionary seems far more absurd than the fiction of linking a committee report to the intent of the legislature.").
88 See generally Eskridge, supra note 29, at 632 - 66 (applying Gadamerian hermeneutics, which describes interpretation as a dialogic interaction between authors and interpreters, to legal analysis). Part of the problem arises from the fact that fixed statutory texts can only approximate the multitude of potential interpretations generated through communicative discourse. See Francis Lieber, Legal and Political Hermeneutics 26-30, 42 (Boston, Charles C. Little & James Brown enlarged ed. 1839).
89 But see Easterbrook, supra note 33, at 69 (claiming textualists should look to the enacting Congress as the proper "interpretive community"). Most textualists distinguish the search for unitary legislative intent in statutory interpretation (which they criticize) from originalism in constitutional interpretation (which they support). For a discussion of the implications of this distinction, see Arthur Stock, Note, Justice Scalia's Use of Sources in Statutory and Constitutional Interpretation: How Congress Always Loses, 1990 Duke L.J. 160, 175 - 78.
90 See Easterbrook, supra note 33, at 61 ("The purposes, and so the meaning [of texts] will change with context, and over time."); Bergen Evans, But What's a Dictionary For?, Atlantic Monthly, May 1962, at 57, 58 ("All languages are dynamic rather than static, and hence a `rule' in any language can only be a statement of contemporary practice. Change is constant -- and normal.").
91 For example, the first edition of the Oxford English Dictionary was completed in 1928, and it was not until 1989, more than sixty years later, that the complete second edition was issued. See Aaron J. Rynd, Dictionaries and the Interpretation of Words: A Summary of Difficulties, 24 Alberta L. Rev. 712, 714 (1991). In addition to the changes in the language itself, the attitudes of linguists and lexicographers towards the proper role of dictionaries evolves between various volumes as well. See Evans, supra note 90, at 57 - 58.
92 See Stewart, supra note 6, at 47.
93 The one exception involves the use of old dictionaries to show the original meaning of old statutes, and of the Constitution. Given the changes in the English language over the years and the difficulties of reconstructing the original understanding of drafters who lived two centuries ago, such an approach raises its own problems. See Solan, supra note 6, at 55.
94 See Hartford Fire Ins. Co. v. California, 113 S. Ct. 2891, 2901 (1993); Austin v. United States, 113 S. Ct. 2801, 2813 (1993) (Scalia, J., concurring); Deal v. United States, 113 S. Ct. 1993, 1996 (1993); Chisom v. Roemer, 111 S. Ct. 2354, 2372 (1991) (Scalia, J., dissenting).
95 See Smith v. United States, 113 S. Ct. 2050, 2061 (1993) (Scalia, J., dissenting); Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753, 762 (1993). 96 See Wisconsin Dep't. of Revenue v. William Wrigley Co., 112 S. Ct. 2447, 2453 (1992); California v. Hodari D, 499 U.S. 621, 624 (1991).
97 One can only speculate that the 1950 edition happens to be most prominent in Justice Scalia's chambers; no other Justice cited to that edition during the three-year period.
98 The Court need not cite every available dictionary in each opinion to demonstrate the accuracy of its definitions. After all, the problem is too much dictionary citation, not too little. For a more rational framework for using dictionaries, see pp. 44 - 46.
99 See infra pp. 16 - 20.
100 In recent years, conservative Justices have cited dictionaries with the greatest frequency. See infra Appendix C.
Furthermore, the Justices less aligned with textualism (Justices White, Stevens, and Blackmun) generally cite to less comprehensive dictionaries such as Webster's Collegiate, suggesting that they view the dictionary as a handy assistant rather than a source of decisive authority. Justice White in particular seems content to employ a desk dictionary rather than looking to an unabridged edition. See, e.g., Shaw v. Reno, 113 S. Ct. 2816, 2840 (1993) (White, J., dissenting) (citing Webster's Ninth Collegiate Dictionary in a footnote); Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151, 2158 (1993) (White, J.) (citing Webster's Ninth Collegiate Dictionary in a footnote); Pioneer Investment Servs. Co. v. Brunswick Associates Ltd. Partnership., 113 S. Ct. 1489, 1495 (1993) (citing Webster's Ninth Collegiate Dictionary).
101 See infra Appendix C.
102 See id.
103 See infra Appendix A.
104 198 U.S. 45 (1905).
105 Morton Horwitz, in a recent article, explicitly links the current Court's vision of the Constitution -- and the structure of its opinions -- to that of the Lochner Court. See Morton J. Horwitz, The Supreme Court, 1992 Term -- Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 Harv. L. Rev. 32, 98 - 116 (1993).
106 See id.; see also ??? Ross, Reaganist Realism Comes to Detroit, 1989 U. Ill. L. Rev. 399, 420 - 33.
107 See Horwitz, supra note 105, at 100 & n.335; Cass R. Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873, 882 - 83 (1987).
108 See Steven R. Greenberger, Civil Rights and the Politics of Statutory Interpretation, 62 U. Colo. L. Rev. 37, 38 (1991); Schnapper, supra note 33, at 1095 - 96.
109 Indeed, several members of Congress publicly attacked the Court for what they perceived to be an ideological opposition to civil rights legislation. See 137 Cong. Rec. H3876 (daily ed. June 4, 1991) (Rep. Owen); id. at H3851 (Rep. Conyers); id. at H3859 (Rep. Hughes); id. at H3865 (Rep. DeFazio); id. at H3866 (Rep. Kennedy); id. at H3889 (Rep. Collins); id. at H3853 (Rep. Hoyer).
110 See Erwin Chemerinsky, The Supreme Court, 1988 Term -- Foreword: The Vanishing Constitution, 103 Harv. L. Rev. 43, 59 - 60 (1989); Eskridge, supra note 29, at 668 - 69; Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 Wm. & Mary L. Rev. 827, 829 (1991).
111 See Richard Fallon, The Ideologies of Federal Courts Law, 74 U. Va. L. Rev. 1141, (1988) (discussing the shifting political identification of "federalist" and "nationalist" positions in Federal Courts law).
112 Justice Scalia's dissent in Smith v. United States, 113 S. Ct. 2050, 2060 - 61 (1993), as discussed above at page 18, exemplifies his willingness to follow plain meaning even when it leads away from traditionally "conservative" viewpoints. For additional examples, see Eskridge, supra note 29, at 669 n.193.
113 See Shapiro, supra note 4, at TAN 60 (discussing the broad interpretation occasioned by the Court's application of the plain meaning rule in the "snail darter" case).
114 See Weekley, supra note 7, at 787 - 88 ("We now know that the duty of the lexicographer is to record and not to criticize); cf. Evans, supra note , at 58 (explaining that modern linguists recognize that dictionaries can only hope to serve as accurate reflections of the state of spoken language at a particular time).
115 Easterbrook, supra note 33, at 67.
116 See Ronald A. Wells, Dictionaries and the Authoritarian Tradition 7 passim (1973) ("Almost since its beginning, the English dictionary has been linked culturally with attitudes which have been fundamentally opposed to linguistic change.").
117 See Evans, supra note 90, at 58.
118 See Wilson Follett, Sabotage in Springfield, Atlantic Monthly, Jan. 1962, at 73 ("Webster III has thrust upon us a dismaying assortment of the questionable, the perverse, the unworthy, and the downright outrageous.").
119 See Shapiro, supra note 4, at TAN 148 ("The tilt toward continuity . . . is not anti-legislation or anti-legislature. It is -- or at least it can be -- the highest form of cooperation with the legislative enterprise.").
120 Although they are designed to be purely descriptive, dictionaries influence current usage by ratifying the acceptability of new terms. See Follett, supra note 118, at 77.
121 According to John Dewey, the dictionary meanings of words are only "potential rather than actual until they are linked to other words." John Dewey, Logic 349 (1938). For examples of other theorists emphasizing the importance of interpretive context to meaning, see Reed Dickerson, The Interpretation and Application of Statutes 103 & n.2, 105 (1975); C.K. Ogden & I.A. Richards, The Meaning of Meaning 9 - 10 (1989); and Ludwig Wittgenstein, Philosophical Investigations 181e - 83e (G.E.M. Anscombe trans., 4th ed. 1976).
122 Cass Sunstein encapsulates this point well:
The meaning of any "text" is a function not of the bare words, but of its context and the relevant culture. Because of the context, words sometimes have a meaning quite different from what might be found in Webster's or the Oxford English Dictionary. Courts do not and should not "make a fortress out of the dictionary." Cass R. Sunstein, Principles, Not Fictions, 57 U. Chi. L. Rev. 1247, 1247 (1990) (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945)); see also William T. Mayton, Law Among the Pleonasms: The Futility and Aconstitutionality of Legislative History in Statutory Interpretation, 41 Emory L.J. 113, 122 (1992) ("In statutory interpretation, then, the dictionary may be a starting point, but it is the relation of the word to other words, by grammatical conventions, that does much of the work of establishing meaning."); Randolph, supra note 6 at 73 ("A statute, however, cannot be understood merely by understanding the words in it.").
123 Hart & Sacks supra note 22, at 1221. More recent commentators would take issue with Hart and Sacks's placement of canons of construction in the same category of dictionaries. See, e.g., Shapiro, supra note 4, at TAN 102 - 150. 124 Dickerson, supra note 121, at 111 (explaining that contextual analysis allows courts to choose appropriate meanings from a list of possible meanings). 125 See Sunstein, supra note 29, at 417 ("Moreover, reliance on ordinary or dictionary definitions, without reference to context, will sometimes lead to interpretive blunders."). For an example of the way over-reliance on dictionaries can warp the interpretive process, see Jennifer Grace Redmond, Note, Redefining Race in Saint Francisco College v. Al-Khazraji and Shaare Congregation v. Cobb: Using Dictionaries Instead of the Thirteenth Amendment, 42 Vand. L. Rev. 209, 210 - 17, 224 - 28 (1989).
126 149 U.S. 304 (1893). The majority opinion in Nix staked out a more limited role for dictionaries than the current Court has employed. See supra note 20.
127 See id. at 306.
128 Contemporary dictionaries still define the tomato as a fruit. See Webster's Third New International Dictionary 2406 (1986) (defining the tomato as the fruit of a certain kind of plant).
129 Nix, 149 U.S. at 307.
130 Cf. Albert Kiralfy, The Dictionary and the Law 10 J. Legal Hist. 389, 390 - 91 (1989) (quoting several British jurists refusing to use dictionaries on the grounds that they bore no relationship to the ordinary meaning of statutes). 131 Of course, contested cases never have unambiguously "correct" outcomes. In both Chapman and Arave, the dictionary-based approach garnered a majority of Justices of the Supreme Court, and both decisions are defensible on other textual and policy grounds. However, the results seem to conflict with the "ordinary meaning" that the Court's turn to dictionaries ostensibly is designed to uncover.
132 111 S. Ct. 1919 (1991).
133 See id. at 1926.
134
135 113 S. Ct. 1534 (1993).
136 See id. at 1540 - 41.
137 Id. at 1541.
138 See id. at 1547 (Blackmun, J., dissenting).
139
140 See Mashaw, supra note 110, at 829.
141 See supra p. 35 & n.121.
142 Cf. Nixon v. United States, 113 S. Ct. 732, 736 (1993) (defining "sole").
143 Wittgenstein, supra note 121, at 23.
144 Solan, supra note 6, at 53; see also Lieber, supra note 88, at 33.
145 Id.
146 This inherent uncertainty in language may be one reason judges are drawn to dictionaries. See Weis, supra note 6, at 971. However, dictionaries do not eliminate linguistic uncertainty. See Randolph, supra note 6, at 72.
147 See Hart & Sacks, supra note 22, at 1220 ("The editors of dictionaries are never victims of the one-word, one-meaning fallacy."). Their more modest goal is to identify and illustrate commonly accepted usages as clearly as possible.
148 Major unabridged dictionaries, such as Webster's Third New International Dictionary and The Oxford English Dictionary support their definitions with historical examples of the usage of words in various contexts. See Evans, supra note 90, at 62. This method may be valuable for the lexicographic enterprise of demonstrating the actual usage of words, but it is less helpful to the jurist intent on applying a word to specific facts:
Of neither Webster's nor [The Oxford English Dictionary] can it be said that a contemporary person or legislature must have intended any of the meanings given. If this cannot be affirmed, then it may follow that the linchpin of justification for consulting a dictionary formally or informally in the judicial process can be questioned.
Rynd, supra note 91, at 715.
149 Hart & Sacks, supra note 22, at 1220.
150 113 S. Ct. 2050 (1993).
151 See id. at 2050 (Scalia, J., dissenting); supra p. 18. Justice Scalia used dictionaries in a similarly sensitive way in Moskal v. United States, 498 U.S. 103 (1990). See id. at 119 - 26 (Scalia, J., dissenting).
152 See Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945).




Copyright © 1995, 1996 by Kevin Werbach. Last updated December 31, 1995.
State COnstitutions

​Most states have two constitutions. In California they are:

     California 1849 Constitution by the People of California
     California 1879 Constitution Approved by vote of the citizens of the United States resident in California but never approved by the Congress

Internet Link to California Code

California Code of Regulations (CCR)

Internet Link to California Rules of Court (Also, remember there are court "local rules" in each county, and each judge has his courtroom rules.)

California Jurisprudence, Vol. 7 Courts of Record
​
National Constitution 
Constitution for the United States of America text version
     4,543 words, including the signatures but not the certificate on the interlineations
     Takes about half an hour to read. Link to Constitution at National Archives

Constitution of the United States of America, Analysis and Interpretation, June 01, 2014 19MB
Constitution of the United States of America, Analysis and Interpretation, June 26, 2013 21MB
     THE authoritative source of information from the federal government's point of view.
     2830 pages of mostly honest information about our Constitution.
     (Common Law removed from index.)
     Internet Link to Current edition at Senate website.

Internet Link to United States Code

The United States Statutes at Large is the collection of laws passed by the United States Congress, in chronological order.
It is typically referred to as the Statutes at Large, and is the permanent collection of all laws and resolutions enacted
during each session of Congress.
     United States Statutes at Large, 1951-
     United States Statutes at Large, 1789-1950
     Statute must be certified as constitutional by SCOTUS before enforcement.

Federal Rules of Civil/Criminal Procedure
     Civil   Criminal

2013 Benchbook for USDC Judges

Act of Confederation--The original United States of America, before the present day Constitution
Northwest Ordinance, July 13, 1787
NOTARY PUBLIC
People vs. citizens
Misc Essays
Encryption, Cell Phone
Alleged Police Bias Debunked
Rats! Stop Snitches!
Citizenship, Army TM-2000-25 (1928)
Positive Law Codification explained
Positive Law Brochure
American Citizen's Manual (1840)
PDF RTF Church Failing to Do Its Job
The Pied Pipers of Babylon
Report from Iron Mountain explains why war is necessary
Jerry and Joe Kane What really happened.
The Empire of the City
How to do a Summary Judgment
Letters to Authorities
Clobber Bureaucrats A Spiritual Economics Book
Private Atty General What it Means
Reversing Wrongful Convictions
Passports: Your Papers, Please
The Errant Sovereign's Handbook
Pre-crime Detection
Acceptance for Value
Common law background from before 1176
America's Christian Heritage
Castle Doctrine...Your right to be left alone. Clinton should not be impeached because...
Declaration of Independence -- analysis of style
Origins of the Electoral College -- explanation and history
Electoral College -- Mathematical proof Electoral College prevents dictatorship
Electoral College -- Danger of Attacks on Electoral College
     "Those who cast the votes decide nothing;
     those who count the votes decide everything."
     Josef Stalin
The American Passport (1898)
The Greenwood Position -- Summary of the year 2000 presidential election
Trusts -- What are they. Suggested forms.
Dictionaries in Supreme Court decisions
Rules for changing a Republic into a Monarchy -- by Freneau, 1792--compare with today
U.S. Debt Clock

How to Write -- Improve your general writing ability
How to Write a Cover Letter
How to Write a Legal Memo
How to Write for Judges

The Necessity and Usefullness of Laws -- Written 1708 by request of the grand jury

Petitions for discretionary review--suggestions from the judge who reviews the requests
No Treason, The Constitution of No Authority by Lysander Spooner
Texas Trial Lawyers Association -- a good source of essays
Lawyers Destroying America
What is a Nazi? -- Letter written by one who was there. Compare with today
Right to Keep & Bear Arms brief filed with Supreme Court re DC gun control case
The fiction of Sovereign Immunity
Necktie Note
Habeas Corpus, Common Law Remedy thru_12_point_prism_construct
MISCELLANEOUS
Conversation with ChatGPT 3.5 re sovereignty
Miscellaneous Resources
Statement re Changes to Judge Complaint Procedure
Administrative Court Illegal
Martial Law
London Bobby - a lesson lost in America
Army ATP 3-39.33 Civil Disturbances Manual 
     Interpretation 1       Interpretation 2
Army FM 3-06 Urban Operations
05-26-13 NSA Surveillance Word List

Common Law Lien example

Proposed Passport Requirements - comments Proposed Requirements Proposed Application
Cops Use Scanner to Steal Cellphone Data

Common Law Marriage

Digital-photos Can Reveal Your Location
Public Conduct Cautionary advice about your public conduct
REPRIEVES, PARDONS AND COMMUTATIONS Court-certified rehabilitation for ex-convicts--rights restored
Reece Hearings The real story behind the demolition of America by tax-exempt foundations (146MB download)

Horror of Vaccinations Addressed to president in 1920

Argentina
Cracking the Code by Pete Hendrickson
Federal Mafia by Irwin Schiff

Constitution for the United States of America protects access to common law
Constitution of the United States of America, Analysis and Interpretation
     THE authoritative source of information from the government's point of view.
     Over 2000 pages of mostly honest information about our Constitution. (Common Law removed from index).

Limited Immunity -- for public officials

Opinions about the Elian Gonzalez fiasco: 1. from the People or 2. from the government
Independent "unlicensed contractor" agent agreement
14 Federal Ethics -- for federal employees.

Cato World Human Freedom Index
Corruption Index -- How honest is your government?
Quality of Life Index -- Which country has the highest quality of life?
2014 Countries most at risk of coup

The trial of Jesus -- a 20th Century judge's critique

Man too smart for police force -- Does this reveal the real problem?

Act of Confederation--The original United States of America, before the present day Constitution
Northwest Ordinance, July 13, 1787

Positive Law

Words of Encouragement for those honorably in jail because they tried to exercise their rights.

Arsenic and the nobility

CIA discloses what it considers inconceivable

Edward Mandel House: How to control the people
William Casey: How we will know our disinformation campaign is complete

Government surveilance: An exciting new export
FBI Flyer
FBI deputizes business: Proud to be a domestic snitch
FBI snitch instructions to surplus stores
Solon on social justice; and other gems of wisdom
Wire taps? -- The paranoids were right: Yep, they're listening
Spy Interactive -- What's happening behind 2-way interactive TV
Black Programs -- It is now officially OK to lie to the public

General Smedley Butler -- He declined offer in 1932 for dictatorship of U.S.

London Times says, USA must be destroyed

Newstates of America -- Proposed new constitution for U.S.A. -- bye bye freedomCicero -- Power and Law are mutually contentious

Gun Control Books -- Gun control research resources
Columbine High School Massacre -- Victim's commentary

Death by government -- In the 20th century more people murdered by their own governments than killed by all other unnatural causes combined.
Death by Government -- More about the book.
Gun Control effect.

Attorneys -- Are they really needed? See this survey
Lawyers -- Opinion by H. L. Menchen
13 Famous lawyers -- All but one never went to law school
Attorney's License requirement and Oath of Office--No attorney fulfills this requirement.

Disciples' Destinies -- The prices they paid for their idealism.

Countries bombed -- by the U.S. since World War II

Found? Could this be the REAL Supreme Court of the United States?

Buffalo Hunting the way the government likes it
​
Domestic Terrorism Lexicon by Homeland Security
The Devil and Daniel Webster
​A short story originally published in
The Saturday Evening Post
October 24, 1936
by Stephen Vincent Benét
(1898-1943)


Daniel Webster Photos
  • I
[13]

IT'S A STORY THEY TELL IN THE BORDER COUNTRY,
where Massachusetts joins Vermont and New
Hampshire.

    Yes, Dan'l Webster's dead-or, at least, they
buried him. But every time there's a thunder
storm around Marshfield, they say you can hear
his rolling voice in the hollows of the sky. And
they say that if you go to his grave and speak
loud and clear, "Dan'l Webster-Dan'l Web-
ster!" the ground'll begin to shiver and the trees
begin to shake. And after a while you'll hear a
deep voice saying, "Neighbor, how stands the
Union?" Then you better answer the Union

 [14]

stands as she stood, rock-bottomed and copper
sheathed, one and indivisible, or he's liable to
rear right out of the ground. At least, that's
what I was told when I was a youngster.

   You see, for a while, he was the biggest man
in the country. He never got to be President,
but he was the biggest man. There were thou-
sands that trusted in him right next to God
Almighty, and they told stories about him and
all the things that belonged to him that were
like the stories of'patriarchs and such. They said,
when he stood up to speak, stars and stripes came
right out in the sky, and once he spoke against
a river and made it sink into the ground. They
said, when he walked the woods with his fishing
rod, Killall, the trout would jump out of the
streams right into his pockets, for they knew it
was no use putting up a fight against him; and,
when he argued a case, he could turn on the
harps of the blessed and the shaking of the earth

 [15]

underground. That was the kind of man he was,
and his big farm up at Marshfield was suitable
to him. The chickens he raised were all white
meat down through the drumsticks, the cows
were tended like children, and the big ram he
called Goliath had horns with a curl like a
morning-glory vine and could butt through an
iron door. But Dan'l wasn't one of your gentle-
men farmers; he knew all the ways of the land,
and he'd be up by candlelight to see that the
chores got done. A man with a mouth like a
mastiff, a brow like a mountain and eyes like
burning anthracite-that was Dan'l Webster in
his prime. And the biggest case he argued never
got written down in the books, for he argued it
against the devil, nip and tuck and no holds
barred. And this is the way I used to hear it told.

   There was a man named Jabez Stone, lived at
Cross Corners, New Hampshire. He wasn't a
bad man to start with, but he was an unlucky
 
 

 [16]

man. If he planted corn, he got borers; if he
planted potatoes, he got blight. He had good
enough land, but it didn't prosper him; he had
a decent wife and children, but the more chil-
dren he had, the less there was to feed them. If
stones cropped up in his neighbor's field, boul-
ders boiled up in his; if he had a horse with the
spavins, he'd trade it for one with the staggers
and give something extra. There's some folks
bound to be like that, apparently. But one day
Jabez Stone got sick of the whole business.

   He'd been plowing that morning and he'd just
broke the plowshare on a rock that he could
have sworn hadn't been there yesterday. And, as
he stood looking at the plowshare, the off horse
began to cough-that ropy kind of cough that
means sickness and horse doctors. There were
two children down with the measles, his wife
was ailing, and he had a whitlow on his thumb.
It was about the last straw for Jabez Stone. "I

 [17]

vow," he said, and he looked around him kind
of desperate-"I vow it's enough to make a man
want to sell his soul to the devil And I would,
too, for two centsl"

   Then he felt a kind of queerness come over
him at having said what he'd said; though, natu-
rally, being a New Hampshireman, he wouldn't
take it back. But, all the same, when it got to be
evening and, as far as he could see, no notice
had been taken, he felt relieved in his mind, for
he was a religious man. But notice is always
taken, sooner or later, just like the Good Book
says. And, sure enough, next day, about supper
time, a soft-spoken, dark-dressed stranger drove
up in a handsome buggy and asked for Jabez
Stone.

   Well, Jabez told his family it was a lawyer,
come to see him about a legacy. But he knew
who it was. He didn't like the looks of the
stranger, nor the way he smiled with his teeth.

 [18]

   They were white teeth, and plentiful-some say
they were filed to a point, but I wouldn't vouch
for that. And he didn't like it when the dog took
one look at the stranger and ran away howling,
with his tail between his legs. But having passed
his word, more or less, he stuck to it, and they
went out behind the barn and made their bar-
gain. Jabez Stone had to prick his finger to sign,
and the stranger lent him a silver pin. The
wound healed clean, but it left a little white
scar.


 
   [21]

AFTER THAT, ALL OF A SUDDEN, THINGS BEGAN TO
pick up and prosper for Jabez Stone. His cows
got fat and his horses sleek, his crops were the
envy of the neighborhood, and lightning might
strike all over the valley, but it wouldn't strike
his barn. Pretty soon, he was one of the pros-
perous people of the county; they asked him to
stand for selectman, and he stood for it; there
began to be talk of running him for state senate.
All in all, you might say the Stone family was as
happy and contented as cats in a dairy. And so
they were, except for Jabez Stone.

 [22]

    He'd been contented enough, the first few
years. It's a great thing when bad luck turns;
it drives most other things out of your head.
True, every now and then, especially in rainy
weather, the little white scar on his finger would
give him a twinge. And once a year, punctual
as clockwork, the stranger with the handsome
buggy would come driving by. But the sixth
year, the stranger lighted, and, after that, his
peace was over for Jabez Stone.

   The stranger came up through the lower field,
switching his boots with a cane-they were hand-
some black boots, but Jabez Stone never liked
the look of them, particularly the toes. And,
after he'd passed the time of day, he said, "Well,
Mr. Stone', you're a hummer! It's a very pretty
property you've got here, Mr. Stone."

   "Well, some might favor it and others might
not," said Jabez Stone, for he was a New Hamp-
shireman.

 [23]

   "Oh, no need to decry your industryl " said the
stranger, very easy, showing his teeth in a smile.
"After all, we know what's been done, and it's
been according to contract and specifications.
So when-ahem-the mortgage falls due next
year, you shouldn't have any regrets."

   "Speaking of that mortgage, mister," said
Jabez Stone, and he looked around for help to
the earth and the sky, "I'm beginning to have
one or two doubts about it."

    "Doubts?" said the stranger, not quite so
pleasantly.

   "Why, yes," said Jabez Stone. "This being
the U. S. A. and me always having been a reli-
gious man." He cleared his throat and got bolder.

   "Yes, sir," he said, "I'm beginning to have con-
siderable doubts as to that mortgage holding in
court."

   "There's courts and courts," said the stranger,
clicking his teeth. "Still, we might as well have a

 [24]

look at the original document." And he hauled
out a big black pocketbook, full of papers.
"Sherwin, Slater, Stevens, Stone," he muttered.
"I, Jabez Stone, for a term of seven years-Oh,
it's quite in order, I think."

   But Jabez Stone wasn't listening, for he saw
something else flutter out of the black pocket
book. It was something that looked like a moth,
but it wasn't a moth. And as Jabez Stone stared
at it, it seemed to speak to him in a small sort of
piping voice, terrible small and thin, but ter-
rible human.

   "Neighbor Stone!" it squeaked. "Neighbor
Stone! Help me! For God's sake, help
me! "

    But before Jabez Stone could stir hand or
foot, the stranger whipped out a big bandanna
handkerchief, caught the creature in it, just like
a butterfly, and started tying up the ends of the
bandanna.

 [25]

    "Sorry for the interruption," he said. "As I
was saying-"

   But Jabez Stone was shaking all over like a
scared horse.

   "That's Miser Stevens' voice!" he said, in a
croak. "And you've got him in your handker-
chief! "

   The stranger looked a little embarrassed.

   "Yes, I really should have transferred him to
the collecting box," he said with a simper. "but
there were some rather unusual specimens there
and I didn't want them crowded. Well, well,
these little contretemps will occur."

    "I don't know what you mean by contertan,"
said Jabez Stone, "but that was Miser Stevens'
voice! And he ain't dead! You can't tell me he
is! He was just as spry and mean as a woodchuck,
Tuesdayl"

   "In the midst of life-" said the stranger, kind
of pious. "Listen!" Then a bell began to toll in

 [26]

the valley and Jabez Stone listened, with the
sweat running down his face. For he knew it
was tolled for Miser Stevens and that he was
dead.

   "These long-standing accounts," said the
stranger with a sigh; "one really hates to close
them. But business is business."

   He still had the bandanna in his hand, and
Jabez Stone felt sick as he saw the cloth struggle
and flutter.

   "Are they all as small as that?" he asked
hoarsely.

   "Small?" said the stranger. "Oh, I see what
you mean. Why, they vary." He measured Jabez
Stone with his eyes, and his teeth showed.
"Don't worry, Mr. Stone," he said. "You'll go
with a very good grade. I wouldn't trust you
outside the collecting box. Now, a man like
Dan'l Webster, of course-well, we'd have to
build a special box for him, and even at that, I

 [27]

imagine the wing spread would astonish you.
He'd certainly be a prize. I wish we could see
our way clear to him. But, in your case, as I was
saying-"

   "Put that handkerchief awayl" said Jabez
Stone, and he began to beg and to pray. But the
best he could get at the end was a three years'
extension, with conditions.

   But till you make a bargain like that, you've
got no idea of how fast four years can run. By
the last months of those years, Jabez Stone's
known all over the state and there's talk of run-
ning him for governor - and it's dust and ashes
in his mouth. For every day, when he gets up,
he thinks, "There's one more night gone," and
every night when he lies down, he thinks of the
black pocketbook and the soul of Miser Stevens,
and it makes him sick at heart. Till, finally, he
can't bear it any longer, and, in the last days of
the last year, he hitches his horse and drives

 [28]

off to seek Dan'l Webster. For Dan'l was born
in New Hampshire, only a few miles from Cross
Corners, and it's well known that he has a par-
ticular soft spot for old neighbors.


 
   [31]

IT WAS EARLY IN THE MORNING WHEN HE GOT TO
Marshfield, but Dan'l was up already, talking
Latin to the farm hands and wrestling with the
ram, Goliath, and trying out a new trotter and
working up speeches to make against John C.
Calhoun. But when he heard a New Hampshire
man had come to see him, he dropped every
thing else he was doing, for that was Dan'l's
way. He gave Jabez Stone a breakfast that five
men couldn't eat, went into the living history of
every man and woman in Cross Corners, and
finally asked him how he could serve him.

 [32]

   Jabez Stone allowed that it was a kind of
mortgage case.

   "Well, I haven't pleaded a mortgage case in
a long time, and I don't generally plead now,
except before the Supreme Court," said Dan'l,
"but if I can, I'll help you."

   "Then I've got hope for the first time in ten
years," said Jabez Stone, and told him the de-
tails.

   Dan'l walked up and down as he listened,
hands behind his back, now and then asking a
question, now and then plunging his eyes at the
floor, as if they'd bore through it like gimlets.
When Jabez Stone had finished, Dan'l puffed
out his cheeks and blew. Then he turned to
Jabez Stone and a smile broke over his face like
the sunrise over Monadnock.

   "You've certainly given yourself the devil's
own row to hoe, Neighbor Stone," he said, "but
I'll take your case."

 [33]

   "You'll take it?" said Jabez Stone, hardly dar-
ing to believe.

   "Yes," said Dan'l Webster. "I've got about
seventy-five other things to do and the Missouri
Compromise to straighten out, but I'll take your
case. For if two New Hampshiremen aren't a
match for the devil, we might as well give the
country back to the Indians."

   Then he shook Jabez Stone by the hand and
said, "Did you come down here in a hurry?"

"Well, I admit I made time," said Jabez
Stone.

   "You'll go back faster," said Dan'l Webster,
and he told 'em to hitch up Constitution and
Constellation to the carriage. They were matched
grays with one white forefoot, and they stepped
like greased lightning.

   Well, I won't describe how excited and pleased
the whole Stone family was to have the great
Dan'l Webster for a guest, when they finally got

 [34]

 there. Jabez Stone had lost his hat on the way,
blown off when they overtook a wind, but he
didn't take much account of that. But after sup-
per he sent the family off to bed, for he had most
particular business with Mr. Webster. Mrs.
Stone wanted them to sit in the front parlor, but
Dan'l Webster knew front parlors and said he
preferred the kitchen. So it was there they sat,
waiting for the stranger, with a jug on the table
between them and a bright fire on the hearth -
the stranger being scheduled to show up on the
stroke of midnight, according to specification.

     Well, most men wouldn't have asked for bet-
ter company than Dan'l Webster and a jug. But
with every tick of the clock Jabez Stone got
sadder and sadder. His eyes roved round, and
though he sampled the jug you could see he
couldn't taste it. Finally, on the stroke of 11:30
he reached over and grabbed Dan'l Webster by
the arm.

 [35]

    "Mr. Webster, Mr. Webster!" he said, and
his voice was shaking with fear and a desperate
courage. "For God's sake, Mr. Webster, harness
your horses and get away from this place while
you can!"

   "You've brought me a long way, neighbor, to
tell me you don't like my company," said Dan'l
Webster, quite peaceable, pulling at the jug.

   "Miserable wretch that I am!" groaned Jabez
Stone. "I've brought you a devilish way, and
now I see my folly. Let him take me if he wills.
I don't hanker after it, I must say, but I can stand
it. But you're the Union's stay and New Hamp-
shire's pride! He mustn't get you, Mr. Webster!
He mustn't get you!"

   Dan'l Webster looked at the distracted man,
all gray and shaking in the firelight, and laid a
hand on his shoulder.

   "I'm obliged to you, Neighbor Stone," he said
gently. "It's kindly thought of. But there's a jug

 [36]

 on the table and a case in hand. And I never left
a jug or a case half finished in my life."

    And just at that moment there was a sharp
rap on the door

     "Ah," said Dan'l Webster, very coolly, "I
thought your clock was a trifle slow, Neighbor
Stone." He stepped to the door and opened it.
"Come in" he said.

    The stranger came in -- very dark and tall he
looked in the firelight. He was carrying a box
under his arm-a black, japanned box with little
air holes in the lid. At the sight of the box, Jabez
Stone gave a low cry and shrank into a corner of
the room.

     "Mr. Webster, I presume," said the stranger,
very polite, but with his eyes glowing like a fox's
deep in the woods.

    "Attorney of record for Jabez Stone," said
Dan'l Webster, but his eyes were glowing too.
"Might I ask your name?"

 [37]

    “I’ve gone by a good many,” said the stranger
carelessly. “Perhaps Scratch will do for the eve-
ning. I’m often called that in these regions.”

    Then he sat down at the table and poured him-
self a drink from the jug. The liquor was cold
in the jug, but it came steaming into the glass.

    “And now,” said the stranger, smiling and
showing his teeth, “I shall call upon you, as a
law-abiding citizen, to assist me in taking pos-
session of my property.”

    Well, with that the argument began -- and it
went hot and heavy. At first, Jabez Stone had
a flicker of hope, but when he saw Dan’l Web-
ster being forced back at point after point, he
just sat scrunched in his corner, with his eyes on
that japanned box. For there wasn’t any doubt
as to the deed or the signature -- that was the
worst of it. Dan’l Webster twisted and turned
and thumped his fist on the table, but he couldn’t
get away from that. He offered to compromise

 [38]

 the case; the stranger wouldn't hear of it. He
pointed out the property had increased in value,
and state senators ought to be worth more; the
stranger stuck to the letter of the law. He was a
great lawyer, Dan'l Webster, but we know who's
the King of Lawyers, as the Good Book tells us,
and it seemed as if, for the first time, Dan'l
Webster had met his match.

    Finally, the stranger yawned a little. "Your
spirited efforts on behalf of your client do you
credit, Mr. Webster," he said, "but if you have
no more arguments to adduce, I'm rather pressed
for time-" and Jabez Stone shuddered.

    Dan'l Webster's brow looked dark as a thun-
dercloud. "Pressed or not, you shall not have
this man!" he thundered. "Mr. Stone is an
American citizen, and no American citizen may
be forced into the service of a foreign prince.
We fought England for that in ‘12 and we’ll
fight all hell for it again!"

 [39]

    "Foreign?" said the stranger. "And who calls
me a foreigner?"

   "Well, I never yet heard of the dev -- of your
claiming American citizenship," said Dan'l Web-
ster with surprise.

   "And who with better right?" said the
stranger, with one of his terrible smiles. "When
the first wrong was done to the first Indian, I
was there. When the first slaver put out for the
Congo, I stood on her deck. Am I not in your
books and stories and beliefs, from the first set-
tlements on? Am I not spoken of, still, in every
church in New England? 'Tis true the North
claims me for a Southerner, and the South for a
Northerner, but I am neither. I am merely an
honest American like yourself-and of the best
descent-for, to tell the truth, Mr. Webster,
though I don't like to boast of it, my name is
older in this country than yours."

   "Aha!" said Dan'l Webster, with the veins

 [40]

 standing out in his forehead. "Then I stand on
the Constitution! I demand a trial for my client!"

   "The case is hardly one for an ordinary court,"
said the stranger, his eyes flickering. "And, in-
deed, the lateness of the hour-"

    "Let it be any court you choose, so it is an
American judge and an American jury!" said
Dan'l Webster in his pride. "Let it be the quick
or the dead; I'll abide the issue!"

   "You have said it," said the stranger, and
pointed his finger at the door. And with that,
and all of a sudden, there was a rushing of wind
outside and a noise of footsteps. They came, clear
and distinct, through the night. And yet, they
were not like the footsteps of living men.

   "In God's name, who comes by so late?" cried
Jabez Stone, in an ague of fear.

   "The jury Mr. Webster demands," said the
stranger, sipping at his boiling glass. "You must
pardon the rough appearance of one or two;
they will have come a long way."
 
 


 
   [43]

AND WITH THAT THE FIRE BURNED BLUE AND THE
door blew open and twelve men entered, one
by one.

   If Jabez Stone had been sick with terror be-
fore, he was blind with terror now. For there
was Walter Butler, the loyalist, who spread fire
and horror through the Mohawk Valley in the
times of the Revolution; and there was Simon
Girty, the renegade, who saw white men burned
at the stake and whooped with the Indians to
see them burn. His eyes were green, like a cata-
mount's, and the stains on his hunting shirt did

 [44]

not come from the blood of the deer. King Philip
was there, wild and proud as he had been in
life, with the great gash in his head that gave
him his death wound, and cruel Governor Dale,
who broke men on the wheel. There was Morton
of Merry Mount, who so vexed the Plymouth
Colony, with his flushed, loose, handsome face
and his hate of the godly. There was Teach, the
bloody pirate, with his black beard curling on
his breast. The Reverend John Smeet, with his
strangler's hands and his Geneva gown, walked
as daintily as he had to the gallows. The red
print of the rope was still around his neck, but
he carried a perfumed handkerchief in one hand.
One and all, they came into the room with the
fires of hell still upon them, and the stranger
named their names and their deeds as they came,
till the tale of twelve was told. Yet the stranger
had told the truth-they had all played a part
in America.

 [45]

    "Are you satisfied with the jury, Mr. Web-
ster?" said the stranger mockingly, when they
had taken their places.

   The sweat stood upon Dan'l Webster's brow,
but his voice was clear.

   "Quite satisfied," he said. "Though I miss
General Arnold from the company."

    "Benedict Arnold is engaged upon other busi-
ness," said the stranger, with a glower. "Ah, you
asked for a justice, I believe."

    He pointed his finger once more, and a tall
man, soberly clad in Puritan garb, with the burn-
ing gaze of the fanatic, stalked into the room
and took his judge's place.

   "Justice Hathorne is a jurist of experience,"
said the stranger. "He presided at certain witch
trials once held in Salem. There were others
who repented of the business later, but not he."

   "Repent of such notable wonders and under-
takings?" said the stern old justice. "Nay, hang

 [46]

 them-hang them all!" And he muttered to him-
self in a way that struck ice into the soul of Jabez
Stone.

    Then the trial began, and, as you might ex-
pect, it didn't look anyways good for the defense.
And Jabez Stone didn't make much of a witness
in his own behalf. He took one look at Simon
Girty and screeched, and they had to put him
back in his corner in a kind of swoon.

    It didn't halt the trial, though; the trial went
on, as trials do. Dan'l Webster had faced some
hard juries and hanging judges in his time, but
this was the hardest he'd ever faced, and he knew
it. They sat there with a kind of glitter in their
eyes, and the stranger's smooth voice went on
and on. Every time he'd raise an objection, it'd
be "Objection sustained," but whenever Dan'l
objected, it'd be "Objection denied." Well, you
couldn't expect fair play from a fellow like this
Mr. Scratch.

 [47]

    It got to Dan'l in the end, and he began to
heat, like iron in the forge. When he got up to
speak he was going to flay that stranger with
every trick known to the law, and the judge and
jury too. He didn't care if it was contempt of
court or what would happen to him for it. He
didn't care any more what happened to Jabez
Stone. He just got madder and madder, think-
ing of what he'd say. And yet, curiously enough,
the more he thought about it, the less he was
able to arrange his speech in his mind.

 Till, finally, it was time for him to get up on
his feet, and he did so, all ready to bust out with
lightnings and denunciations. But before he
started he looked over the judge and jury for a
moment, such being his custom. And he noticed
the glitter in their eyes was twice as strong as
before, and they all leaned forward. Like hounds
just before they get the fox, they looked, and
the blue mist of evil in the room thickened as

 [48]

 he watched them. Then he saw what he'd been
about to do, and he wiped his forehead, as a
man might who's just escaped falling into a pit
in the dark.

    For it was him they'd come for, not only Jabez
Stone. He read it in the glitter of their eyes and
in the way the stranger hid his mouth with one
hand. And if he fought them with their own
weapons, he'd fall into their power; he knew
that, though he couldn't have told you how. It
was his own anger and horror that burned in
their eyes; and he'd have to wipe that out or the
case was lost. He stood there for a moment, his
black eyes burning like anthracite. And then he
began to speak.

    He started off in a low voice, though you could
hear every word. They say he could call on the
harps of the blessed when he chose. And this
was-just as simple and easy as a man could talk.
But he didn't start out by condemning or revil-

 [49]

 ing. He was talking about the things that make
a country a country, and a man a man.

    And he began with the simple things that
everybody's known and felt-the freshness of a
fine morning when you're young, and the taste of
food when you're hungry, and the new day that's
every day when you're a child. He took them
up and he turned them in his hands. They were
good things for any man. But without freedom,
they sickened. And when he talked of those en-
slaved, and the sorrows of slavery, his voice got
like a big bell. He talked of the early days of
America and the men who had made those days.
It wasn't a spread-eagle speech, but he made you
see it. He admitted all the wrong that had ever
been done. But he showed how, out of the wrong
and the right, the suffering and the starvations,
something new had come. And everybody had
played a part in it, even the traitors.

    Then he turned to Jabez Stone and showed

 [50]

 him as he was-an ordinary man who'd had hard
luck and wanted to change it. And, because he'd
wanted to change it, now he was going to be
punished for all eternity. And yet there was good
in Jabez Stone, and he showed that good. He
was hard and mean, in some ways, but he was
a man. There was sadness in being a man, but it
was a proud thing too. And he showed what the
pride of it was till you couldn't help feeling it.
Yes, even in hell, if a man was a man, you'd
know it. And he wasn't pleading for any one
person any more, though his voice rang like an
organ. He was telling the story and the failures
and the endless journey of mankind. They got
tricked and trapped and bamboozled, but it was
a great journey. And no demon that was ever
foaled could know the inwardness of it-it took
a man to do that.


 
   [53]

 THE FIRE BEGAN TO DIE ON THE HEARTH AND THE
wind before morning to blow. The light was
getting gray in the room when Dan'l Webster
finished. And his words came back at the end
to New Hampshire ground, and the one spot of
land that each man loves and clings to. He
painted a picture of that, and to each one of that
jury he spoke of things long forgotten. For his
voice could search the heart, and that was his
gift and his strength. And to one, his voice was
like the forest and its secrecy, and to another
like the sea and the storms of the sea; and one
heard the cry of his lost nation in it, and another

 [54]

saw a little harmless scene he hadn't remem-
bered for years. But each saw something. And
when Dan'l Webster finished he didn't know
whether or not he'd saved Jabez Stone. But he
knew he'd done a miracle. For the glitter was
gone from the eyes of judge and jury, and, for
the moment, they were men again, and knew
they were men.

    "The defense rests," said Dan'l Webster, and
stood there like a mountain. His ears were still
ringing with his speech, and he didn't hear any
thing else till he heard judge Hathorne say,
"The jury will retire to consider its verdict."

    Walter Butler rose in his place and his face
had a dark, gay pride on it.

 "The jury has considered its verdict," he said,
and looked the stranger full in the eye. "We find
for the defendant, Jabez Stone."

    With that, the smile left the stranger's face,
but Walter Butler did not flinch.

 [55]

    "Perhaps 'tis not strictly in accordance with
the evidence," he said, "but even the damned
may salute the eloquence of Mr. Webster."

    With that, the long crow of a rooster split the
gray morning sky, and judge and jury were gone
from the room like a puff of smoke and as if they
had never been there. The stranger turned to
Dan'l Webster, smiling wryly. "Major Butler
was always a bold man," he said. "I had not
thought him quite so bold. Nevertheless, my
congratulations, as between two gentlemen."

    "I'll have that paper first, if you please," said
Dan'l Webster, and he took it and tore it into
four pieces. It was queerly warm to the touch.
"And now," he said, "I'll have you!" and his
hand came down like a bear trap on the stranger's
arm. For he knew that once you bested anybody
like Mr. Scratch in fair fight, his power on you
was gone. And he could see that Mr. Scratch
knew it too.

 [56]

    The stranger twisted and wriggled, but he
couldn't get out of that grip. "Come, come, Mr.
Webster," he said, smiling palely. "This sort of
thing is ridic-ouch!-is ridiculous. If you're
worried about the costs of the case, naturally, I'd
be glad to pay-"

    "And so you shall!" said Dan'l Webster, shak-
ing him till his teeth rattled. "For you'll sit right
down at that table and draw up a document,
promising never to bother Jabez Stone nor his
heirs or assigns nor any other New Hampshire
man till doomsdayl For any hades we want to
raise in this state, we can raise ourselves, with
out assistance from strangers."

    "Ouchl" said the stranger. "Ouch! Well, they
never did run very big to the barrel, but-ouch!
-I agree!"

    So he sat down and drew up the document.
But Dan'l Webster kept his hand on his coat
collar all the time.

 [57]

    "And, now, may I go?" said the stranger, quite
humble, when Dan'l'd seen the document was
in proper and legal form.

    "Go?" said Dan'l, giving him another shake.
"I'm still trying to figure out what I'll do with
you. For you've settled the costs of the case, but
you haven't settled with me. I think I'll take you
back to Marshfield," he said, kind of reflective.
"I've got a ram there named Goliath that can
butt through an iron door. I'd kind of like to
turn you loose in his field and see what he'd do."

    Well, with that the stranger began to beg and
to plead. And he begged and he pled so hum-
ble that finally Dan'l, who was naturally kind
hearted, agreed to let him go. The stranger
seemed terrible grateful for that and said, just
to show they were friends, he'd tell Dan'l's
fortune before leaving. So Dan'l agreed to that,
though he didn't take much stock in fortune-
tellers ordinarily.

 [58]

    But, naturally, the stranger was a little dif-
ferent. Well, he pried and he peered at the line
in Dan'l's hands. And he told him one thing and
another that was quite remarkable. But they
were all in the past.

    "Yes, all that's true, and it happened," said
Dan'l Webster. "But what's to come in the fu-
ture?"

    The stranger grinned, kind of happily, and
shook his head. "The future's not as you think
it," he said. "It's dark. You have a great ambi-
tion, Mr. Webster."

    "I have," said Dan'l firmly, for everybody
knew he wanted to be President.

    "It seems almost within your grasp," said the
stranger, "but you will not attain it. Lesser men
will be made President and you will be passed
over."

    "And, if I am, I'll still be Daniel Webster,"
said Dan'l. "Say on."

 [59]

    "You have two strong sons," said the stranger,
shaking his head. "You look to found a line.
But each will die in war and neither reach great-
ness.”

    "Live or die, they are still my sons," said Dan'l
Webster. "Say on."

    "You have made great speeches," said the
stranger. "You will make more."

    "Ah," said Dan'l Webster.

    "But the last great speech you make will turn
many of your own against you," said the stranger.
"They will call you Ichabod; they will call you
by other names. Even in New England some
will say you have turned your coat and sold your
country, and their voices will be loud against
you till you die."

    "So it is an honest speech, it does not matter
what men say," said Dan'l Webster. Then he
looked at the stranger and their glances locked.

 "One question," he said. "I have fought for

 [60]

 the Union all my life. Will I see that fight won
against those who would tear it apart?"

    "Not while you live," said the stranger, grimly,
"but it will be won. And after you are dead,
there are thousands who will fight for your cause,
because of words that you spoke."

    "Why, then, you long-barreled, slab-sided,
lantern-jawed, fortune-telling note shaver!" said
Dan'l Webster, with a great roar of laughter, "be
off with you to your own place before I put my
mark on you! For, by the thirteen original colo-
nies, I'd go to the Pit itself to save the Union!"

    And with that he drew back his foot for a kick
that would have stunned a horse. It was only the
tip of his shoe that caught the stranger, but he
went flying out of the door with his collecting
box under his arm.

    "And now," said Dan'l Webster, seeing Jabez
Stone beginning to rouse from his swoon, "let's
see what's left in the jug, for it's dry work talk-

 [61]

 ing all night. I hope there's pie for breakfast,
Neighbor Stone."

    But they say that whenever the devil comes
near Marshfield, even now, he gives it a wide
berth. And he hasn't been seen in the state of
New Hampshire from that day to this. I'm not
talking about Massachusetts or Vermont.
  • II
  • III
  • IV
  • V
​
This is by no means a complete list of the portraiture of Daniel Webster: such a collection would fill volumes. This is not even a complete list of portraits of Daniel Webster owned by Dartmouth College, for that list, too, is lengthy. The eventual display of all of Dartmouth's portraits of Daniel Webster remains a long-term goal, but that by itself would have occupied more time than the rest of this project. Therefore, it must remain a goal. The actuality, though, is not without its value. The following are selected portraits of Daniel Webster from the Dartmouth College collections (except for the first image, the location of which is unknown). They have been chosen either because of particular historical interest, artistic interest, or because they seem to be representative of Webster at a certain period of his life. These images are the property of Dartmouth College and are used by the permission of the Hood Museum of Art.



This is a photograph of a miniature which was the first portrait ever made of Daniel Webster, ca. 1805. It is, therefore, the most representative image we have of what Webster looked like in his youth. This piece's current location is unknown. The image was reproduced from Barber and Voss.
Painted by Robert Clayton Burns in 1962, this painting depicts Daniel Webster's argument of the famous Dartmouth College Case. It was given to the College by Henry N. Teague, Class of 1900, and currently hangs in Thayer Dining Hall. Since it is a modern portrait, it does not have the historical value of portraits painted during Webster's lifetime. It is a dramatic and powerful painting nonetheless, including the beginning of Webster's immortal words: "It is, sir, as I have said, a small College. And yet... "
This portrait, although unfinished, is a beautiful depiction of Webster as a young man, fresh from his victory in the Dartmouth College Case. Following the College's success, it was decided that portraits of the attorneys who represented the College be commissioned. For this task, Gilbert Stuart was chosen. Stuart was a well-known portraitist of the period who had passed his prime and was in his decline. His style and schedule were often sporadic, and portraits, such as this one, might sit unfinished indefinitely. Stuart later did a complete portrait of Webster, but its quality does not approach that of this unfinished work.
This sketch of pencil, charcoal, and chalk was drawn by David Claypool Johnston in 1831. Johnston was a well-known political cartoonist of his time, but this serious drawing of Webster shows no sign of cartoonish exaggeration; rather, it nearly perfectly depicts the remarkable features of Webster's face and head (Barber & Voss 32).
This is the famous "Black Dan" painting, which currently hangs on the second floor of the Baker Library. This painting was commissioned by George Shattuck in 1834 as part of an effort to fulfill the task originally entrusted to Gilbert Stuart: portraits of the attorneys who valiantly defended Dartmouth College in the Dartmouth College Case. Although the College already owned a Webster portrait, Shattuck commissioned a new one at his own expense. The result is the famed "Black Dan" painting by Francis Alexander, completed in 1835. This is the most powerful portrait of Webster in existence, and a copy was owned by Webster himself (althought the copy is infereior in quality and dramatic effect to the original) (ibid. 36).
This painting by Joseph Goodhue Chandler is undated. It depicts Webster with the Bunker Hill Monument in the background. Webster spoke at the laying of the cornerstone of that monument, and again at its dedication. He is shown holding a copy of the Constitution in his hand, evidence of his recognition as the "Expounder of the Constitution."
"Through the courts, encouraging the government to obey the law."