Original public meaning at a superficial glance is a more promising method of constitutional interpretation than original intention and original understanding. It would have the Supreme Court use the original meaning of the words and phrases in the Constitution to interpret it. This interpretive method has judges jiggling off to ancient dictionaries to find that original meaning, but problems still appear. Perhaps Samuel Johnson’s dictionary, published in 1755, was the most well-known one in the founding era, but Johnson’s definitions were often as prescriptive as descriptive. That is, in the opinionated Johnson’s opinion, he listed what a word should mean, not necessarily what it did mean to all or even most English speakers of the day. And, of course, what really should matter for the United States Constitution is what words meant in America, not England. This is made more difficult because the first relatively complete American dictionary of English was not published until 1828, some four decades after the Constitution was adopted.
Other difficulties with the ancient dictionary approach have also emerged. The Constitution includes the word “emoluments,” but what does that mean? In a lawsuit involving that seldom-considered part of the Constitution, the Justice Department said that it applies to benefits to the President from services rendered by the President in his official capacity. Georgetown Law Professor John Mikhail along with student Genevieve Bentz examined forty regular dictionaries and ten legal dictionaries published from 1604 to 1806 and concluded that 92% of the dictionaries had a broader definition of “emoluments” than what the Justice Department contended. But the remaining ones did have the definition that favored the president. How then should we determine the original meaning of “emoluments”? Do we say it was what the majority of the dictionaries say? Would we come to that same conclusion if the split had been 60-40? Are seventeenth century dictionaries really relevant? And language is always in flux. Was that true for “emoluments”? In a summary of Mikhail’s research, no dictionaries define the word as a benefit, profit, or advantage without linking it to an office, as the Justice Department sought to do, until 1759. But in that dictionary and ones published in 1761 and 1774, the definitions specifically say an “emolument” is a “profit from an office or employ.” Around the time of the Constitution, the meaning of the word might have been narrowing. Indeed, 20% of the dictionaries published between 1759 and 1787 when the Constitution was written had the definition of “emolument” Trump’s Justice Department favors. Can we really be positive that the office-linked definition was not the one being used in the Constitution? It turns out that even using a comprehensive set of dictionaries does not eliminate choices, and when choices must be made, personal values, predilections, and experiences may influence a judge’s selection.
(In a constitutional area where I have researched and published, Justice Antonin Scalia quoted Noah Webster’s dictionary for a definition of “witness” that supported the conclusion he reached [sought?]. That was only one of Webster’s definitions for that word, and some of the other definitions seemed to require a different result from Scalia’s. Scalia did not address the alternative definitions or explain why he had plucked the definition he had. But, while perhaps pretending otherwise, he had made a choice.)
(Continued August 27)