New York Magazine recently U.S. Supreme Court Justice Antonin Scalia. The discussion ranged across personal and professional issues. Prominent among Scalia's concerns was "the meaning of words." The issue of the meaning of words is important, especially in law, which is a combination of words and force.
As the interviewer put it, "Scalia is perhaps more responsible than any [other] American alive for the mainstreaming of conservative ideas about jurisprudence—in particular the principles of originalism (interpreting the Constitution as the framers intended it rather than as an evolving document) and textualism (that statutes must be interpreted based on their words alone)."
As Scalia put it, "Words have meaning. And their meaning doesn’t change."
The 2009 Supreme Court decision in Carcieri v. Salazar that derailed the effort of the Secretary of the Interior to take land into trust for the Narragansett is a good example of how a case may turn on the meaning of a single word.
Carcieri centered on the word "now" in the phrase "now under Federal jurisdiction," a definitions clause in the 1934 Indian Reorganization Act (IRA). The relevance of the definitions was to another section of the IRA giving power to the Secretary to acquire land for Indians.
The question was whether "now" refers to the time the Secretary takes action or the time the statute was enacted. Rhode Island governor, Donald Carcieri, initiated the challenge, and argued for the time of enactment. The state's position was that the Narragansett were not "under federal jurisdiction" in 1934 and that the Secretary therefore has no power to take land into trust for them.
The Interior Board of Indian Appeals, the federal District Court, and the federal Appeals Court all rejected the Rhode Island interpretation, ruling that "now" refers to the time of taking action, which was after the Narragansett were federally-recognized.
The Supreme Court reversed, stating that the word "now" was "unambiguous" in the IRA and could only mean time of enactment. In other words, "now" could only mean "then."
This brings us back to Justice Scalia. When, if ever, can we say that the meaning of a word "doesn't change"? What about words that are inherently ambiguous, like the word "reasonable," or ambiguity that arises from the context of a word?
Words are used in contexts. For example, when Congress enacts a law, the words in one section are related to words in other sections. In Carcieri, words in the definitions section—479—were related to powers defined in a different section—465—to take land into trust.
The lower courts analyzed the definitions of 479 in light of the power described in 465. They examined legislative history and Interior Department practice applying the IRA. The District Court found "no ambiguity on the face of the statute," and held that "the plain language of section 479" supports the power of the Interior Secretary to take land into trust for the Narragansett. The Appeals Court found that there was ambiguity in "text, context, and legislative history," and that "now" is not a word with only one meaning, and therefore deferred to the Secretary's "rational and consistent" application of the statute.
How did the Supreme Court reverse those decisions? The court stated that the "ordinary meaning of the word 'now' refers to the time of enactment, and said this meaning "is consistent with interpretations given 'now'" in other cases.
What the court didn't state—but the appeals court did—is that "Congress sometimes uses the word 'now' to refer to a time other than the moment of enactment." Each court—the Supreme and the Appeals—cited examples of the meaning of "now." But only the Supreme Court pretended there is no other meaning than the one it chose to affirm.
Let's see what section 479 actually says: "The term 'Indian' as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. … The term 'tribe' wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation."
Question: if "now" means date of enactment (June 18, 1934), why is a different specific date explicitly stated in another clause of the same sentence? It's at least strange that the statute would create a separate class of "Indian" defined by a seventeen-day period. That's an ambiguity, to which the Supreme Court responded by stating that the definition is "explicit and comprehensive."
Another question: since the definition of "tribe" does not refer to "now" or to the date of enactment, does the Secretary have different powers with regard to tribes? Another ambiguity, which the court responded to by stating that the definition of "tribe" refers to "Indian" and thus incorporates the prior definition. Here's a problem: the definition of Indian also refers to tribe, so the definition is actually circular, which only deepens the ambiguity, rather than clearing it up.
The fact that the Supreme Court failed to clear up the ambiguity of definitions becomes even clearer when we look at section 465, the land into trust provision: "The Secretary of the Interior is authorized…to acquire… any interest in lands, water rights, or surface rights to lands… for the purpose of providing land for Indians. … Title to any lands or rights acquired… shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired…."
Section 465 explicitly distinguishes between "Indian tribe" and an "individual Indian." The court responded to the deepening ambiguity of definitions by ignoring it, saying section 479 is "detailed and unyielding." So much for analysis.
Justice Scalia joined the majority opinion; but, if he is correct about the meaning of words, it should not have been necessary to explore ambiguities, because there aren't any. "Words have meaning. And their meaning doesn't change."
If I say that Scalia made a "nice" argument in his interview—and that the Supreme Court made a "nice" decision in Carcieri, do you know what I mean? You might say, "Sure. It was a respectable, appropriate, proper." And, if we use today's dictionary, you are right.
But, if we use a dictionary that goes back to the origins of "nice"—like the Oxford English Dictionary (OED)—you are wrong. The original meaning of "nice," dating from the 12th to 15th centuries, is diametrically opposed to it's meaning today: it meant "foolish, simple, arrogant, absurd, senseless."
Since it can be shown that words do not have definite, single, unchangeable meanings (and that some words have widely varying meanings), originalism and textualism are not viable theories for judicial decision-making. In fact, using the original meaning of the word, we can say those theories are "nice." And any decision that goes out of its way to deny ambiguity is similarly" nice": "foolish, absurd, senseless."
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.