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Bench Memos

NRO’s home for judicial news and analysis.

Scalia/Garner Proposition 1: The Interpretation Principle



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Part of a series on Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Bryan A. Garner

Is a taco a sandwich? That was the real-world legal issue in a case that Justice Scalia and Bryan Garner use to illustrate the first of their five “fundamental principles”: “Every application of a text to particular circumstances entails interpretation.”

In other words, even the application of plain and unambiguous language involves an implicit process of interpretation. As a quote Scalia and Garner embrace nicely puts it, “if you seem to meet an utterance which doesn’t have to be interpreted, that is because you have interpreted it already.”

As an aside, I’ll note that while I don’t dispute the court’s determination, in interpreting a sandwich store’s lease in a shopping center, that the tacos offered by its fellow lessee were not sandwiches, I can’t join Scalia and Garner in praising the court for relying on a dictionary definition of a sandwich as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” (Emphasis added.) Maybe, given the culinary standards of the 1950s, that was a decent definition in 1961, when the dictionary (reprinted in 2002) was published. But the lease was entered into forty years later. I’ve had many a sandwich in recent decades, and I doubt that one of them was ever buttered. Plus, I’m confident that two thick pieces of bread, with a thick layer of meat between them, would have been clearly recognized as a sandwich in 2001. (To be clear: Scalia and Garner’s conclusion that a taco isn’t a sandwich doesn’t depend on the italicized qualifiers.)



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