Bench Memos

Scalia/Garner Proposition 6: Ordinary Meaning

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

Having addressed most of Justice Scalia and Bryan Garner’s fundamental principles of interpretation, let’s now focus on their canons.

At the outset, it’s necessary to have in mind that the canons “are not ‘rules’ of interpretation in any strict sense.” Rather, they are “presumptions”—rebuttable presumptions—“about what an intelligently produced text conveys.” And, as we’ve already seen, different canons interrelate “like clues in a good mystery.”

Scalia and Garner’s ordinary-meaning canon, the “most fundamental semantic rule of interpretation,” provides: “Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.”

The ordinary meaning of a word is to be determined not in isolation (how would one possibly choose among the 800 separate meanings that run is said to have?) but rather from the “contextual and idiomatic clues” that surround it (e.g., home run, run on a bank, run in a stocking). (I’m borrowing the run material from a source that Scalia and Garner cite.) Those clues, Scalia and Garner maintain, are usually (but not always) sufficient to convey the meaning a word bears.

Scalia and Garner cite the “common experience” of “everyday life” to briskly dismiss those theorists who deny that ordinary meaning ever exists. I’d add that those theorists evidently don’t believe their own theory when they deploy words to try to persuade others that words have no transmittable meaning. (But maybe their genes make them do it.)

Context can indicate that a word is a term of art that bears a technical or specialized meaning—in which case, as Grotius advised nearly 400 years ago, “recourse, for explanation, must be had to those who are most experienced in that art.” That’s why we turn to lawyers to understand legal terms of art.

It’s not always easy, though, to tell whether a particular legal text uses ordinary meaning or specialized meaning. (Scalia and Garner discuss an 1893 Supreme Court case pondering whether a tomato is a fruit or a vegetable for purposes of an import tariff.) Resort to the other canons may well shed light on this question.

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