How to Interpret Statutes â or Not:The Phantom of Plain Meaning
The government alleged that in 1926, Timothy McBoyle hired a pilot to steal an airplane and fly it from Ottawa, Illinois, to Guymon, Oklahoma.1 Although McBoyle denied the charge, the jury convicted him of interstate transportation of a stolen “motor vehicle” in violation of a federal statute. The operative language of the National Motor Vehicle Theft Act of 1919 defined “motor vehicle” to include “an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails.”2
On appeal, the 10th Circuit affirmed the conviction, rejecting McBoyle’s contention that “the word ‘vehicle’ includes only conveyances that travel on the ground; that an airplane is not a vehicle but a ship; and that, under the doctrine of ejusdem generis, the phrase ‘any other self-propelled vehicle’ cannot be construed to include an airplane.”3
Canvassing several dictionaries, the court of appeals determined that “vehicle” means “[a]ny receptacle, or means of transport, in which something is carried or conveyed, or travels.”4 It concluded that “the derivation and the definition of the word ‘vehicle’ indicate that it is sufficiently broad to include any means or device by which persons or things are carried or transported, and it is not limited to instrumentalities used for traveling on land. . . . ”5
The court acknowledged ambiguity in the statute insofar as a land-based vehicle “may be the limited or special meaning of the word.” But, “[w]e do not think it would be inaccurate to say that a ship or vessel is a vehicle of commerce.”6
An airplane is self-propelled, by means of a gasoline motor. It is designed to carry passengers and freight from place to place.. . . It furnishes a rapid means for transportation of persons and comparatively light articles of freight and express. It therefore serves the same general purpose as an automobile, automobile truck, or motorcycle. It is of the same general kind or class as the motor vehicles specifically enumerated in the statutory definition and, therefore, construing an airplane to come within the general term, “any other self-propelled vehicle,” does not offend against the maxim of ejusdem generis.7
The Supreme Court granted certiorari and reversed the court of appeals in McBoyle v. United States, 283 U.S. 25, 27 (1931). Justice Oliver Wendell Holmes, writing for a unanimous court, held that the statute, making it a federal crime to move a stolen “motor vehicle” in interstate commerce, did not apply to a stolen airplane. “No doubt etymologically it is possible to use the word [vehicle] to signify a conveyance working on land, water or air ….”8 Indeed, that is the “plain meaning” of the word vehicle, as the 10th Circuit had found by both “derivation and definition.”9 But the Supreme Court was otherwise persuaded: “It is impossible to read words that so carefully enumerate the different forms of motor vehicles and have no reference of any kind to aircraft, as including airplanes under a term that usage more and more precisely confines to a different class.”10
The Court alluded to but did not explicitly invoke familiar maxims or canons of construction that were seemingly applicable. It did not, for example, directly apply the rule of ejusdem generis to narrow the broad language “any other self-propelled vehicle” to the class or kind of ground-based vehicles enumerated by the statute. The 10th Circuit had reached the opposite conclusion, i.e., that planes were of “the general class as an automobile and a motorcycle.”11 And it did not explicitly invoke the rule of resort to legislative history to interpret ambiguous statutes; there is only a passing observation that airplanes “were not mentioned in the reports or in the debates in Congress.”12 Nor did it explicitly invoke the familiar rule of lenity to resolve a statutory ambiguity against the government in a criminal prosecution, although the dissenting judge on the court of appeals had done so.13
The Supreme Court chose the rationale that contemporary usage had effectively narrowed the “plain meaning” of motor vehicle in the dictionary sense to land-based vehicles: “But in everyday speech ‘vehicle’ calls up the picture of a thing moving on land.”14 Building on that linguistic premise, the Court relied additionally upon the principle of fair play: “It is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.”15
The argument based on unfairness to McBoyle as an individual is dubious because he clearly knew that he was conspiring to commit and committing (as an aider and abettor) the ancient common law crime of larceny. Larceny is malum in se, a “ten commandments” crime (Deuteronomy 5:17, “Neither shalt thou steal”).16 Every sane person knows that it is wrong to steal. The only colorable point about lack of fair warning was whether a reasonable person would know that he or she was committing a crime against the United States in addition to the crime(s) against state law. Analogy from other (later) cases suggests that knowledge of the federal character of the offense is not an element for which mens rea is required.17 The only solid basis for the Court’s decision is a rejection of foolish literalism based on the apparent legislative intent underlying “motor vehicle” as gleaned from the statutory context.
There are several lessons to be drawn from this opinion. The first is that superficially clear statutory language may upon concentrated analysis prove ambiguous, so that even a phrase as simple, familiar, and concrete as “motor vehicle” becomes subject to interpretation. The second is that in the search for statutory meaning, context trumps literalism. In other words, there is no “plain meaning” without context. This latter point helps to make sense out of what is otherwise the dialectical inconclusiveness of the canons of statutory interpretation.18 way of example, a few familiar dueling maxims are adduced below.
• The Plain Meaning of a Statute Controls — or Not: The plain meaning of a statute controls “unless this leads to an unreasonable result or a result contrary to legislative intent.”19
• “Shall” Is Mandatory, “May” Is Permissive — or Not: The plain meaning of “may” denotes a permissive term, but “if reading ‘may’ as permissive leads to an unreasonable result or one contrary to legislative intent, courts may look to the context in which ‘may’ is used and the legislature’s intent” to determine whether “may” should be read as a mandatory term.20
• “And” Is Conjunctive or Disjunctive — or Not: “In its elementary sense the word ‘or’ is a disjunctive particle that marks an alternative, generally corresponding to ‘either,’ as ‘either this or that’….”21 But there are also some recognized situations “in which the conjunction ‘or’ is held equivalent in meaning to the copulative conjunction ‘and.’”22
The fatal flaw in these oppositional directives is that there is no built-in mechanism for determining which is which, i.e., whether the putative “rule” applies or its “exception.” One cannot tell without resort to an extrinsic guide or standard whether “shall” is to be read as “may”; whether “and” is to be read as “or.” Therefore, it is impossible for the advocate to know in advance whether the canons of construction will predict decision, as distinguished from explaining it after the fact. And a judge approaching such a case is left at sea without reliance upon something beyond the canons.
This insight is not original to the author, who learned it in law school from Dean Soia Mentschikoff. It was first published nearly 70 years ago by Karl Llewellyn in a law journal, and later reproduced in his classic work Deciding Appeals: The Common Law Tradition (1960) (Appendix C), a book described by former Yale Law School Dean Anthony Kronman as “the best account of common-law adjudication that any American has ever offered.”23
On the dualistic nature of the standard tools of statutory interpretation, Llewellyn was quite blunt about what in terms of legal realism could be termed judge-speak: “[T]he accepted convention still, unhappily, requires discussion as if only one single correct meaning could exist. Hence there are two opposing canons on almost every point.”24 In other words, like a variant of Newton’s Third Law of Motion, for every canon there is an equal and opposite canon. The state of the analytical art has not advanced beyond this dialectic. As Llewellyn said, the canons are “still needed tools of argument” and every lawyer must know them all. But they do not, they cannot, decide the hard cases.
In this regard, appellate opinions have been on the whole remarkably unreflective about the inherent ambiguity of written language. Oral, in-person communication is infinitely richer in nuance and detail arising from the meaning(s) imparted by the personae and relationship of the speakers, body language, facial expression, proximity, gestures, tone of voice, rhythm, pauses, pacing, inflection, and more. Additionally, although much oral communication relates to simple subjects or tasks, even in complex and sustained presentations, like a law school lecture, a speaker receives almost instantaneous signals of comprehension, confusion, or doubt from his or her interlocutors. Even if only one person is speaking, oral communication is reciprocal, an ongoing feedback loop of communication.
A written text, by contrast, is much more limited in its reach and power. “The printed word is presented to us in a linear way, with syntax supreme in conveying the sense of the words in their order. We read privately, mentally listening to the writer’s voice and translating the writer’s thoughts.”25 Statutes face the additional expressive challenge of universality, trying to regulate (or exempt) every foreseeable occurrence or omission of a certain kind or class.
The reticence of judges to be more explicit about the interpretive process and their reliance upon “accepted conventional vocabulary”26 is no doubt traditional. It is also professional. Judges are not linguists or grammarians, although they are of necessity arbiters of language. Social and political constraints apply to the degree of candor in their opinions. Black-letter high school civics, reinforced by the cable television commentariat, emphasizes a rather mechanical separation of powers in which judges merely apply positive law. Judicial lawmaking has fallen, especially since the Warren Court, into political disrepute. Our inheritance of centuries of judge-made common law on the most fundamental matters of life and death is largely ignored or forgotten.
A more candid evaluation of the challenge of interpreting statutes would acknowledge that precision in statutory drafting is aspiration rather than reality, becoming more difficult as the complexity of the subject under regulation increases. Judges are necessary as translators of the statutory language in each case-specific context as it arises. They mediate the meaning of statutes, as any reader must do.27 There is no other possibility. How, then, should they proceed?
In truth, all meaning is contextual. The meaning of individual words may, of course, be clear: “A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”28 But meaning arises also from syntax, the interrelationship of words living “a communal existence.” In Judge Learned Hand’s phrase, the meaning of each word informing the others and “all in their aggregate tak[ing] their purport from the setting in which they are used.”29 Thus, the overall meaning of the sentences, sections, and paragraphs of a statute may with clear words still be ambiguous in application, as amply demonstrated by the National Motor Vehicle Theft Act as applied to McBoyle’s theft of an airplane.
A more recent case closer to home illustrates the point that statutory language may be plain yet ambiguous. In Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008), the Florida Supreme Court held five-to-two that “[t]he plain language of the statute could be construed in at least four ways.” The two dissenters wrote separately to argue that the plain meaning of the statute was unambiguous.30 Plainly, the court as a whole could not find clear meaning from the statutory language prohibiting the possession of pornography “relevant to the offender’s deviant behavior pattern.”31 For that reason, the majority resorted to a variety of canons of construction, based on the maxim that “if the language of the statute is unclear, then the rules of statutory construction control.”32
With statutes presenting clear language but multiple possible interpretations, the dictionary ceases to determine meaning. More sophisticated analysis is required, and context is king. “Language, of course, cannot be interpreted apart from context. The meaning of a word that appears ambiguous if viewed in isolation may become clear when the word is analyzed in light of the terms that surround it.”33 “[I]n ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statuteas a whole.”34
In this sense, “plain meaning” is a misnomer and is better called “situational meaning.” Even a stop sign does not mandate a stop if in a particular situation a traffic officer waves cars through or if a passenger is in cardiac arrest and requires immediate delivery to a hospital emergency room. If the plain meaning of a statute was really so plain, would not the appellate opinions explaining them be redundant; would not the cases more properly be decided by a per curiam affirmance? Further, would not the losing party be liable for sanctions (a fee award) for pursuing a frivolous appeal where the “plain meaning” was, as the court decided, against the loser’s position? Of course, that is far from reality. How else does one explain a five-to-four decision turning on words so apparently simple? “The Court today ignores the plain meaningof the Federal Service Labor-Management Relations Statute….”35
The fact is that plain meaning is riddled with exceptions and doubts:
In Church of the Holy Trinity v. United States.. . this Court conceded that a church’s act of contracting with a prospective rector fell within the plain meaningof a federal labor statute, but nevertheless did not apply the statuteto the church: “It is a familiar rule,” the Court pronounced, “that a thing may be within the letter of the statuteand yet not within the statute, because not within its spirit, nor within the intention of its makers.”36
There is, furthermore, a split among jurists regarding techniques of finding statutory meaning. Some judges reject the idea that a putative plain meaning should foreclose consideration of legislative history or other sources. “Believers in plain meaningmight be excused for thinking that the textanswers the question. But history may have something to say about what is plain, and here history is not silent.”37 “It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”38 The plain meaningrule is “rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists.”39
Summing up, what the courts have told the bench and bar is, in effect, to read statutes as one reads most texts, following dictionary definitions (except for terms of art), and rules of syntax, grammar, and punctuation where they work to produce a sensible result — the most plausible interpretation of the language in question. Excessive literalism is to be avoided. Thus, courts should “disregard the punctuation, or repunctuate, if need be, to render the true meaning of the statute.”40 Why? “Statutory construction ‘is a holistic endeavor.’”41 It must account for a statute’s “object and policy.”42
Often, “plain meaning” will be plain enough using common sense and common understanding. But it is the hard cases, the ones that justify a reasoned appellate opinion or second-tier review, that truly illuminate the unavoidable judicial choices in the decision-making process and the limited utility of the canons of construction. In such cases, the search for plain meaning devolves to a choice among competing options to arrive at the most plausible meaning among the several alternatives.
The advocate’s job, whether at trial or on appeal, is to advance the interpretation of the statute most beneficial to his or her client’s position as the one that is also the most consistent with the common sense of the statute. Plain meaning and other canons can facilitate argument but not decide it conclusively. “Llewellyn stresses that cases cannot be decided merely by identifying the controlling rules of law, the ‘paper’ rules, as he dismissively describes them. The decision of a case always requires a choice among alternatives, hence an exercise of will.”43 Hence:
[T]o make any canon take hold in a particular instance, the construction contended for must be sold, essentially, by means other than the use of the canon: The good sense of the situation and a simple construction of the available language to achieve that sense, by tenable means, out of the statutory language.44
Mutatis mutandis, the task for judges in the search for law and justice in a case of statutory interpretation, is ultimately the same, attainable by what Judge Richard Posner calls the exercise of “sound judgment.”45
1 McBoyle v. United States, 43 F.2d 273, 274 (10th Cir. 1930).
7 Id. at 274 (emphasis added).
8 McBoyle, 283 U.S. at 26.
9 McBoyle, 43 F.2d at 274.
10 McBoyle, 283 U.S. at 27.
11 McBoyle, 43 F.2d at 274.
12 McBoyle, 283 U.S. at 26.
13 McBoyle, 43 F.3d at 276 (Cotteral, J., dissenting).
14 McBoyle, 283 U.S. at 26.
15 Id. at 27.
16 See Foster v. State, 596 So. 2d 1099, 1103 & n.2 (Fla. 5th D.C.A. 1992) (Cowart, J. dissenting).
17 Cf. United States v. Feola, 420 U.S. 671 (1975) (holding that the crime of assaulting a federal officer does not require proof that defendant
knew victim was a federal officer and that there is “no risk of unfairness” in such rule).
18 The same principles generally apply to the interpretation of other forms of positive law. “The rules used in construing statutes are in general applicable in construing the provisions of a constitution.” See State ex rel. McKay v. Keller, 191 So. 542, 545 (Fla. 1939). “[T]he basic rule requiring that the intent of the framers and adopters be given effect equally controls in construing constitutional provisions.” See State ex rel. Dade County v. Dickinson, 230 So. 2d 130, 135 (Fla. 1969).
19 Cherry v. State, 959 So. 2d 702, 713 (Fla. 2007).
20 Shands Teaching Hosp. & Clinics, Inc. v. Sidky, 936 So. 2d 715, 721 (Fla. 4th D.C.A. 2006).
21 Pompano Horse Club v. State, 111 So. 801, 805 (Fla. 1927).
23 Anthony Kronman, The Lost Lawyer 211 (1993).
24 Karl Llewellyn, Deciding Appeals: The Common Law Tradition 521 (1960).
25 Lynne Truss, Eats, Shoots & Leaves 180 (2003).
26 Llewellyn, Deciding Appeals: The Common Law Traditionat 521.
27 “Readers attend to the text. They create images and verbal transformations to represent its meaning. Most impressively, they generate meaning as they read by constructing relations between their knowledge, their memories of experience, and the written sentences, paragraphs and passages.” Alberto Monguel, A History of Reading 39 (1996), quoting, Lewin C. Wittrock, Reading Comprehension in Neuropsychological and Cognitive Processes in Reading (Oxford, 1981).
28 Perrin v. United States, 444 U.S. 37, 42 (1979).
29 NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941).
30 Kasischke v. State, 991 So. 2d at 827 (Lewis & Bell, J.J., dissenting).
31 Id. at 805.
32 Id. at 811 (quoting, Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000).
33 Smith v. United States, 508 U.S. 223, 229 (1993); accord, Leocal v. Ashcroft, 543 U.S. 1, 9 (2004).
34 Household Credit Services, Inc. v. Pfenning, 541 U.S. 232, 239 (2004) (quoting the circuit court of appeals).
35 Nat’l Fed’n of Fed. Employees, Local 1309 v. Dep’t of Interior, 526 U.S. 86, 101 (1999) (O’Connor, J., dissenting).
36 Zuni Public Schools Dist. No. 89 v. Dep’t of Educ., 127 S. Ct. 1534, 1551 (2007) (Scalia, J., dissenting) (citations omitted).
37 United States v. Mezzanotto, 513 U.S. 196, 212 (1995) (Souter, J., dissenting).
38 Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945), aff’d, 326 U.S. 404 (1945).
39 Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928) (Justice Holmes writing for the majority). See also United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 543-544 (1940) (“When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’”) (citations omitted).
40 Hammock v. Farmers’ Loan & Trust Co., 105 U.S. 77, 84-85 (1882) (internal quotation marks and citation omitted).
41 United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988).
42 United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122 (1849) (quoted in more than a dozen cases).
43 Kronman, The Lost Lawyerat 196.
44 Llewellyn, Deciding Appeals: The Common Law Tradition at 521 (emphasis in original).
45 Kronman, the lost lawyer at 231.
Steven Wisotsky has served since 1980 as a tenured professor of law at Nova Southeast University Law Center, where he teaches appellate practice, white collar crimes, criminal procedure, and other courses. He has also served as special counsel at Zuckerman Spaeder, LLP, in Miami. His practice covers civil rights, commercial litigation, regulation of medical care providers, condominium and land use litigation, white collar criminal appeals, legal malpractice defense, civil RICO, and class actions. He is a member of the Federal Trial Bar (SD Fl), the Bars of the Fourth, Fifth, and 11th U.S. circuits, and the Bar of the U.S. Supreme Court.
This column is submitted on behalf of the Appellate Practice Section, Siobhan Helene Shea, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.