Scalia’s Linguistic Acumen

Sometimes (in fact quite often) Mark Liberman says things at Language Log that make me want to paint them on the side of the barn. Here is a recent example:

It’s always been a source of wonder to me that (law) code, on which so much depends, is written without any means of bracketing to specify scope, and without even an unambiguous set of conventions for default binding in cases where scope is not explicitly marked. If the universe suddenly shifted so that computer code was written this way, modern society would disintegrate in a swirl of chaos, as every computer program began to behave in randomly unintended ways.

It is indeed astonishing that in the 21st century, more than a century after a rigorous understanding of ambiguity was developed by mathematical logicians and formal linguists, we still run our society on laws written in rambling, conjunction-heavy prose by legislators who have generally had not even a freshman course in syntax or logic or computer science, interpreted by judges who are usually just as innocent. Liberman was discussing the recent Supreme Court judgment in Lockhart v. United States, which turned crucially on the meaning of the phrase aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward. What does that mean? One possibility is this:

1. aggravated sexual abuse no matter who it involved, or
2. sexual abuse no matter who it involved, or
3. abusive sexual conduct involving a minor or ward.

But another possibility is that it could mean this:

1. aggravated sexual abuse involving a minor or ward, or
2. sexual abuse involving a minor or ward, or
3. abusive sexual conduct involving a minor or ward.

Avondale Lockart got a 10-year mandatory sentence for possessing child pornography because the lower courts used the first interpretation, and the Supreme Court backed them. In taking the modifier “involving a minor or ward” to apply only to the third type of offense, not the first two, the court’s majority leaned on “the rule of the last antecedent,” which apparently states that “a limiting clause or phrase … should ordinarily be read as modifying only the noun or phrase that it immediately follows.”

What a sloppy piece of pseudogrammatical half-truth! It entails that Fish and chips wrapped in paper should ordinarily be read as claiming only that the chips were in paper. It entails that property damaged or destroyed when a premium payment is overdue should typically be interpreted as talking about damage at any time or destruction during an overdue-premium period. It entails that a horse and cart in Connecticut would be a normal way of denoting a cart in Connecticut and a horse in Oregon. These are of course crazy.

You could quibble with these examples and say that you find reasons for interpreting them more sensibly (standard fish-and-chips retail practices, common sense about lapses of insurance coverage, the normal co-presence of horses and their associated carts, etc.); but that only underlines the point: The “rule of the last antecedent” (low attachment, as psycholinguists call it) can be trusted only when it happens to work. As a general principle it is useless (as well as unformalized, and lacking a basis in either statutes or syntax). The thought of a million-dollar contract or 10-year prison sentence hanging on this “rule” is appalling.

The late Justice Antonin Scalia would apparently have disagreed with the court’s judgment. Evidence from earlier oral discussion shows that he thought the “rule of lenity” (that where criminal statutes are ambiguous, doubts are resolved in favor of the defendant) should have prevailed. He was right.

Scalia’s linguistic acumen has been discussed elsewhere on Language Log (see the list here). In a footnote to his dissent in Smith v. United States (1993) Scalia discussed the meaning of the expression “use a firearm” (in a statute about using a gun during a crime), insisting that it might conceivably refer to using a gun for any purpose at all (scratching your head, propping open a door, pawning it to raise funds), or much more plausibly to using the gun as a weapon, but that it cannot possibly refer narrowly to just use of the gun either as a weapon or for purposes of trade.

Again Scalia was right, I think. The highly general (and unusual) meaning might be appropriate in some contexts, and the narrower natural meaning covering aggressive uses in others, but you cannot invent a meaning that covers a selective disjunction, to cover shooting it or trading it but nothing else.

Whatever you may think of Scalia’s conservative politics and constitutional originalism, he was skilled in linguistic interpretation as well as law, and excellent at inventing vivid illustrative examples. If his replacement on the court has anything like his linguistic insight along with legal expertise, we will be lucky.