Scalia, the Rules Lawyer
So I've heard some of my readers saying, "Is Three Years of Hell still a law school blog? Isn't Mr. Rickey ever going to talk about, well, law and law school?"
I have to admit, 3L year has become a kind of time-biding exercise between the clerkship application process and the joyous day when I get to stop racking up debt and restart my career. But every so often events converge such that I want to write about something from class. For instance, in today's Admin Law reading I ran across a rarity, a Scalia opinion where I think the good Justice has been drinking a little too deeply from the textualist well. He may be my favorite justice, but in MCI Telecommunications Corp. v. American Telephone and Telegraph Co., 512 U.S. 218 (1994), he gets a little bit wild when deciding that "modify" has particularly strict limitations:
The dispute between the parties turns on the meaning of the phrase "modify any requirement" in 203(b)(2). Petitioners argue that it gives the Commission authority to make even basic and fundamental changes in the scheme created by that section. We disagree. The word "modify" - like a number of other English words employing the root "mod-" (deriving from the Latin word for "measure"), such as "moderate," "modulate," "modest," and "modicum," - has a connotation of increment or limitation. Virtually every dictionary we are aware of says that "to modify" means to change moderately or in minor fashion. See, e.g., Random House Dictionary of the English Language 1236 (2d ed. 1987) ("to change somewhat the form or qualities of; alter partially; amend"); Webster's Third New International Dictionary 1452 (1976) ("to make minor changes in the form or structure of: alter without transforming"); 9 Oxford English Dictionary 952 (2d ed. 1989) ("[t]o make partial changes in; to change (an object) in respect of some of its qualities; to alter or vary without radical transformation"); Black's Law Dictionary 1004 (6th ed. 1990) ("[t]o alter; to change in incidental or subordinate features; enlarge; extend; amend; limit; reduce").
In support of their position, petitioners cite dictionary definitions contained in or derived from a single source, Webster's Third New International Dictionary 1452 (1976) ("Webster's Third"), which includes among the meanings of "modify," "to make a basic or important change in."
Now, Justice Stevens has some more relevant criticism of Justice Scalia's hyper-strict use of the term "modify," and it's a good one, but this does show the peril of using dictionaries as the primary source of "meaning" in textualism. Whatever else they are, dictionaries are exceedingly precise sculptors of words, so precise that they often overlook that no one actually obeys their usage.
For instance, take the term "modification" as it's used among computer obsessives, automotive fetishists, or anyone else who has a good time with a screwdriver, a free weekend, and a mass-manufactured item that they don't feel is quite... expressive enough. (Or for software modders, take the above, forget the screwdriver, and add someone else's code.) What do they do? They make "modifications." Examples of such "small" mods available without search much include:
- A case modified to look like a V8 (and take a look at the whole site for other "minor" changes, like making the whole thing look like a spider)
- In the same vein, a Pentium Pumpkin
- For software modders, we can consider at the very least this article on games modifications for starters. None of these are particularly extreme, but I've modified bulletin boards to be game systems, project management software to make visual poetry, and other such nonsense. (OK, the last is a stretch.)
- And of course, think of all the modifications that lovers of the classic VW Bug have dreamed up through the years. How about putting obscenely overpowered engines into them? Scuttling together the Baja Bug? Beetlemaniacs dream up countless such "modifications," and I defy even the stoutest-hearted textualist to go to an auto convention and tell those carefree-of-heart (and often burly-of-limb) greasemonkeys that they are "making minor changes in the form or function of" or "altering without transforming."
I actually agree with the policy achieved by Scalia's decision in the case. The outcome certainly matches my inclinations as to separation of powers. But to dress this up in textualist language, as if dictionaries were dusty tomes to which wizened old thaumaturges should retire in order summon meaning into a statute, feels a bit overblown. Actual usage of "modify" seems nothing near that limiting. Later in the opinion, Scalia supports his argument with overblown examples (e.g. "It might be good English to say that the French Revolution 'modified' the status of the French nobility--but only because there is a figure of speech called understatement. . . .") without recognizing that people will make quite major changes to things and call them a "mod."
Anyway, as I said, I was amused by this particular example simply because I find myself agreeing with most of Scalia's originalist approaches, but just couldn't find my way to agreement here. I wasn't going to write about it originally, but then I saw this cartoon before going to bed, and it brought the case to mind.