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Wednesday, June 17, 2020

Ordinary Meaning vs. Literal Meaning

One dividing line between the majority and the dissent on the interpretation of Title VII was whether the ordinary meaning or the literal meaning of the text should govern. Justice Kavanaugh argued that the ordinary meaning should apply and that the ordinary meaning of "because of . . . sex" did not include sexual orientation or transgender status.

I'm not so persuaded by this argument, though I thought his dissent was better than Justice Alito's. I think that ordinary meaning is the correct standard for interpreting the Constitution. After all, the Constitution is higher law. The text was ratified in a special process that generates unusually high public attention. And the Constitution, as FDR famously said, should be understood as "a laymen's charter, and not a lawyer's contract."

Statutes, though, are technical legal documents. They do not have a special popular flavor. Try reading some. They are directed at lawyers, judges, and administrative agencies. I do not see, therefore, why would apply "ordinary meaning" to them anymore than you would to an administrative regulation or a tax provision.

One possible response is that the Civil Rights Act of 1964 is no ordinary statute. It is either a "super-statute" or an act of popular will comparable to a constitutional text. Maybe then the ordinary meaning should apply. This was not Justice Kavanaugh's argument though.

Posted by Gerard Magliocca on June 17, 2020 at 09:58 PM | Permalink


For example, a tomato is a vegetable for tariff purposes, not a fruit.

Posted by: jph12 | Jun 20, 2020 1:11:44 PM

There is an enormous body of caselaw saying that the default rule in statutory interpretation is to interpret the statute according to its ordinary meaning.

That said, I don’t think Kavanaugh is correct in saying that Gorsuch applied literal meaning rather than ordinary meaning.

Posted by: Neal Goldfarb | Jun 20, 2020 2:10:07 AM

This debate might have interesting implications if the Supreme Court takes up the claim that a Texas law violates the 26th Amendment.

Posted by: Joe | Jun 18, 2020 12:03:11 PM

I respectfully disagree with a premise: "The text was ratified in a special process that generates unusually high public attention" depends upon defining "public" as meaning "literate white men of the late eighteenth century, almost entirely Protestant landowners." In turn, that sort of distorts the "ordinary" in "ordinary meaning"... especially in light of just how many of the three-fifths of all other persons took part in any ratification debates so that we even have a written record of their concerns> One wonders what those who had spent their entire lives on plantations in South Carolina thought a "militia" was, let alone a "well regulated Militia" or a "free State." That's before one tries to figure out what "necessary and proper" might mean to the impoverished or escapee.

Both literal and ordinary meaning depend upon the quality of the material we have to establish them; just take a careful look at how Noah Webster compiled that dictionary and ponder the yawning gaps in sources and methods. Interpreting the 24th Amendment based on the "ordinary meaning" of "poll tax" is a lot more defensible just because we've got a better record of that ordinary meaning — one that is less restricted to a consensus of the governing class than is consideration of the Bill of Rights or Article I § 8.

Posted by: C.E. Petit | Jun 18, 2020 11:21:18 AM

"thought his dissent was better than Justice Alito's"

Not enough pirate.

Anyway, using "ordinary meaning" will allow people to get to the same result here. It might take a bit more work. I don't know. Personally think Gorsuch is a bit too "it's obvious," but that is sorta his thing.

Posted by: Joe | Jun 18, 2020 11:20:21 AM

Important and complicated issue as well. Just worth to note:

The author of the post, correctly suggest or indicate the supremacy of the constitution over other laws. Yet, such supremacy can't be implied in regard of meaning of words.Why is that :

Simply because, the constitution has supremacy in terms of abstract principals. But, when dealing with specific definitions for words, or specific provisions, unless radically, fundamentally, contradicts constitutional principals, statutes, must prevail.

So, it is specific meaning and provision V. abstract constitutional principals.

We shall illustrate it through:


There we can find , specific section ( Sec. 2013 ) bearing the title "Definitions". So, definitions there, would prevail, over any other definitions. Why, because the lawmaker, has revealed specifically, his intent, that some words,must bear specific meaning, for the specific act or code or statute or section, like, I quote:

"SUPPORT- The term `support' means assistance of any kind, including financial support, transfer of property or other material support, services, intelligence sharing, law enforcement cooperation, the training or detail of personnel, and the arrest or detention of individuals."

So, this term " support" has only the meaning given in that act, not the ordinary meaning, or at least, would prevail in advance, or, having priority.

Here to the act mentioned:



Posted by: El roam | Jun 18, 2020 5:55:19 AM

Employment-discrimination statutes aren't directed at employers and employees, just their lawyers?

Even if you were right, I don't know why we would expect lawyers to read statutes any more literally than non-lawyers. More technically, perhaps; more by reference to legal terms of art.

Posted by: Asher Steinberg | Jun 17, 2020 10:30:54 PM

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