Marco Basile

Ordinary Meaning and Plain Meaning

With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between ordinary meaning and plain meaning can become confused in practice. Courts use the terms interchangeably, and they conflate them doctrinally.

Ordinary meaning and plain meaning are distinct. Ordinary meaning is what the text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the text conveys in context is clear from the text. Thus, a term’s ordinary meaning is also its plain meaning only when it is clear from how the term is used in the statute that its context is ordinary, as opposed to technical. Courts conflate the two, however, when they assume ordinary meaning under the ordinary meaning canon and then conclude that they are therefore bound to enforce that meaning under the plain meaning rule. As a result, they end interpretation prematurely, excluding extratextual aids that might well show that the ordinary meaning assumption should give way.

This Article is the first to investigate the relationship between ordinary meaning and plain meaning. It clarifies their differences, identifies the ways in which they are conflated, and evaluates when they should converge. For textualists, greater clarity on this score illuminates when and how to bring ordinary meaning and plain meaning together in a principled manner. For methodological pluralists, understanding the gap between ordinary meaning and plain meaning opens opportunities to argue beyond the text in our increasingly textualist world.

Introduction

Today, the two most fundamental doctrines of statutory interpretation are the ordinary meaning canon and the plain meaning rule. The ordinary meaning canon: assume statutory terms bear their “ordinary meaning” unless the context indicates otherwise.1 1.E.g., Gonzales v. Carhart, 550 U.S. 124, 152 (2007) (“In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result.”).Show More The canon is regularly described as “the [m]ost [f]undamental [p]rinciple of [l]egal [i]nterpretation,”2 2.Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2015); see also William N. Eskridge, Jr., Interpreting Law 33 (2016) (calling the ordinary meaning canon “[t]he prime directive in statutory interpretation”); Antonin Scalia & Bryan A. Garner, Reading Law 69 (2012) (“The ordinary-meaning rule is the most fundamental semantic rule of interpretation.”).Show More and the Supreme Court has long treated it as an “axiom.”3 3.E.g., Burns v. Alcala, 420 U.S. 575, 580 (1975).Show More The plain meaning rule: if the statutory text’s meaning is “plain” (as in clear), then a court must enforce that meaning regardless of other considerations.4 4.E.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“[W]here . . . the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’” (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))).Show More The Supreme Court has deemed it the “cardinal” rule of statutory interpretation that comes “before all others.”5 5.Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992).Show More

Neither doctrine is textualism,6 6.Cf. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 420 (2005) (“[T]extualism does not admit of a simple definition.”).Show More but their prominence has skyrocketed with textualism’s ascendancy.7 7.See, e.g., Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev. 1915, 1973–74 (finding from a statistical analysis of the U.S. Reports that the Supreme Court’s use of “plain meaning” and “ordinary meaning” has increased exponentially since the 1970s).Show More The ordinary meaning canon is an old practice with supporting aphorisms from Blackstone, Marshall, and Holmes,8 8.See1 William Blackstone, Commentaries *59 (“Words are generally to be understood in their usual and most known signification . . . .”); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C.J.) (observing that a legal text’s “words are to be understood in that sense in which they are generally used by those for whom the instrument was intended”); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417–18 (1899) (positing that legal interpretation asks “what [the] words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”).Show More and it “straddles judicial philosophies.”9 9.Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 23 & n.238 (2022) (documenting how “all current members of the Supreme Court have invoked this rule of ordinary meaning”).Show More But the canon is particularly important to textualists.10 10.See, e.g., Amy Coney Barrett, Assorted Canards of Contemporary Legal Analysis: Redux, 70 Case W. Rsrv. L. Rev. 855, 856 (2020) (“Textualism . . . insists that judges must construe statutory language consistent with its ‘ordinary meaning.’”).Show More Thus, courts invoke “ordinary meaning” today three times as often as they did half a century ago,11 11.Kevin Tobia, Brian G. Slocum & Victoria Nourse, Statutory Interpretation from the Outside, 122 Colum. L. Rev. 213, 217 (2022) [hereinafter Tobia et al., Statutory Interpretation] (finding from a sample of six million cases that “[o]ver the past fifty years, citation to ‘ordinary meaning’ has tripled”).Show More before the rise of “the new textualism.”12 12.SeeWilliam N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623–24 (1990) (describing the development in the 1980s of a methodological commitment to enacted text over legislative history as “the new textualism”).Show More As for the plain meaning rule, it was not always in favor,13 13.In 1892, the Supreme Court famously articulated a quite different rule “that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892).Show More and Judge Wald even wrote its obituary in the early 1980s.14 14.SeePatricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 197–98 (1983); cf.Arthur W. Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum. L. Rev. 1299, 1302 (1975) (describing “the refusal of the courts to abandon” the plain meaning rule despite “reports of its death”).Show More But the plain meaning rule is textualism’s “bedrock principle,”15 15.Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 164 (2010); see alsoJohn F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1309–10 (2010) (describing the “defining feature of ‘second-generation textualism’” to be the “proposition that courts must respect the terms of an enacted text when its semantic meaning is clear, even if it seems contrary to the statute’s apparent overall purpose”).Show More and the Supreme Court now invokes the plain meaning of text more than any other interpretive tool save for precedent.16 16.Cf.Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev. 76, 95–97 (2021) (finding that the “text/plain meaning” of a statute was the most used interpretive source other than precedent in a sample of statutory interpretation cases from 2005–2017 Supreme Court Terms).Show More Thus, when Justice Kagan said “we’re all textualists now,”17 17.Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, at 8:29–30 (Nov. 17, 2015), https://www.youtube.com/‌wat‌ch?v=dpEtszFT0Tg [https://perma.cc/R67U-65ZS].Show More presumably she meant at least this: the text has primacy over other considerations and therefore controls if what it says is plain.18 18.Indeed, when Justice Kagan later quipped about this remark that “[i]t seems I was wrong,” she was faulting the Court for using a “get-out-of-text-free card[].” West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting); John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 129–30 (describing “nontextualist” Justices’ acceptance of the plain meaning rule). On Justice Kagan’s remark and her later retraction, see generally Kevin Tobia, We’re Not All Textualists Now, 78 N.Y.U. Ann. Surv. Am. L. 243 (2023).Show More

Yet despite how fundamental ordinary meaning and plain meaning are to our “law of interpretation,”19 19.William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1084–85 (2017) (developing an account of legal canons as part of the unwritten law that governs legal interpretation).Show More their relationship can become confused in practice. Courts, litigants, and commentators use the terms interchangeably20 20.See sources cited infra notes 310–11.Show More because “plain” can also be a synonym for “ordinary” (as in plain vanilla).21 21.William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. 539, 545 (2017). The wonderful “plain vanilla” example is theirs.Show More And courts conflate them doctrinally by beginning interpretation with “ordinary meaning” (or “plain meaning” in the plain-vanilla sense) under the ordinary meaning canon and then concluding that they are therefore bound to end interpretation with that meaning, regardless of extratextual considerations, under the plain meaning rule.22 22.See infra Part III.Show More The problem is that statutes sometimes have technical (i.e., non-ordinary or specialized) meanings.23 23.SeeAmy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev. 2193, 2202 (2017) (noting that textualists accept that “terms are sometimes used in their ordinary and sometimes in their technical sense”).Show More When courts conflate ordinary meaning and plain meaning, they risk excluding extratextual interpretive aids that would illuminate whether the ordinary meaning assumption should give way to a different meaning.

Consider an example involving a term with a clear ordinary meaning but less clear statutory context. The Penobscot Nation is a “riverine” Native nation.24 24.H.R. Rep. No. 96-1353, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 3786, 3787.Show More A statute defines the “Penobscot Indian Reservation” as “the islands in the Penobscot River reserved to the Penobscot Nation by agreement with the States of Massachusetts and Maine” as of June 29, 1818.25 25.Me. Stat. tit. 30, § 6203(8) (2023). The federal Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, § 3, 94 Stat. 1785, 1786–87 (1980), incorporates the definition from the Maine Implementing Act, Me. Stat. tit. 30, § 6203(8) (2023). See 25 U.S.C. § 1722(i).Show More An “island,” no doubt, ordinarily does not include its surrounding waters.26 26.SeePenobscot Nation v. Frey, 3 F.4th 484, 491 (1st Cir. 2021) (en banc) (determining from dictionary definitions that it is “clear” that “an island is ‘a piece of land’” and that “[l]and does not ordinarily mean land and water”).Show More But is it plain in this statutory context that “islands” excludes the waters? Notably, the provision references a historical agreement as well as a specific set of “islands,” and the Supreme Court has said that a reservation defined by reference to specific “islands” may encompass the surrounding waters.27 27.See Alaska Pac. Fisheries v. United States, 248 U.S. 78, 86–89 (1918) (interpreting a reference to “the body of lands known as Annette Islands” in the statutory definition of the Metlakahtla Reservation and holding that “the geographical name was used, as is sometimes done, in a sense embracing the intervening and surrounding waters as well as the upland—in other words, as descriptive of the area comprising the islands”).Show More Moreover, a neighboring provision guarantees fishing rights “within the boundaries of [the] Indian reservation[],”28 28.Me. Stat. tit. 30, § 6207(4) (2023).Show More and there is nowhere on the islands themselves to fish.29 29.Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 186 (D. Me. 2015) (“None of those islands contains a body of water in which fish live.”).Show More The U.S. Court of Appeals for the First Circuit nevertheless felt bound to enforce the ordinary meaning of “island” under the plain meaning rule—regardless of what the historical agreement was, the purpose for codifying it, or the canon that ambiguous statutes are construed to Indians’ benefit.30 30.SeePenobscot Nation, 3 F.4th at 491 & n.5 (“Because ‘islands’ is an undefined term, we construe it in accordance with [its] ordinary meaning.” (internal quotation marks omitted) (citation omitted)); id. at 493 (citing McGirt v. Oklahoma, 140 S. Ct. 2452, 2469 (2020) (“There is no need to consult extratextual sources when the meaning of a statute’s terms is clear.”)); see also id. at 490–91 (citing additional plain meaning precedents); id. at 496 (“[The statute’s] reference to these treaties does not alter the plain meaning of ‘islands’ and creates no ambiguity.”); id. at 503 (“This canon only applies to ambiguous provisions.”). But see County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985))).Show More

Or consider an example of a term with a disputed ordinary meaning. Bostock v. Clayton County31 31.140 S. Ct. 1731 (2020).Show More held that the federal bar on workplace discrimination “because of . . . sex”32 32.Id. at 1738 (quoting 42 U.S.C. § 2000e-2(a)(1)).Show More protects employees against discrimination based on sexual orientation or gender identity.33 33.Id. at 1754.Show More Much has been written in Bostock’s wake on the differences among textualist Justices’ opinions in the case regarding what constitutes ordinary meaning.34 34.See, e.g., Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265, 266 (2020) (“Bostock revealed . . . important tensions within textualism.”); Ilya Somin, Bostock v. Clayton County and the Debate over the Meaning of “Ordinary Meaning,” Volokh Conspiracy (June 19, 2020, 11:25 PM), https://reason.com/volokh/2020/06/19/bostock-v-clayton-county-and-the-debate-over-the-meaning-of-ordinary-meaning/ [https://perma.cc/ZS6W-YN87] (describing “an interesting dispute over what exactly counts as ‘ordinary meaning’” between Justices Gorsuch and Kavanaugh in Bostock); Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev. 461, 465–72 (2021) (arguing that Bostock revealed competing versions of “empirical textualism”—one focused on “what ordinary people understand [a provision] to mean, applying their own criteria” and the other focused “on the ordinary application of the established legal criterion . . . to interpret and apply the” provision).Show More Left out of that discussion is a stark point about what all the Justices signed on to: the provision’s ordinary meaning was its plain meaning. Indeed, after determining the provision’s “ordinary public meaning,”35 35.Bostock, 140 S. Ct. at 1741 (“From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”).Show More the majority repeatedly justified enforcement of that meaning based on what the majority variously called the provision’s “plain meaning,”36 36.Id. at 1750.Show More “plain terms,”37 37.Id. at 1743, 1748–50, 1752.Show More “plain text,”38 38.Id. at 1751.Show More and “plain statutory command[].”39 39.Id. at 1754.Show More The dissenters drew a similar equation; they just found a different ordinary meaning.40 40.Seeinfra notes 404–07 and accompanying text.Show More Sharp intramural, text-based disputes over the ordinary meaning of the provision would seem to suggest at least that there were other plausible, even if less ordinary, readings of the text. Yet not a single Justice posited that there was any textual ambiguity warranting recourse to additional interpretive aids.

What’s more, Justice Gorsuch’s majority opinion justified giving statutory terms their “ordinary public meaning” because “only the words on the page constitute the law adopted by Congress and approved by the President.”41 41.Bostock,140 S. Ct. at 1738.Show More Yet while the fact that only the text has met the Constitution’s bicameralism and presentment requirements for making statutory law may justify enforcing its plain meaning, even textualists recognize that those requirements do not mandate reading the text according to its ordinary meaning.42 42.See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 71–72 (2001).Show More After all, the Constitution does not tell us how to read the text.

In short, how ordinary meaning and plain meaning relate under their respective doctrines has become something of an enigma in practice. Justice Scalia and Bryan Garner’s influential treatise on statutory interpretation even gives a cryptic secondary definition for the plain meaning rule as: “Loosely, the ordinary-meaning canon.”43 43.Scalia & Garner, supranote 2, at 436.Show More

While there are rich literatures on both ordinary meaning44 44.See, e.g., sources cited infra notes 99, 103, 114–15, 120–22.Show More and plain meaning,45 45.See, e.g., sources cited infra notes 135, 196, 215.Show More these literatures have studied the topics separately. Scholars have noted that ordinary meaning and plain (as in clear) meaning are different,46 46.SeeBaude & Doerfler, supra note 21, at 545 (noting that “plain” means obvious under the plain meaning rule, as distinguished from its occasional use “to denote something like ordinary meaning”); Eskridge, supra note 2, at 33 (“‘Plain meaning’ ought to be reserved for a judicial declaration that there is a clear legal meaning for the provision in question . . . .”); Peter W. Schroth, Language and Law, 46 Am. J. Compar. L. 17, 26 n.41 (Supp. 1998) (“Ordinary meaning seems to differ from plain meaning, in that the former denotes something like ‘the sense this expression usually has in such contexts’ while the latter may require absence of ambiguity.”); Slocum, supra note 2, at 23–25 (briefly distinguishing the ordinary meaning canon and plain meaning rule).Show More and others have flagged that “there may be important differences” even between ordinary meaning and plain-vanilla meaning.47 47.Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev. 726, 736 (2020) [hereinafter Tobia, Testing Ordinary Meaning]; see also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 234 n.6 (observing in a footnote “the important point that plain meaning is not equivalent to ordinary meaning”).Show More But no one has explained these differences in any depth. That is my goal—to clarify the differences between ordinary meaning and plain meaning, to identify the ways in which they are conflated, and to evaluate when they should converge.

My thesis: “ordinary meaning” under the ordinary meaning canon and “plain meaning” under the plain meaning rule have different definitions, functions, consequences, and justifications. Both are sensitive to context, however, because courts agree that statutory terms have meaning only in context.48 48.See infra note 84 and accompanying text.Show More Thus, a term bears its ordinary meaning unless the context indicates a technical meaning. But a term’s ordinary meaning is also its plain meaning only when it is plain from how the term is used in the statute that its context is ordinary, not technical. How plain must it be? Because “plainness” is ultimately a legal characterization,49 49.See Ryan D. Doerfler, How Clear Is “Clear”?, 109 Va. L. Rev. 651, 657–58 (2023); Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1505–09 (2019).Show More how plain (and to whom it must be plain) should depend on the court’s purposes for assuming ordinary meaning. The following roadmap previews the details.

Part I defines “meaning.” What the words and phrases in a statute “mean” in a legal sense differs from what they “mean” in a linguistic sense. Ordinary meaning and plain meaning are both claims about linguistic meaning—specifically, what the statutory words and phrases in context would convey to a reasonable English user. But the nature of their claims as well as the consequences for legal meaning are very different.

Part II clarifies the differences between ordinary meaning and plain meaning. First, different definitions: ordinary meaning refers to the content of what the statutory text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the statutory text conveys in context is clear from the text. Second, different functions: ordinary meaning provides a starting point for what the statute means subject to other considerations, while plain meaning acts as an evidentiary rule to bar other considerations if the statute’s meaning is clear from the text. Third, different consequences: ordinary meaning provides a statute’s default legal meaning, while plain meaning specifies its legal meaning (arguably subject to absurdity). Fourth, different justifications: because statutes are not, in fact, everyday communications, ordinary meaning must ultimately be justified counterfactually (e.g., asking how an ordinary member of Congress, as opposed to a court, would interpret the statute) or by normative values (e.g., democracy and the rule of law). In contrast, courts enforce plain meaning for an epistemic reason: the clear meaning of the text that survived the constitutional process for making statutory law is the best evidence of the legal norms that Congress promulgated.

Part III identifies how courts conflate these differences in practice. Courts refer to ordinary meaning and plain meaning interchangeably, which can lead them to invoke the plain meaning rule to enforce plain-vanilla meaning. Courts also conflate the doctrines by relying on the plain meaning rule to enforce ordinary meaning merely absent a statutory definition, like in Penobscot Nation v. Frey, or other clear statement from Congress. And in recent cases, such as Bostock, the Supreme Court has begun to muddle their justifications, suggesting that the rationale for enforcing plain meaning mandates reading statutes according to their ordinary meaning.

Part IV evaluates when courts should enforce ordinary meaning as plain meaning. A term’s ordinary meaning—even when clear—is also its plain meaning only if the statutory context plainly supports that reading. Thus, ordinary meaning is not always plain meaning. But often they converge. Not only are there easy cases with only one—both ordinary and plain—meaning, but “plainness” also should not require the complete absence of alternative readings. Rather, whether a meaning is “plain” is ultimately a legal judgment that should depend on the court’s purposes for assuming ordinary meaning. If a court assumes that “island” bears its ordinary meaning as an expedient method to reach an agreement among the judges, then the question is “how plain to us?” and the threshold for plainness is low—the whole point is to reach a solution efficiently. But if a court assumes that “island” bears its ordinary meaning because, in a democracy, laws should be interpreted according to how the public would understand them, then the question changes to “how plain to ordinary people?” And the threshold for plainness may go up, depending on the court’s beliefs about how ordinary people distinguish between ordinary and technical language. Thus, for plain meaning, much depends on the reasons for ordinary meaning.

The Conclusion sums up the implications for legal practice. First, courts and litigators should be clear about when they are making a claim about ordinary meaning as opposed to plain meaning, given their different interpretive consequences. Second, courts should ensure they match the correct consequences to ordinary meaning and plain meaning respectively. Third, courts should enforce ordinary meaning as plain meaning only when it is plain from a term’s statutory context that it bears its ordinary meaning.

What lies outside this Article’s scope, however, is whether ordinary meaning and plain meaning are coherent guideposts for statutory interpretation. There is, to be sure, profound disagreement on that score. But what I take to be a less controversial point is that today’s practitioners and courts operate in an environment in which claims about ordinary meaning and plain meaning are facts of life. So this Article is written in the spirit that, regardless of one’s views on ordinary meaning and plain meaning, it is worth trying to understand how they relate.

  1.  E.g., Gonzales v. Carhart, 550 U.S. 124, 152 (2007) (“In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result.”). ↑
  2.  Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2015); see also William N. Eskridge, Jr., Interpreting Law 33 (2016) (calling the ordinary meaning canon “[t]he prime directive in statutory interpretation”); Antonin Scalia & Bryan A. Garner, Reading Law 69 (2012) (“The ordinary-meaning rule is the most fundamental semantic rule of interpretation.”). ↑
  3.  E.g., Burns v. Alcala, 420 U.S. 575, 580 (1975). ↑
  4.  E.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“[W]here . . . the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’” (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))). ↑
  5.  Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992). ↑
  6.  Cf. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev
    .

    419, 420 (2005) (“[T]extualism does not admit of a simple definition.”). ↑

  7.  See, e.g., Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev
    .

    1915, 1973–74 (finding from a statistical analysis of the U.S. Reports that the Supreme Court’s use of “plain meaning” and “ordinary meaning” has increased exponentially since the 1970s). ↑

  8.  See 1 William Blackstone, Commentaries *59 (“Words are generally to be understood in their usual and most known signification . . . .”); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C.J.) (observing that a legal text’s “words are to be understood in that sense in which they are generally used by those for whom the instrument was intended”); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev
    .

    417, 417–18 (1899) (positing that legal interpretation asks “what [the] words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”). ↑

  9.  Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 23 & n.238 (2022) (documenting how “all current members of the Supreme Court have invoked this rule of ordinary meaning”). ↑
  10.  See, e.g., Amy Coney Barrett, Assorted Canards of Contemporary Legal Analysis: Redux, 70 Case W. Rsrv. L. Rev
    .

    855, 856 (2020) (“Textualism . . . insists that judges must construe statutory language consistent with its ‘ordinary meaning.’”). ↑

  11.  Kevin Tobia, Brian G. Slocum & Victoria Nourse, Statutory Interpretation from the Outside, 122 Colum. L. Rev
    .

    213, 217 (2022) [hereinafter Tobia et al., Statutory Interpretation] (finding from a sample of six million cases that “[o]ver the past fifty years, citation to ‘ordinary meaning’ has tripled”). ↑

  12.  See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev
    .

    621, 623–24 (1990) (describing the development in the 1980s of a methodological commitment to enacted text over legislative history as “the new textualism”). ↑

  13.  In 1892, the Supreme Court famously articulated a quite different rule “that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). ↑
  14.  See Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev
    .

    195, 197–98 (1983); cf. Arthur W. Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum. L. Rev. 1299, 1302 (1975) (describing “the refusal of the courts to abandon” the plain meaning rule despite “reports of its death”). ↑

  15.  Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev
    .

    109, 164 (2010); see also John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev

    .

    1287, 1309–10 (2010) (describing the “defining feature of ‘second-generation textualism’” to be the “proposition that courts must respect the terms of an enacted text when its semantic meaning is clear, even if it seems contrary to the statute’s apparent overall purpose”). ↑

  16.  Cf. Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev
    .

    76, 95–97 (2021) (finding that the “text/plain meaning” of a statute was the most used interpretive source other than precedent in a sample of statutory interpretation cases from 2005–2017 Supreme Court Terms). ↑

  17.  Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, at 8:29–30 (Nov. 17, 2015), https://www.youtube.com/‌wat‌ch?v=dpEtszFT0Tg [https://perma.cc/R67U-65ZS]. ↑
  18.  Indeed, when Justice Kagan later quipped about this remark that “[i]t seems I was wrong,” she was faulting the Court for using a “get-out-of-text-free card[].” West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting); John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev
    .

    113, 129–30 (describing “nontextualist” Justices’ acceptance of the plain meaning rule). On Justice Kagan’s remark and her later retraction, see generally Kevin Tobia, We’re Not All Textualists Now, 78 N.Y.U. Ann. Surv. Am. L. 243 (2023). ↑

  19.  William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev
    .

    1079, 1084–85 (2017) (developing an account of legal canons as part of the unwritten law that governs legal interpretation). ↑

  20.  See sources cited infra notes 310–11. ↑
  21.  William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev
    .

    539, 545 (2017). The wonderful “plain vanilla” example is theirs. ↑

  22.  See infra Part III. ↑
  23.  See Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev
    .

    2193, 2202 (2017) (noting that textualists accept that “terms are sometimes used in their ordinary and sometimes in their technical sense”). ↑

  24. H.R.

    Rep

    .

    No. 96-1353, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 3786, 3787. ↑

  25.  Me. Stat. tit. 30, § 6203(8) (2023). The federal Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, § 3, 94 Stat. 1785, 1786–87 (1980), incorporates the definition from the Maine Implementing Act, Me. Stat. tit. 30, § 6203(8) (2023). See 25 U.S.C. § 1722(i). ↑
  26.  See Penobscot Nation v. Frey, 3 F.4th 484, 491 (1st Cir. 2021) (en banc) (determining from dictionary definitions that it is “clear” that “an island is ‘a piece of land’” and that “[l]and does not ordinarily mean land and water”). ↑
  27.  See Alaska Pac. Fisheries v. United States, 248 U.S. 78, 86–89 (1918) (interpreting a reference to “the body of lands known as Annette Islands” in the statutory definition of the Metlakahtla Reservation and holding that “the geographical name was used, as is sometimes done, in a sense embracing the intervening and surrounding waters as well as the upland—in other words, as descriptive of the area comprising the islands”). ↑
  28.  Me. Stat. tit. 30, § 6207(4) (2023). ↑
  29.  Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 186 (D. Me. 2015) (“None of those islands contains a body of water in which fish live.”). ↑
  30.  See Penobscot Nation, 3 F.4th at 491 & n.5 (“Because ‘islands’ is an undefined term, we construe it in accordance with [its] ordinary meaning.” (internal quotation marks omitted) (citation omitted)); id. at 493 (citing McGirt v. Oklahoma, 140 S. Ct. 2452, 2469 (2020) (“There is no need to consult extratextual sources when the meaning of a statute’s terms is clear.”)); see also id. at 490–91 (citing additional plain meaning precedents); id. at 496 (“[The statute’s] reference to these treaties does not alter the plain meaning of ‘islands’ and creates no ambiguity.”); id. at 503 (“This canon only applies to ambiguous provisions.”). But see County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985))). ↑
  31.  140 S. Ct. 1731 (2020). ↑
  32.  Id. at 1738 (quoting 42 U.S.C. § 2000e-2(a)(1)). ↑
  33.  Id. at 1754. ↑
  34.  See, e.g., Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265, 266 (2020) (“Bostock revealed . . . important tensions within textualism.”); Ilya Somin, Bostock v. Clayton County and the Debate over the Meaning of “Ordinary Meaning,” Volokh Conspiracy (June 19, 2020, 11:25 PM), https://reason.com/volokh/2020/06/19/bostock-v-clayton-county-and-the-debate-over-the-meaning-of-ordinary-meaning/ [https://perma.cc/ZS6W-YN87] (describing “an interesting dispute over what exactly counts as ‘ordinary meaning’” between Justices Gorsuch and Kavanaugh in Bostock); Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev
    .

    461, 465–72 (2021) (arguing that Bostock revealed competing versions of “empirical textualism”—one focused on “what ordinary people understand [a provision] to mean, applying their own criteria” and the other focused “on the ordinary application of the established legal criterion . . . to interpret and apply the” provision). ↑

  35.  Bostock, 140 S. Ct. at 1741 (“From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”). ↑
  36.  Id. at 1750. ↑
  37.  Id. at 1743, 1748–50, 1752. ↑
  38.  Id. at 1751. ↑
  39.  Id. at 1754. ↑
  40.  See infra notes 404–07 and accompanying text. ↑
  41.  Bostock, 140 S. Ct. at 1738. ↑
  42.  See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 71–72 (2001). ↑
  43.  Scalia & Garner
    ,

    supra note 2, at 436. ↑

  44.  See, e.g., sources cited infra notes 99, 103, 114–15, 120–22. ↑
  45.  See, e.g., sources cited infra notes 135, 196, 215. ↑
  46.  See Baude & Doerfler, supra note 21, at 545 (noting that “plain” means obvious under the plain meaning rule, as distinguished from its occasional use “to denote something like ordinary meaning”); Eskridge
    ,

    supra note 2, at 33 (“‘Plain meaning’ ought to be reserved for a judicial declaration that there is a clear legal meaning for the provision in question . . . .”); Peter W. Schroth, Language and Law, 46 Am. J. Compar. L. 17, 26 n.41 (Supp. 1998) (“Ordinary meaning seems to differ from plain meaning, in that the former denotes something like ‘the sense this expression usually has in such contexts’ while the latter may require absence of ambiguity.”); Slocum

    ,

    supra note 2, at 23–25 (briefly distinguishing the ordinary meaning canon and plain meaning rule). ↑

  47.  Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev
    .

    726, 736 (2020) [hereinafter Tobia, Testing Ordinary Meaning]; see also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 234 n.6 (observing in a footnote “the important point that plain meaning is not equivalent to ordinary meaning”). ↑

  48.  See infra note 84 and accompanying text. ↑

  49.  See Ryan D. Doerfler, How Clear Is “Clear”?, 109 Va. L. Rev. 651, 657–58 (2023); Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev

    .

    1497, 1505–09 (2019). ↑

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