Introduction

Perhaps the most important recent instance in the news of a widespread need to find a word’s definition occurred after former president Donald Trump was sued in 2016–2017 for abusing the domestic and foreign Emoluments Clauses of the United States Constitution. A perfunctory Google search asking “what does ‘emolument’ mean” yields 1,600,000 results, starting with numerous dictionary sites. Narrowing the query to “Trump emoluments dictionary” yields 360,000 results. The search engine also offers several questions to click on underneath the first items displayed: “What is the emoluments clause in simple terms?”; “What is the meaning of emoluments?”; and “What does the Constitution say about emoluments?” These search results indicate that many people understood that something important was happening, and that they wished to know how former President Trump was connected to emoluments, as well as how emoluments have been related to the Constitution. I present that example to show that even while there was more than one lawsuit against then president Donald Trump for using his public office to enrich himself privately, it appears that many of the American people did not know the particulars of the suits or their contents. Nor did they know where in the Constitution the legal principle may be found. Even if people were aware that there was a possible constitutional crisis underway, the topic is not generally well-known, and defining the term needs to be the first step in understanding the potential damage to the nation.

The search questions and results above show that, typically, when people are interested in knowing the meaning – or spelling – of a word, they reach for a dictionary. Today, rather than pulling a printed dictionary from a bookshelf, they usually turn to readily accessible free online dictionaries, which initially show one or two lines; anyone wishing to find out more must expand the text box to see additional lexicographical information. If users wish to know an older, even archaic, meaning of a word, it is unlikely that they would readily find anything online for free. Perhaps because of readers’ lack of interest in etymology – the history of a word – or because etymology is typically located after the parts of speech, various senses, and sample sentences, the result is that often detailed information on the biography of a word – how it entered English from another language, or its change over time – is usually not found or is behind a paywall, and thus getting that information becomes less of a priority than the speed with which an on-demand digital world provides a snap definition. There are, however, people for whom knowing the history of words is critical; parsing meaning is often taken very seriously in the business community or in the legal field. In the United States, understanding the meaning of a word as it was used during a particular time has become essential in certain circumstances, such as copyright law. For instance, when a term – or a specific usage of that term – came into being could mean a company might claim rights to a product or to its name. Similarly, trying to accurately pinpoint the meaning of a term from the colonial period in United States history could affect how a statute is understood and implemented today. Those people who focus on practical applications of etymology provide high-stakes examples of how business is conducted or how laws are applied.

As the above examples suggest, those who work with etymology can have outsize power over their fellow citizens’ lives. Today’s meanings may not tally with the meanings assigned when a text was written. Many jurists invested in the history of language wish to discern how the authors of the United States Constitution and other essential founding documents intended for those texts to be interpreted and implemented, as if the law could be frozen in amber by fixing words and meanings as they were used and understood then. It is widely believed today that the reading and interpretation of laws ought to be reflected in the language of the time when they were written, the eighteenth century. Such jurists often seek confirmation from old English language texts and dictionaries, looking for what would be considered an “original” meaning, that which the founders intended. A problem arises when they fail to fully accept that language is constantly changing, and that it was even more greatly in flux when the old dictionaries they consult were being written and published. It is precisely because English was changing that there was an enormous need for models of linguistic propriety in words, rules, and writing. Even lexicographers and grammarians (who were often the very same people) could not agree on what was correct; some of their linguistic postulates were meant to enlighten, while others were meant to simply sell books. The presumption today that the language found in old dictionaries could be depended on by scholars and jurists is hardly correct because we cannot fully appreciate the nuances and contexts of earlier times; ultimately, the best understanding of what people wrote and thought about during the colonial period is based on educated guesswork formed from inductive research.Footnote ¹ One might imagine that jurists who make a habit of searching for original meanings in early texts would have an authoritative canon of old dictionaries as well as being trained in analysis of their content and context. Those presumptions, however, are wrong, as there was no consensus even among lexicographers of that period as to what was the best language to define.Footnote ²

The purpose of this Element, then, is to explain how and why old dictionaries must be used with caution, even skepticism. Such an approach should be combined with knowledge of the politics, education, economics, and other important issues in England and the United States during the early modern and colonial periods to highlight what is essential to good legal work as well as to good scholarship. The Element provides a case study on how old dictionaries have been employed for political – partisan – purposes to cherry-pick definitions of words rarely used today in support of a legal argument. As there is no such thing as a fixed language and we are always merely playing catch up, we can never completely know the full conditions under which a word was used historically. It is because of our lack of understanding of language in the past that prescriptivism – seeking out rules for language and definitions – does not prevent mistakes. We are most effective in determining the old meanings of words when we try to ascertain how others understood language and then base our interpretations on precedent and collective agreement of the outer boundaries of acceptable meaning. The further from agreement we are, the less clear and more arguable are meanings.

The urge to employ dictionaries, and specifically English dictionaries, from the colonial period when the United States was founded, can be traced recently to lawyers and judges who ascribe to a newer theory of textualism which posits that it is possible to find objective, original meaning in texts written during an earlier period to provide the correct usage.Footnote ³ To them, it is wrong to rely on a legislature’s intent or a legislative history for meaning. While many textualists know that language is dynamic and a social construct, in general they hold that meaning should be based on a text’s or a word’s context, including nearby words. The number of judges who follow this newer form of textualism, led most famously by the late Supreme Court justice Antonin Scalia, has grown over the last several decades, and consequently, the number of dictionaries cited has also risen.Footnote ⁴ Jonathan Siegel explains that Justice Scalia’s reliance on textualism has had an outsize effect on the legal profession and has inspired other judges to prioritize dictionaries without knowing what went into writing them, contrary to what the other, older form of textualism in practice has allowed. Siegel (Reference Solan and Robinson2009: 117) writes:

In response to courts relying more heavily on dictionaries, there has arisen a robust body of scholarly research that analyzes rulings and provides commentary on how jurists have used dictionaries. Scholars who object to the overreliance on a textualist’s assertion that only the text and its meaning are important are engaging with an argument much like the critical theory and new historicist debates of the last quarter of the twentieth century against the New Critics, who believed only the text is reliable.Footnote ⁵ Scholars and critics have determined that though the impulse might be sound, this habit of using dictionaries has not been professionalized or codified, resulting in problems and pitfalls such as the perception that a dictionary is a more assertive means of ascertaining meaning than relying on a legislature; or that a dictionary is an objective reference tool without bias. These textualists have recently become concerned with centering language without much of its context.

One of the main arguments against this new form of textualism is that jurists who employ dictionaries often use them without understanding the limitations of the definitions they contain.Footnote ⁶ They also neglect to understand how a word’s definition – or its “prototype,” in linguistic terms – needs to be identified, not on usage in a particular circumstance, but by its “outer boundaries,”Footnote ⁷ that is, the range of acceptable meanings of a term before it begins to lose clarity and consensus. Chief among the critics of the new textualists is Lawrence M. Solan, who points out that much of the scholarship written about courts using dictionaries is generally negative:Footnote ⁸ jurists seem not to understand that just because old dictionaries are contemporaneous to founding documents, this does not necessarily mean they are more reliable: They may not be any more neutral than the texts themselves, and their entries may not be ordered consistently.Footnote ⁹ It is thus good to recognize that what is considered to be an ordinary meaning in a legal document will not necessarily be the first sense provided or that the different senses of a given word will be ordered in the same way by different lexicographers. Lawyers and lexicographers are, of course, in different fields with different and sometimes divergent motivations. Moreover, lexicographers historically have not employed systematic ways to define words or categorize senses; until recently, they could use intuition and provide only examples from literate, printed sources which by nature are more conservative than speech because of the need to document usage. In fact, it was not until the mid eighteenth century and Samuel Johnson’s Dictionary of the English Language that lexicographers routinely began to refer to words in use and to provide illustrative citations. Lexicographers, particularly during the eighteenth century – the period that interests US jurists today – certainly have not used more objective methods to catalogue words and definitions and so their work can be easily misunderstood, manipulated, or misused. There are numerous cases of lexicographers borrowing from each other, plagiarizing each other, and selectively using certain source material in their definitions or samples.Footnote ¹⁰ While Johnson is considered the lexicographer who caused the field to become more professionalized than it had been because he employed assistants and was one of the first to rely on his own writing income, he alone did not cause the field to become more uniform and predictable. This only happened in the nineteenth century, when Richard Chenevix Trench, then a member of the Philological Society, published his landmark study, “On Some Deficiencies in Our English Dictionaries” (Trench 1857). Charlotte Brewer (n.d.) writes that Trench

To show important ways old dictionaries have been constructed and also used in the law, this Element has two sections of theoretical and practical discussions and closes with a short discussion of how academic work can publicly engage issues of power, language, and authority. Section 1 provides several examples of how language in legal discourse and cases can indeed be unclear to both lay readers and legal professionals. This opacity of language perhaps leads some jurists to believe that legal texts are in need of the kind of clarity that comes from using a dictionary, one of the most common reference books available. The section continues by detailing how English lexicography in the eighteenth century was responding to linguistic uncertainty; one reason for this phenomenon was increased literacy brought about by the rise in a middle class and increased educational and professional opportunities. The authors of dictionaries were keen to provide prescriptive self-help manuals for readers to learn privately how to navigate a different lexical environment. Taking a cue from the pioneering work by DeWitt Starnes and Gretchen Noyes (1991/1946), Section 1 also studies how specific words – “ordinary” and “emolument” – developed over time and across several eighteenth-century English dictionaries. Almost all of the early English dictionaries of that time, notably those by Samuel Johnson and Noah Webster, who have been cited considerably of late, were prescriptive, meaning that the authors were concerned with creating rules about language, rather than observing language in use. Johnson is known for the establishment of some of the most significant lexicographical and editorial principles, and Webster is lauded for asserting a declaration of independence of American lexicography from English lexicography.

Section 2 excerpts John Mikhail’s article “The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523–1806” (Mikhail, Reference Mikhail2017a), which was written in response to and took issue with the Department of Justice’s brief in response to CREW et al. v. Trump, accusing then-President Trump of violating the domestic and foreign emoluments clauses of the United States Constitution. The Trump Department of Justice document only cites old dictionaries that correspond to its premise that Trump did not break the law; Mikhail thoroughly demonstrates how the Trump Department of Justice cherry-picked definitions to suit its claim that an emolument was merely “profit arising from office or employ,” a minor sense of the definition, instead of the much more common sense. According to Mikhail, this other sense is to be found in more than 90 percent of extant early English dictionaries “published between 1604 and 1806 [which] define ‘emolument’ in a remarkably uniform fashion, regularly consisting of one or more of the following terms: ‘profit,’ ‘gain,’ ‘advantage,’ and ‘benefit.’”Footnote ¹¹ Mikhail painstakingly documents the lexicographical evidence of which of the two senses predominated, as well as which dictionaries the founders were likely to have obtained and read; he even supplies contemporaneous examples of “emolument” written by the founders that show how the Department of Justice’s definition elided the kind of historical evidence on which it claimed to rely: that it was an obscure term, uncommonly used. Rather than accept the argument that both senses were equally plausible, Mikhail instead presents copious evidence that the Department of Justice’s choice of texts was so small a sample as to make its argument irrelevant. Mikhail in this manner scotches the Department of Justice’s claim that “emolument” was a term of art in the eighteenth century; to call it a term of art would mean that it would have been confined to a specific and narrow field, which he shows is plainly untrue. While the word “emolument” is rarely used today outside of financial or legal fields, it was used during the founding period regularly enough for it to appear in the majority of general dictionaries, rather than in “hard word,” or specialized, dictionaries. Together, these sections present not just a fascinating and near-contemporary case history of the misuse of old dictionaries by the legal profession – one that could have had lasting effects on the United States government – they explore in incisive ways how legal theories and the application of lexicographical ideas are not congruent fields. They can be complementary, but should be treated, as this Element shows, with care and awareness of the fallibility of their authors. Dictionaries from earlier periods, we will see, are artifacts, but they are not meant to be looked at objectively as mirrors of language; rather, they are meant to be considered almost a Platonic idea of what language ought to be, based on the kinds of words, definitions, senses, examples, and sources to which those writing them had access, and even their own backgrounds. Instead of collect books and study their contents as if they accurately represent the past to us, those who want to study dictionaries and the law should think of them as orthographic projections of extraordinary desires, and never as repositories of ordinary language.

It is hoped that this Element will help readers to understand that nothing is free of bias, even works that proclaim their objectivity. Merely choosing a topic of study is a form of bias, as it reveals the author is interested in one side versus another. Addressing the problem of bias by acknowledging it and attempting to identify its sources can be key to ameliorating it. The lack of openness regarding bias – or the disregard of the explicit bias in early English dictionaries by jurists today – can lead one to assume that the argument or perspective is settled belief, instead of an ideology that is more or less accepted by the group that holds sway in society. One of the most potent legal and political disputes in the United States over the last several decades is found in how the Second Amendment of the United States Constitution is interpreted. This debate hinges on eighteenth-century language; the amendment can be read in more than one essential way. While the Supreme Court in 2022 and beyond seems prepared to defend the inclusion of assault rifles under the Second Amendment, a study finds that of the thousands of eighteenth-century newspaper advertisements selling firearms, those that refer to repeating rifles – guns capable of firing several shots in rapid succession – are “exceedingly rare.”Footnote ¹² This study, then, should give credence to the argument that the “right to bear arms” would not have typically considered repeating rifles to be common or safe enough to be covered by the Second Amendment. Just knowing the meanings of words from today and applying them to content of yesterday ignores the reality of how dictionaries functioned: they work best in their own time, when we do not project onto them what we now believe them to be.

1 There Is No Ordinary Reader; Or, Issues Concerning Historical English Dictionaries

Legislators, lawyers, and judges who write and interpret laws – in order to achieve mutual comprehensibility in their own legal context but also in the broad social and linguistic framework – should agree on the meanings of words and language, since the way that laws are written shapes and controls the way people live and institutions operate. Conflicts and disagreements abound, however, about the meanings of words in court and in legal cases. Because laws or texts were written long in the past, we are no longer sure that the meanings are the same. Those people charged with reconciling language with meaning often invoke what words are supposed to imply, often by studying words in isolation (by consulting dictionaries) or reviewing adjacent words (by using a computer-generated corpus).Footnote ¹³ Putting a word in broad context can be important to understanding its meaning at a given time. Thus, the Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”Footnote ¹⁴ But many individual words in the amendment have been vigorously contested: “well regulated,” “militia,” “State,” “keep,” “bear,” and “arms.”Footnote ¹⁵

Another law that contains contested language is the British North America Act of 1867, which unified colonial entities within Canada. The language of that act determined that women were not considered “qualified persons” and therefore were excluded from being appointed to offices by the Governor General. It is not that the term “qualified” changed, but who was qualified changed.Footnote ¹⁶ A more recent example of defining key terms comes from the libel case that former Alaska governor and vice-presidential candidate Sarah Palin brought against the New York Times. As reported by Jeremy W. Peters (2022), an editorial in the newspaper used the word “incite” to connect her falsely to a shooting. The issue under consideration was whether she could have been defined as a “public figure” – the court ultimately found against her. Identifying the truth conditions of a word or term based on context should make the meaning clear, though the truth of something may change over time; hence, the change in word meaning.

As a result of disputes that can arise when determining the meaning of language in law, lawmakers, jurists, and legal professionals often look to dictionaries to guide their arguments or decisions. Legal scholars have shown that, particularly in the United States, judges refer to dictionaries to help interpret meaning, and the percentage of jurists who rely on dictionaries has increased greatly since the last decades of the twentieth century,Footnote ¹⁷ perhaps reaching absurd levels: in an oft-cited article, Adam Liptak (Reference Liptak2011) describes Chief Justice John Roberts using several dictionaries to look up words – one of which was “of” – to confirm that “it means pretty much what you think it means.” Certain legal professionals have come to rely on dictionaries to understand language from the colonial period and founding era of the United States more often in the last four decades than in the century before, and despite legal precedent. Not only do they reach for current dictionaries, they also have used dictionaries from the period when the laws were written, often the eighteenth century; one reason for an increased reliance on old dictionaries is that judges use them to find out the “original” meaning of a term – based on the assumption that this is to be found in such reference works – in order to interpret properly the law today.

In light of how seventeenth- and eighteenth-century dictionaries address issues different to those from our own period,Footnote ¹⁸ it is essential to present some caveats about what makes using old dictionaries in court problematic. A main concern for those who reach for eighteenth-century dictionaries should be how they are now considered texts that document the language of an age that is vastly different from our own. According to Jason Weinstein (Reference Webster2005), as a result of referring to dictionaries as much as they do, justices have effected “a nearly complete abandonment of another contextual source – legislative history.” When Justices turn to overused interpretation of statues, the desire to cite authority does not dissipate. Therefore, as Weinstein discusses, opinions on statutory interpretation frequently cite no legislative history, dictionaries, or other seemingly neutral sources as justification. While legal opinions have hinged on definitions (especially since the 1990s), justices have relied on “citations to prior authority such as case law” (Weinstein Reference Webster2005). What has generally been lacking is a guide from a lexicographical perspective that will assist jurists in understanding who the early lexicographers were, who they developed their work for, what ideologies propelled them, as well as the hazards of applying current contexts to historical ones. It is hoped that once these concerns are laid out, those in the legal profession might be more inclined to see dictionaries as supportive instead of as authoritative.

After the reformation of the Anglican Church in England, many ministers found themselves on the wrong side of the Crown and the law. As their beliefs and practices were no longer wanted, these Dissenters had to find a field that suited their skills, and education of various sorts became a sensible profession (Shapiro Reference Siegel2017: xviii). Lexicographers wrote with specific goals in mind, such as to instruct women and servants in the Christian Bible, to provide the ability to read and pray silently, or eventually to take to the ministry themselves. Others later wished to focus on spelling reform and enunciation, even adding diacritical stress marks so readers could practice these new words in speech.Footnote ¹⁹ Moreover, early lexicographers had clear agendas for reading sacred texts or understanding “hard” words – terms of art often borrowed or translated from other languages into English – to increase their audiences of literate readers and also create new readers. Additionally, word lists and definitions were lifted unapologetically from earlier or competing dictionaries. Sidney Landau (Reference Letter of Milton2014) writes that “exclusive ownership of published material, though doubtless cherished, was not a reasonable expectation if its commercial value was likely to be great. The indignations sometimes expressed by early lexicographers did not make them stint from copying from others” (50–1), though they were often careful to cite predecessors’ dubious choices or failed attempts. Claims of authority over language unite many dictionary authors; they maintained that their methods, word lists, or purposes were different when in fact they were often remarkably similar. In particular, borrowing word lists and verbatim definitions helped to solidify the reach of linguistic prescriptivism during that period and the perception of formality during ours, as DeWitt Starnes and Gretchen Noyes first discussed in 1946 (Starnes and Noyes 1991/1946: 49–57). Indeed, John Considine (Reference Considine2015) disputes the modern idea of plagiarism existing in early dictionary making; what borrowing meant then was more flexible than our understanding today, as we generally consider quotations without attribution to be plagiarism. The borrowing that occurred meant that these new reference works could increase social cohesion with individual reading, English literacy, and linguistic conformity – things we might now assume were the case but in fact were not fully adopted. These and other educational texts smoothed the way for historical changes such as early capitalistic markets and social mobility. The ubiquity of borrowing by competing lexicographers created not only competition but outrage and news – it also had the effect of norming certain words for users and creating the assumption today that language was more fixed than it was.

Lexicographical order was not employed during this time, as it was just beginning to be set. As the scientific world expanded, so did the lexicographical one, and over time methods and styles were established. Likewise, during this time, several scholars and lexicographers attempted to establish more structure and create a government-sponsored academy for regulating English, much like the Spanish, Italian, and French ones.Footnote ²⁰ Daniel Defoe’s Essay on Projects discusses the need for a regulating body, and Jonathan Swift advocated for an academy, as well. Each time, they failed to impose order.

Just as there was only nascent order in lexicography in the founding era, so there is no organizing canon of old dictionaries that legal practitioners consult, with the exception of those by Samuel Johnson (Reference Johnson1755), Noah Webster (Reference 59Webster1828), and the law dictionary Black’s. Therefore, if a legal professional wishes to use other dictionaries of that time period, they should understand words in their historical contexts and be guided by the paratextual matter of dictionaries. Consider how the word ordinary has been cited or used in legal circles in recent decades. The term ordinary is frequently used to indicate something that is usual and has commonality, though it entered civil law and the language through its application in canon law. The English word was borrowed from Latin and then French; in the medieval period ordinary was a noun referring to “a person who has, of his or her own right and not by the appointment of another, immediate jurisdiction in ecclesiastical cases, such as the archbishop in a province, or the bishop or bishop’s deputy in a diocese.”Footnote ²¹ While that initial sense still occurs today, the term eventually predominated as a secular term and in legal language. To get a sense of the long history of the word, its first legislative sense is found in John Cowell’s The Interpreter: or Booke Containing the Signification of Words (1607) as:

That definition is repeated in Thomas Blount’s Glossographia (1656):

Shortly afterwards, Cowell’s definition reappears in Edward Phillips’s The New World of English Words (1658), largely verbatim:

It is easy to see that many definitions of this term are not original and are repurposed, as per custom. By the middle of the eighteenth century, the ecclesiastical sense of ordinary as a noun was becoming archaic, as John Kersey the Younger (Reference Kersey and the Younger1702) wrote in A New English Dictionary: “a Diocesan Bishop, or his Suffragan.” We see how the sense of the word changed diachronically; lexicographers reusing language affirmed many definitions as part of the lexical record – a form of lexicographical precedent – but without evidence of the word in use other than in formal documents like dictionaries it is impossible to determine common usage.

The other sense of ordinary, the adjective familiar to contemporary English users, is related to the judicial one and refers to something being the norm, usual, customary. The Oxford English Dictionary’s first use of this sense of ordinary is “Belonging to the regular or usual order or course of things; having a place in a fixed or regulated sequence; occurring in the course of regular custom or practice; normal; customary; usual.” Because current users of English are unfamiliar with the earlier religious sense it is easy to imagine someone misconstruing the older meaning, such as in a Middle English translation of Alain Chartier’s (Reference Chartier and Blayney1965/1617) French text, “His iustice is thyne ordenary iuge, but His mercy He made a party.”Footnote ²² That is, it might be possible to perceive the judge to be a civil jurist, when he was not one at all. Today, because lexicography is dominated by descriptivism and the observation of language in use, the authority of a definition of a word in use and not necessarily in print means that repeated use establishes precedence, though this kind of precedence is different from that in the legal profession.

The reality is that most users of dictionaries today do not know the theoretical principles that organize the dictionaries they use – in print, but especially online. For the most part, editorial decisions remain in the background. We assume that certain principles are in place with respect to alphabetization, sense ordering or disambiguating, or adding more encyclopedic information. We have come to expect our wishes to become literal commands. In the past, however, such information could not be assumed, and therefore dictionary users were instructed to read the dictionary in order to use it. For example, the majority of dictionaries published before and during the founding era focused on the educated variety of English used in metropolitan regions, particularly London and, to a lesser extent, Edinburgh, as both cities were seats of learning, culture, and commerce. Focusing on such a narrow slice of the English-speaking population meant that dialectal senses, regionalisms, and cant were excluded by design in order to create a fixed, national language. This is unlike many dictionaries of today, which have usage notes to indicate which words deviate from the standard. With few exceptions, such as the dictionary by William Kenrick (Reference Kytö and Paivi1773) whose word list comprised primarily basic words, dictionaries of the seventeenth and eighteenth centuries did not include language as it was used by, everyday people, as authors were concerned that vulgar or incorrect English would corrupt speakers and readers.

Taking pains to educate readers in what they considered appropriate ways of understanding and speaking English, early lexicographers added notes and pronunciation marks for guidance. Thomas Sheridan, a former actor and schoolmaster, wrote a pronouncing, or orthoepic, dictionary to correct what he believed to be poor speech habits and uncouth accents. James Buchanan, a Scots lexicographer and schoolmaster, was likewise interested in proper stress and pronunciation; Samuel Johnson provided sample sentences to illustrate how a word should be used. While Johnson’s sample sentences and sources allowed readers to contextualize words, Ellen Aprill writes that those samples are culled from some of the most elite authors in philosophy, science, and literature and are the social class equivalent of using the New York Times as source material (Reference Ash1998: 292). Rather than reflect the vernacular language of users, dictionaries, written by and for the educated and the elite, imposed arbitrary prescriptivism and subjective judgment in their texts and on their readers. Moreover, as lexicographers reused each other’s language, they affirmed that some words and definitions would become part of the lexical record – a form of lexicographical precedent. It is important to understand that seeing how words are repeated among dictionaries but without having additional evidence of language in use, we cannot always be fully certain of ordinary meaning. Therefore, to be more assured of common or ordinary meaning for some words during the founding era, a fuller search should include online databases of historical books, ballads, pamphlets, newspapers and other popular published material, which would provide additional evidence of usage in a variety of contexts.Footnote ²³ Even so, it is crucial to note that these databases do not document literacy or a work’s popularity; instead, they collect extant texts and let the reader infer.

Dictionaries were commercial products. As with paratextual matter establishing an author’s bona fides, they were sold on the basis of this work being better than that work, as theirs had the “best” words. (If that is not subjective, it is hard to see what is.) Soon, early dictionaries became packed with information unrelated to actual definitions, becoming more like almanacs or encyclopedias, including information on important market days, holy days, monarchs, and the like.Footnote ²⁴ These jam-packed dictionaries were not well-organized, methodologically sound texts based on the kinds of orderly lexicographical principles that we assume today. Not until Nathan Bailey and Samuel Johnson in the mid eighteenth century explicated their reasons for adding or subtracting words, citing sources, and identifying errors did the field move towards professionalization. And those who assume early lexicographers were motivated by anything other than profit or esteem and their work was neutral run the risk of perpetuating the mistakes of their forbears, not eliminating them.Footnote ²⁵

It is critical when learning about the history of early English dictionaries to note that these authors believed that English should be tamed and that they needed to prescribe fixes for English. Prescriptivism, then and now, means that while these authors understood that language would change, they believed that it was their responsibility to impose constant vigilance on it and indicate what was correct or not. Lexicographers during the founding era did not want to expose the reader to ordinary language at all, so solely using old dictionaries to ascertain what was common at that time is not a reliable way to understand meaning. In fact, some lexicographers found ordinary language distasteful, a form of vulgarity or deterioration (Landau Reference Letter of Milton2014: 244). Dictionaries before the twentieth century did not represent all usage or all users, so those seeking to comprehend words during the time a law was written were unlikely to find them in a typical or everyday manner requisite for most users. When jurists and legal professionals use dictionaries – old and new – to understand earlier meaning or intent but without lexicographical knowledge, their conclusions may create precedents in language that do not reflect actual usage; rather, a prescriptivist approach then and now reveals that what dictionaries promoted was an ideal meaning.

Despite what people might want from dictionaries as far as a definitive answer on meaning, they do not provide sufficient ways to “fix” – or set – language. They do, however, provide information as to its use during a particular time, area, or circumstance. Not only can language not be fixed, but it is essential to acknowledge that it changes, even before and while dictionaries are produced. The most famous claim about “fixing” the language derives from Samuel Johnson’s (Reference Kytö and Paivi1747) “Plan of a Dictionary,” in which he presents a rationale for his forthcoming monumental A Dictionary of the English Language (Reference Johnson1755). In the “Plan,” Johnson details his choices to include or exclude words as well as how and why they should be spelled or pronounced. Scattered throughout Johnson’s preliminary text are words that might appeal to someone seeking a definitive answer for why English needed to be reformed or adjudicated, as he uses words such as “corrupt,” “rules,” and “permanent”—language that would seem to illustrate a grave problem. Indeed, he states that “one great end of this undertaking is to fix the English language,” by which he means to stabilize and set it for posterity (Johnson Reference Kytö and Paivi1747: 12). Johnson’s ambitions, however, were quashed by the time he wrote the preface to his dictionary eight years later. He would, in just a few years, conclude:

In that section Johnson also discusses the proper pronunciation of words, orthoepy, which was an important topic for eighteenth-century lexicography. Johnson’s shift from wholly prescriptive to aspirationally prescriptive should alert modern readers that even Johnson, considered the most influential lexicographer of English, could not do then what they want to do now. Those who wish to know how words were used during an earlier period would do well to study the front matter, footnotes, and back matter, where authors and editors present their perspectives. Instead, readers will likely turn directly to the words as they do with contemporary dictionaries, creating a knowledge vacuum with respect to why dictionary writers made certain choices—what they included, left out, how senses were ordered, who was the audience, and so on – and how a current reader can approach this information. To ignore paratextual matter in old dictionaries precludes understanding the language these old texts document; their goals and objectives were different to those who seek meaning and definitions today.

Johnson’s comments about language occur in a section on what comprises proper pronunciation, which other eighteenth-century dictionaries promoted in addition to defining words and providing grammatical advice. Pronunciation has changed a great deal, not just from the passage of time, but also by virtue of geography: speakers in the United States created their own variety of the English language, of which accent, lexicon, and grammar were often distinct; and while jurists wish to know what words originally meant, at this time, pronunciation was, arguably, as important or even more important than defining words. This period in English history was when the economy and social classes were shifting, and more people were becoming literate and successful. Chief among the reasons for focusing on orthoepy as much as if not more than meaning are the rise in literacy rates as well as the rise in income and middle-class status. People were seeking the “correct” way to read, write, and use the language in speech; what had once been “hard words,” loans from other languages, or terms of art, were becoming more familiar, and people who could read now had opportunities to be more comfortable saying the words they read. Lexicographers were happy to oblige and dictated the “right” way to “English” the language.Footnote ²⁶ The reality is that so much of the linguistic and grammatical rules that developed during this period have been arbitrarily enforced, eliding the fact that meaning is arbitrary to begin with.

The most influential lexicographer in the United States is Noah Webster, who wrote dictionaries, grammatical works, and schoolbooks for a new nation’s readership. Webster’s important pedagogical work, commonly known as the Blue Back Speller (Reference Weinstein1788), was important to early nineteenth-century literacy projects and it remained an essential academic foundational children’s workbook for over a century.Footnote ²⁷ In addition to Webster’s pedagogical projects he helped to establish the American language as distinct from that of the British.Footnote ²⁸ In so doing, he explicitly quarrels with Samuel Johnson’s work. As Jack Lynch (Reference Lynch2006: 46) writes,

Webster, though, was an early believer in his national culture, and he was convinced that his language books could help to shape the country’s identity.

In his Compendious Dictionary of the English Language, Webster (Reference Mikhail1806) argued not just with Johnson’s theory of language and lexicography, but also lexical items and spelling. Another of Webster’s key assertions was that varieties of English other than British would eventually predominate. His politicization of the American language, or the language(s) of the Americas, was such that he asserts, correctly, that it would eventually have greater reach and influence than the language of England:

It is the case that contrasts in lexicon, senses, meaning, grammar, and accent make the English of Britain and that of its former colonies sufficiently different, so they should be considered separate varieties. Webster’s view of a British versus American language and literacy made his editorial choices – such as terminology, orthoepic and spelling reform, or commenting on the deficiencies of other dictionaries – necessarily politicize his lexicography, though no more than others with more subtle ideologies; Webster (Reference 59Webster1828) made his claims more explicitly in An American Dictionary of the English Language.

The takeaway from eighteenth-century lexicographical prescriptivism is that when so little of the English population was literate, using examples from historically canonical literature means that present-day jurists who rely on those definitions or sample sets are shown what the elite knew and wanted others to know; the early examples are not predictive of extensive societal usage and do not indicate how people with less education or awareness of classical or “great” literature would have interpreted language in a day-to-day, much less a legal context. Those who view language today through the lens of old dictionaries, but without the additional knowledge of history, reinforce elitist ideologies. Even lexicographers such as John Ray (Reference Ray1674) and Francis Grose (Reference Grose1785), interested in regionalisms and slang, narrowly focused on specific types of language reflecting specific users and were not representative of common usage. In fact, such “irregular” senses were actively discouraged, as lexicographers considered them inferior and unworthy of dictionary users who wanted to learn the “correct” usage of a word.Footnote ²⁹ The “correct” usage is also what would have been the “ideal” meaning; but because lexicographers put constraints on examples and sources, “ideal” then is helpful but not definitive for interpreting today.

A recent and striking example of how contemporary lawyers have used dictionaries is from the United States Department of Justice’s response to CREW et al. v. Trump. In 2017 several lawsuits were filed against then President Donald J. Trump for violating the foreign and domestic emoluments clauses in the United States Constitution and profiting unduly from his office.Footnote ³⁰ A brief summation of the conflict is found in Ilya Shapiro’s (Reference Scott2008) blog post regarding when the Obama–Biden administration also confronted the issue, which was resolved before they took office. While a suit filed on the basis of those claims is unusual, it is not at all unusual that both sides would rely on dictionaries from the founding period to define what was an emolument. Accordingly, United States District Judge Peter Messitte allowed a lawsuit against Trump to proceed in large part because of the strength of the lexicographical evidence provided by the plaintiffs. The judge “cited evidence provided by Georgetown University law professor John Mikhail about how dictionaries from the founders’ time defined the word ‘emolument’ more broadly than argued by Trump’s lawyers. The Trump legal team argued that emoluments were payments specifically related to office holding, and the activities of the Trump International Hotel were independent of that definition” (Bomboy Reference Bork2018).

What makes this case remarkable is not just that the differing sides were using dictionaries, or that the texts used were radically different. What makes this case different is the quality and number of dictionaries used, which seems to reinforce the idea that some legal professionals do in fact understand that language is different today. For example, one would imagine that the language of the domestic and foreign emoluments clauses is fairly straightforward, even accounting for the two centuries that have passed since the Constitution was written. The foreign emoluments clause, in Article I, Section 9, states that, “No Title of Nobility shall be granted by the United States: and no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The domestic emoluments clause, in Article II, Section 1, reads, “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” At issue is the definition of emolument, which by synonymy and context, appears to prohibit gifts or funds gained as a result of the office of president. The Justice Department, in contrast, employed a very narrow definition of emolument. The Department of Justice also claimed that “emolument” was at the time of the founding a “term of art,” meaning that a term or word referred to a specific field, when in fact it was not. John Mikhail (Reference Natelson2017a) writes that the Department of Justice ignored 92 percent of old dictionaries because their definitions focused on the sense of emolument unfavorable to their claim. The Justice Department instead cherry-picked definitions that concluded that emoluments were only linked to “profits arising from office or employ,” but this is belied by the massive amount of evidence Mikhail showed to the contrary. The sense of emolument that was far more common – indeed, ordinary – was the one more broadly applied and pertained to any benefits and rewards.Footnote ³¹

Additional support for emolument to be considered in the sense of profit or gain in general comes from the Historical Thesaurus of the Oxford English Dictionary, which is unequivocal that payment from employment was a minor sense.Footnote ³² The majority sense that this dictionary finds is synonymous with “advantage,” defined as “Benefit; increased well-being or convenience … a benefit received” and falls under the definition “profit or gain arising from station, office, or employment; dues, rewards, remunerations, salary.” A supporting quotation from the Oxford English Dictionary is from Phillip Brooks: “Men who want to be scholars for the emoluments … emoluments will bring,” meaning that the reward for learning is knowledge (Reference Burn, Strahan, Woodfall and Cadell.1881: 69). Further evidence of judicial consensus as to the meaning of emolument being greater than mere salary, and discussed without reference to a dictionary, is from a letter by Robert Bork, Attorney General of the United States, to Gale W. McGoo. The definition of emolument had arisen during a hearing, and committee members requested legal clarification. In Bork’s follow-up letter, he wrote,

Bork provides evidence of a case in which the United States government sought to recoup expenses from the port of New York and “the court responded that the term emolument is comprehensive … Embracing every species of compensation or pecuniary profit derived from a discharge of the duties of the office.”

The definition and use of the term emolument applying to both wages and other gifts or remuneration is not new. It has been used in that context for centuries; for example, in A Manual for United States Consuls: Embracing Their Rights, Duties, and Emoluments, Sidney Henshaw (Reference Henshaw1849) discusses the establishment in countries like France and England of regular and “competent salaries … has probably divested the office from many temptations to partiality and speculation which otherwise would have been expected” (24). The implication is that an emolument is some kind of financial surfeit that would make up for poor salaries. Likewise, in several former British colonies such as India and Barbados, the salaries of civil servants are still called “emoluments.” But the term in the United States had long been disused and has become an archaism, leading some people to consider not just the term, but even debate over its violation to be irrelevant. John McWhorter (Reference Mikhail2019), wrote an article on how the term is today outdated, so perhaps others likewise believe that the lawsuits over this term and its implications were destined to fail because the thing itself and that which it describes do not make sense. If the signifier no longer conjures up the signified, the implication is that the sign is likewise incomprehensible, which, in a generous reading, may account for the small number of dictionaries the Department of Justice relied on. If the government was arguing that the term no longer holds current meaning or has become semantically narrow, then one could argue that there should be greater impetus to understand what the word meant during the founding era, not less. Referring to many dictionaries for the definition of the term ought to clarify what the term was meant synchronically. Even so, because language changes as society changes – as evidenced from Samuel Johnson’s resigned admission and Noah Webster’s aggressive declaration of independence – definitions from a particular time merely allow us to presume meaning and not assume meaning.

It should be clear by now that using founding era dictionaries presents problems today in law because, while those dictionaries were indeed prescriptive, they contained implicit and explicit biases and values of another time and place. It is anachronistic to rely on such works as arbiters since each place and time is marked by its own prejudices and early English dictionaries are no different; dictionaries and their compilers are more conservative than speech and whatever they record has been in use by the public for some period of time before a word is entered into a dictionary. There are certain criteria for inclusion as well as placement in a sense order. Because a dictionary is often a compilation, in the best circumstances, of the linguistic competence of a particular group of users, that means there are more words than people will typically use or want to use. Dictionaries are records of usage, and the record has order, but the order is not always the same in every case. To understand the ideology behind each dictionary, one must first understand how the lexicographer records words. Even then, it must be acknowledged that “No lexicographer of English starts with a blank piece of paper, but rather stands in a tradition of dictionary making that reaches back more than six centuries” (Jackson Reference Johnson2002: 27).

M. Lynne Murphy (Reference Murphy2018) explains some of the distinctions between British and American attitudes toward dictionaries and how they have been embedded in respective social constructions of national identity. She opens an article on various marketing techniques of British and American dictionaries with a discussion of how dictionaries have been used not just in schools but also in legal decisions. Murphy asserts that the two nations differ greatly in their attitudes toward authority and, paradoxically, self-help books such as dictionaries. Murphy (Reference Murphy2018) uses the term “dictionary culture” to explore how these texts “reflect and contribute to the larger society’s situation concerning language, authority, literacy, education, commerce and interactions of these and related areas and the complexes of social values concerning these matters” (1). The evidence that the United States relies on dictionaries to be not just formulaic but authoritative is amply supported not only by metatextual matter in Webster’s dictionaries but also in the grammatical books of the nineteenth and twentieth centuries. In contrast, Britain experienced a similar reliance on dictionaries and grammatical rules in the eighteenth century, suggesting that society in the United States might be a few centuries behind in its search for the right or correct way to use language. Not only are dictionaries more prevalent in American schools and popular discourse, but dictionaries are relied on more heavily in American than in British courts and the difference between them is startling.Footnote ³³ It appears that American reliance on “the dictionary” occurs because those who look words up affirm their democratic ideals and concepts about national self-reliance – but which actually signals an obedience to authority, in this case, textual authority – whereas British users see using a dictionary as a way to augment what they already know about the superiority of their language and laws.

That the United States has a written constitution is another dramatic way its government imposes authority over itself, its people, and its language. The self-determination that the United States sought in developing its Declaration of Independence and later its Constitution can be seen as related to, or an extension of, the eighteenth-century dictionaries often written by Dissenting Protestants, just the kind of spiritual guides whose views on religion and society similarly would find acceptance and support in colonial America. It is problematic, then, if certain dictionaries are used and not others; the repetition of texts and definitions, regardless of utility or quality, has the consequence of instilling into law those works or meanings that are cited. The fact that one nation’s constitution is written, and therefore codified, and the other’s is not, indicates perhaps that the former’s inability to accept ambiguity in society or its interpretation of laws is a factor in its still being tied to obedience to authority. The arbiter that the United States obeys is no longer England; instead, the nation and its courts have sought authority in the written word as defined by dictionaries written by people with agendas. Ignorance of the politics of lexicography means that reading old dictionaries with only current knowledge is not just anachronistic but is itself a political act.

2 Excerpt from “The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523–1806,” by John Mikhail

On 23 January 2017, Citizens for Responsible Ethics in Washington (CREW) sued then president Donald Trump, just a few days after he took office. A non-partisan organization dedicated to exposing corruption and ethical violations in government, CREW was founded in 2003 and had been working on a wide range of cases focusing on the need for transparency in and accountability for governmental decisions and policies. Before the suit, starting in December of 2016, John Mikhail, a law professor at Georgetown University, decided to explore the history of the word “emolument,” and how it had been used in old dictionaries during the time of the founding of the United States in the eighteenth century. One of the reasons for doing so was that conservative judges often argue that consideration of the original meaning of a word is essential to how a law is currently interpreted. In fact, the Department of Justice at the time of the lawsuit did use early dictionaries, but very few of them. The dictionaries they chose gave a sense of the term that would have been considered narrow and not germane to contemporaneous examples of the term. In an interview on National Public Radio, Professor Mikhail explained that “prior to maybe December of 2016, I had not given much thought to the word,” and yet shortly afterwards, he and his assistant Genevieve Bentz became very familiar with most of the English-language dictionaries published during the seventeenth and eighteenth centuries as well as numerous other reference books, and primary documents such as letters, contracts, and philosophical treatises that would have been available to the framers of the Constitution (Overby Reference Overby2017). Fred Barbash (Reference Barbash2018) explains how Mikhail’s careful work identifying hundreds of documents and thousands of instances of “emolument” was cited in a historic ruling by US District Judge Peter Messitte in Maryland, who allowed a suit brought by the District of Columbia and Maryland to move forward, rather than be dismissed, which is what the Trump administration had hoped. Barbash also relays how Judge Messitte called Mikhail’s research “exhaustive” and used his definitions in his rulings.

[The contents of the selection from John Mikhail’s work have been lightly edited by Rebecca Shapiro for the purpose of clarity and brevity, and any discrepancies between the published version by Cambridge University Press and John Mikhail’s original version are due to her edits, not his. Professor Mikhail would like to acknowledge here the outstanding efforts of research assistant, Genevieve (Bentz) Lewis, who did the lion’s share of work in locating many of the historical dictionaries that his paper drew upon. For space considerations Professor Mikhail’s extensive appendices, which include clarifying images and extensive contemporaneous primary-source quotations, could not be included in the print Element; however, they can be found in the original article (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995693), as well as in the online resources for this Element: (multimediafluids.uam.elogim.com/Shapiro). All references to items numbered with an “A-” prefix are available in the Online Appendix. A published version of Professor Mikhail’s research can be found in his article, “The 2018 Seegers Lecture: Emoluments and President Trump,” 53 Valparaiso University Law Review 631 (2019).]