Posner’s Criticism Is Pretty Weak With this Example From the Scalia & Garner Book

I’ve mostly stayed out of the Posner v. Scalia spat involving alleged misrepresentations in the new Scalia/Garner book. The devil is in the details in this sort of disagreement, and I don’t have the book to know what Scalia & Garner say in order to know if Posner’s criticisms are accurate. But over at Walsh’s Law, lawprof Kevin C. Walsh takes a look at one of the alleged examples and reprints all the relevant texts. The case happens to be a favorite of mine, so I thought I would blog about it. I share Kevin’s conclusion that Scalia & Garner were fair in their description of this case, while Posner was not fair in his critique.

The case is the famous Holmes opinion in McBoyle v. United States, which considered whether a prohibition on the interstate transportation of a motor vehicle applied to a stolen airplane. In the statute, “motor vehicle” was defined as follows: “The term ‘motor vehicle’ shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails.” In his opinion for the Court, Justice Holmes ruled that an airplane did not fall within this definition. Here’s the analysis:

The question is the meaning of the word “vehicle” in the phrase “any other self-propelled vehicle not designed for running on rails.” No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air, and sometimes legislation extends the use in that direction — e.g., land and air, water being separately provided for, in the Tariff Act, September 21, 1922, c. 356, § 401(b), 42 Stat. 858, 948. But in everyday speech, “vehicle” calls up the picture of a thing moving on land. Thus, in Rev.Stats. § 4, intended, the Government suggests, rather to enlarge than to restrict the definition, vehicle includes every contrivance capable of being used “as a means of transportation on land.” And this is repeated, expressly excluding aircraft, in the Tariff Act, June 17, 1930, c. 497, § 401(b), 46 Stat. 590, 708. So here, the phrase under discussion calls up the popular picture. For, after including automobile truck, automobile wagon, and motor cycle, the words “any other self-propelled vehicle not designed for running on rails” still indicate that a vehicle in the popular sense — that is, a vehicle running on land — is the theme. It is a vehicle that runs, not something, not commonly called a vehicle, that flies. Airplanes were well known in 1919 when this statute was passed, but it is admitted that they were not mentioned in the reports or in the debates in Congress.

It is impossible to read words that so carefully enumerate the different forms of motor vehicles and have no reference of any kind to aircraft, as including airplanes under a term that usage more and more precisely confines to a different class. The counsel for the petitioner have shown that the phraseology of the statute as to motor vehicles follows that of earlier statutes of Connecticut, Delaware, Ohio, Michigan, and Missouri, not to mention the late Regulations of Traffic for the District of Columbia, Title 6, c. 9, § 242, none of which can be supposed to leave the earth.

Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible, the line should be clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used. United States v. Thind, 261 U. S. 204, 261 U. S. 209.

In their book, Scalia & Garner use McBoyle as an example of the ejusdem generis canon. Here’s the relevant passage according to Kevin:

The ejusdem generis canon applies when a drafter has tacked on a catchall phrase at the end of an enumeration of specifics. . . The principle of ejusdem generis says just that: It implies the addition of similar after the word other. . . . Courts have applied the rule, which in English law dates back to 1596, to all sorts of syntactic constructions that have particularized lists followed by a broad, generic phrase. Today American courts apply the rule often. Some examples through the years:

* * *

“automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails”–held not to apply to an airplane. (FN: McBoyle v. United States, 283 U.S. 25, 26, 27 (1931) (per Holmes, J.)

The reference to McBoyle here is of course very sparse, but I think it provides a relatively fair description of the reasoning of the case. Holmes’s opinion seems to rely on two ideas. He starts with the background idea that a “vehicle” calls up the picture of something running on land. And he then reasons that the statutory context tends to confirm that assumption: the enumeration of specifics creates a “theme” of something running on land that helps the Court construe the word “vehicle” as something consistent with that theme. That latter is an example of the canon Scalia & Garner are looking for, so this strikes me as a fair example of that canon being used.

That brings us to Posner’s critique:

The statute under which McBoyle was convicted criminalized the transportation in interstate commerce of a “motor vehicle” known to have been stolen. Scalia and Garner do not mention “motor vehicle,” but consider only whether an airplane (the stolen property that McBoyle had transported across state lines) is the same kind of thing as an automobile, an automobile truck, etc. For Holmes the question was whether an airplane is a “motor vehicle,” and while he alluded to without naming the principle of eiusdem generis, his principal ground for reversing McBoyle’s conviction was unrelated to that principle; it was that in ordinary speech an airplane is not a motor vehicle and that a conviction for a poorly defined crime should not be allowed. He also mentioned legislative history (anathema to Scalia and Garner) in support of his interpretation. All this Scalia and Garner ignore.

Posner’s critique strikes me as pretty weak. First, Posner seems to be mistaken that “[f]or Holmes the question was whether an airplane is a ‘motor vehicle,’” as I think it’s pretty clear that Holmes was focused on the word “vehicle” at the end of the statutory definition (as that was the part most likely to apply). Second, I don’t know where Posner gets the idea that the “principal” ground for reversing the conviction was that “that in ordinary speech an airplane is not a motor vehicle and that a conviction for a poorly defined crime should not be allowed.” As I read McBoyle, Holmes starts with the idea of ordinary speech and then applies the ejusdem generis canon. I don’t know how you say that one of those is the “principal” ground and the other is somehow not really relevant, as they worked together in context. Given that, I think Scalia & Garner were fair to use the latter of the arguments as an example of its use in statutory interpretation. It’s true that Holmes does make the point about the need for statutes to be well-defined, but that comes at the end as a sort of lesson following the conclusion more than a key part of the reasoning. It’s also true that Holmes does mention the legislative history, even if only in part of one sentence. But as far as I can tell, Scalia & Garner don’t suggests that McBoyle is an example of the canon providing the exclusive reasoning used to construe a statute. As best I can tell from the context, they are just using McBoyle as an example of the canon being used. Which seems accurate to me. Finally, Posner’s accusation that Scalia & Garner “ignore” all this seems a bit odd given that the mention of McBoyle amounts to a single short sentence. If you’re summarizing a Supreme Court decision in one short decision as an example in a list, not mentioning these other points seems pretty understandable. Or so it seems to me.

Check out Kevin’s similar analysis, with links to the sources, here.