The latest of Judge Posner’s claims of inaccuracy in Reading Law, by Bryan Garner and Antonin Scalia, focuses on Justice Holmes’s decision for the Court in McBoyle v. United States.
Posner is wrong to accuse Garner & Scalia of misrepresenting this opinion as an application of ejusdem generis. But here are the relevant texts; you be the judge:
The ejusdem generis canon applies when a drafter has tacked on a catchall phrase at the end of an enumeration of specifics, as in dogs, cats, horses, cattle, and other animals. Does the phrase and other animals refer to wild animals as well as domesticated ones? What about a horsefly? What about protozoa? Are we to read other animals here as meaning other similar animals? The principle of ejusdem generis says just that: It implies the addition of similar after the word other.
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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:
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“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.)
He says I cite only six examples of cases that the book misrepresents. True, but I had space limitations. So here’s a seventh, and I will be glad to furnish others on demand. The authors summarize a well-known opinion by Holmes (McBoyle v. United States) tersely: “’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.” They use this to illustrate the statutory principle called eiusdem generis, which is Latin for “of the same kind” and means that in a list of specifics that ends with a general term (for example, “cats, dogs, and other animals”) the general term should be interpreted to be similar to the listed terms (so “animals” would not include human beings). 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.
MR. JUSTICE HOLMES delivered the opinion of the Court.
The petitioner was convicted of transporting from Ottawa, Illinois, to Guymon, Oklahoma, an airplane that he knew to have been stolen, and was sentenced to serve three years’ imprisonment and to pay a fine of $2,000. The judgment was affirmed by the Circuit Court of Appeals for the Tenth Circuit. 43 F. (2d) 273. A writ of certiorari was granted by this Court on the question whether the National Motor Vehicle Theft Act applies to aircraft. 26*26 Act of October 29, 1919, c. 89, 41 Stat. 324; U.S. Code, Title 18, § 408. That Act provides: “Sec. 2. That when used in this Act: (a) 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; . . . Sec. 3. That whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both.”
Section 2 defines the motor vehicles of which the transportation in interstate commerce is punished in § 3. 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 22, 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. 997, § 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. 27*27 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, 209.
My Analysis: Posner asserts that Garner & Scalia “misrepresent” the decision in McBoyle. The representation that they make about that decision is that it is an example of an American court applying the canon of ejusdem generis. And, sure enough, Justice Holmes’s opinion for the Court does apply the canon of ejusdem generis. Garner & Scalia are right; Posner is wrong.
Judge Posner says that Holmes is looking for the meaning of “motor vehicle.” But a more precise description, in Holmes’s own words, is that he is looking for “the meaning of the word `vehicle’ in the phrase ‘any other self-propelled vehicle not designed for running on rails.’” This frames the analysis as a search for the meaning of, in Garner & Scalia’s words, “a catchall phrase at the end of an enumeration of specifics . . . .” Holmes appeals to the ordinary meaning of “vehicle” in this catchall phrase and then finds that the statutory phrase “calls up the popular picture.” Holmes then uses ejusdem generis (though without the fancy Latin label, which would have been out of keeping with his style) to explain the basis for the conclusion about the meaning of the statutory phrase as invoking ordinary meaning: “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 the land, is the theme.”
Garner & Scalia make no claim about the “principal ground” of decision in McBoyle. But Judge Posner is also wrong to contrast the use of ejusdem generis with the invocation of ordinary meaning, as if the two are somehow in competition. As Garner & Scalia explain (and Posner would be foolish to deny), “[t]his canon parallels common usage.”