Beware of legal lingo

Those who want to play god are always changing pre-existing word definitions.

Law dictionary definitions are not English dictionary definitions.

THE WORD MUST MEANS MAY.  Your Government’s definition of the word “MUST” means “May”

You’ve probably been told that you “Must” file a form, or you “Must” disclose a number. Let’s take a closer look.

Caterpillar Tractor Company v. U.S., 589 F.2d 1040 ( Carpenter v. United States, 495 F.2d 175 (5th Cir. 1974); Adler v. Commissioner, 330 F.2d 91 (9th Cir. 1964). And also see GEHL Co. v. Commissioner of  Internal Revenue. 795 F.2d 1324):

“Informal publications of IRS all the way up to revenue rulings are simply guides to taxpayers and taxpayer relies on them at his peril.”

Brinkley v. Brinkley, 56 N.Y. 192: “Must” as used in statutes has been frequently construed not to be mandatory.

 

THE WORD SHALL SOMETIMES MEANS MAY

Fort Howard Paper v. Fox River Dist. 26 N.W.2nd 661: The word “shall” in a statute may be construed to mean “may”, particularly in order to avoid a constitutional doubt.

Gow v. Consolidated Copper, 165 Atl. 136 (1933): If necessary, to avoid unconstitutionality of a statute, “shall” will be deemed equivalent to “may”.

George Williams College v. Village of Williams Bay, 7 N.W.2nd 891: “Shall” in any statute may be construed to mean “may” in order to avoid constitutional doubt.

US Supreme Court, Cairo and Fulton RR Co. v. Hecht, 95 U.S. 168 (1877): As against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.

Ballou v. Kemp, 95 F.2d 556:

“The word `shall’ in its ordinary sense is imperative. `When the word “shall” is used in a statute, and a right or benefit to any one depends upon giving it an imperative *559 construction, then that word is to be regarded as peremptory.’ But the intent of the act controls, and when the spirit and purpose of the act require the word `shall’ to be construed as permissive it will be done. . . .” [Lewis’ Sutherland Statutory Construction, 2d ed., 1904, p. 1155]

“Whether the language of a statute is imperative or merely permissive depends on the intention as disclosed in the nature of the act and in the context. Although the words of a statute are merely permissive, directory, or enabling, they may nevertheless have the force of words of command where the power or duty to which they relate is for the advancement of public justice or the security and protection of public or private rights. . . .

The word `shall’ in a statute may be construed as `may’ where the connection in which it is used or the relation into which it is put with other parts of the same statute indicates that the legislature intended that it should receive such a construction; but if any right to anyone depends on giving the word an imperative construction, the presumption is that the word was used in reference to such right or benefit. `Shall’ ought undoubtedly to be construed as meaning `must’ for the purpose of sustaining or enforcing an existing right, or when a public body is directed to do certain acts.” [25 R.C.L. § 15, pp. 767-769]

 

And just to make things more confusing…

SOMETIMES MAY MEANS MUST

Note how “may” is defined in 34 AmJur, Mandamus, section 72:

“Frequently, however, the word ‘may’ or the like as used in statutes relating to the duty of public officers is construed as mandatory, and not merely permissive, Anno: 6 L.R.A. 162; 12 L.R.A.(NS) 340, See STATUTES (also 25 RCL p. 750), and when such is the case, mandamus may issue to compel the officer to perform the duty so imposed. Rock Island County v. United States, 4 Wall. (US) 435, 18 LEd,419; Brokaw v. Highway Comrs., 130 Ill482, 22 N.E. 596, 6 L.R.A. 161.”

US Supreme Court in Mahler v. Eby 264 US 32:

“It is essential that where an executive is exercising delegated legislative power he should substantially comply with all the statutory requirements in its exercise”

 

AND JUST SO THAT YOU ARE NOT FOOLED, OR MEANS AND.

Take a closer look at section 6001 of the Internal Revenue Code. It uses the deceptive terminology “may require” and “or by regulations”:

“… Whenever in the judgment of the Secretary it is necessary, he may require any person, by notice served upon such person or by regulations, to make such returns, render such statements, or keep such records, as the Secretary deems sufficient to show whether or not such person is liable for tax under this title.”

Concerning the “or by regulations” terminology: This is one of the places where the word “or” really means “and”. If you are going to claim that some people are served notice in person, while others are served notice via the publication of regulations, then I demand the equal protection of the law, equal with those who have been served notice in person. [In statutes the word `or‘ can mean `and‘ unless preceded by a comma.]   and of course, “may require” means must require.

LAWS MEAN WHAT CONGRESS INTENDED IT TO MEAN

Justice Felix Frankfurter, in 47 Columbia Law Review 527 (1947), expressed:

“To go beyond [the statute] is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction.

 

THE WORD INCLUDES IS INCLUSIVE UNLESS IT IS NOT

The word “Include” is an inclusive term. It cannot be expanded to include items outside the category being defined.

The word “include” is from Latin inclaudere to shut in, to keep within.  In other words, include means everything within the list excludes anything outside the list.

Every Law Dictionary will tell you:

 

Black’s Law Dictionary did not have the new definition of Include until the 1933 edition. It can now mean “in addition to” or “and”.

But the word inclusive still excludes everything else.

U.S. Supreme Court in Colautti v. Franklin

“It is axiomatic that the statutory definition of the term excludes unstated meanings of that term. Colautti v. Franklin, 439 U. S. 379, 392, and n. 10 (1979). … As judges it is our duty to 485* construe legislation as it is written, not as it might be read by a layman, or as it might be understood by someone who has not even read it.” Meese v. Keene, 481 U.S. 465, 484-485 (1987).

Note 10 of Colautti Ibid, reads:
“[10] … As a rule, “[a] definition which declares what a term `means’ . . . excludes any meaning that is not stated.” 2A C. Sands, Statutes and Statutory Construction § 47.07 (4th ed. Supp. 1978).”

Federal Regulation shows clearly that congressional legislative decrees do not expand the scope of things included beyond the use of general class of things so defined:

“The term ‘includes’ and ‘including’ do not exclude things not enumerated which are in the same general class.” –27 CFR 72.11.

THE DEFINITION OF REGULATE KEEPS CHANGING.

The first two editions of Black’s Law Dictionary used the Webster’s definition. The third edition, in 1933 after we lost our right to own gold coins, and after Congress changed our national anthem to one that did not mention God, added:

“Power to regulate is power to establish reasonable limitations but does not generally include power to prohibit.”

Then they added separate lengthy definition for Regulations for an Executive Department (editions 4 to 6, but not later editions), and a separate definition for Regulations plural (editions 5 and 6, but not later editions).

Black’s Law Dictionary sixth edition in 1990 was the first to have no definition for Regulate singular. It is no longer in their vocabulary.

Then Black’s Law Dictionary seventh edition in 1999 dropped these two definitions (Regulations for an Executive Department and for Regulations plural) but defined Regulation to include restriction — even though the third edition said “does not generally include power to prohibit”.

How do you like that?  The same legal system that originally told us that pre-existing definitions cannot change, now insists that you must be fooled.

“Regulate” and “Regulated” are used in the U.S. Constitution.  To regulate interstate commerce, to regulate the value of coins, and a well regulated militia, etc. They can mean different things.

Don’t be fooled by the word “regulated” in the phrase “A well regulated militia”. It does not mean “disciplined” nor even subject to a chain of command.   The word regulated means governed by rules, or “subject to governing principles”. From Latin Regula “a general rule”.

We are already regulated by “a general rule” that created government. According to Blackstone’s Commentaries This rule of conduct applies with equal obligation to individuals and to nations.

The U.S. Constitution Article 1, Section 8 gives Congress the authority to regulate interstate commerce among the several states.

But since no state can impair the obligations of contracts under section 10 and since the federal government was subordinate to the states that created it, they would not dare assume powers not delegated — it was assumed for the longest time that the term “regulate” commerce could only mean “promote” commerce. James Madison insisted that the Constitutional phrase “regulate” was to take it’s regular meaning “to make regular”.

For a long time people thought the Constitutional words “regulate commerce among the several states” referred ONLY to promoting commerce, not restricting commerce, after all, “one of the objectives of the Philadelphia Convention was the promotion of commerce” according to an analysis of the Constitution published in 1996 by the Congressional Research Service in Senate Document 103-6.

Example: the first agriculture department in Pennsylvania was created to help farmers sell eggs OUTSIDE of the Commonwealth, and to run a state fair, promoting Pennsylvania grown produce. THAT’S IT! That was the understanding of the Constitution clause regulating commerce among the several states.

The Original Meaning of the Commerce Clause” by Randy E. Barnett- (University of Chicago Law Review Vol 68, No 1, winter 2001):

“To regulate” generally meant “to make regular” — that is, to specify how an activity may be transacted — when applied to domestic commerce, but when applied foreign trade also included the power to make ‘prohibitory regulation’….
according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and both regulate and restrict the flow of goods to and from other nations and the Indian tribes, for the purpose of promoting the domestic economy and foreign trade.”

 

REQUIRED DOES NOT MEAN MANDATORY

Legislative History of the Privacy Act excerpt from page 6963 requires the specific word “mandatory”. Agencies often use the word required to evade the law.

 

LAWS ARE MERELY DIRECTORY if they try to regulate a right.

Beverlin v. Beverlin, 29 W.Va. 732. 1887.

“… a natural right, and one that existed independent of statutes, any commands which a statute may give … should, if the form of words will permit, be interpreted as mere directions to the officers of the law and to the parties, not rendering void what is done in disregard thereof. … “

and
U.S. Supreme Court in Meister v. Moore 96 U.S. 76 in 1888 ruled that

Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common law right…”

U.S. v. Tallmadge, 829 F.2d 767:

“… One who relies on a legal interpretation by a government official assumes the risk that it is in error… it has also been held or said that `the government could scarcely function if it were bound by its employees unauthorized representations'” Goldberg v. Weinberger, 546 F.2d 477

The United States Supreme Court warned you that it is your duty to make sure government employees act within the law. Federal Crop Insurance Corp. v. Merril, 332 U.S. 380 (1947):

… Anyone entering into an arrangement with the government takes the risk of having accurately ascertained that he who purports to act for the government stays within the bounds of his authority … and this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.”

U.S. v. Stewart, 234 F.Supp. 94 (1964):

United States Government officer may be sued only if he acts in excess of his statutory authority or in violation of the Constitution for then he ceases to represent government.”

U.S. Constitution Article 1, section 10: prohibits any State from passing ANY law impairing the Obligation of Contracts. So how can they shut down lemonade stands on private property for not getting a business license, food establishment permit, food safety permits, health inspections, requirements for on-site running water and refrigeration, approved fire extinguisher, federal and state tax registration, proof of waste disposal contract for the lemonade stand not just for the address, etc. According to John Stossel’s investigative report it takes a minimum of 65 days to start a lemonade stand.

US Supreme Court in U.S. vs. Minker, 350 U.S. 179 at page 187 explains that an administrative summons cannot compel testimony: “” an official command, … has some coercive tendency, either because of ignorance of their rights on the part of those whom it purports to command or their natural respect for what appears to be an official command, or because of their reluctance to test the … validity by litigation.”

The Amish do not have business licenses for their businesses. Maybe we could learn something from them.

And, by the way, the original food safety law said that vendors of food shall sell none but wholesome food. It was then up to a jury to determine a violation.

Fields v. US, 27 App DC 433: Words like “may,” “must,” “shall,” etc., are constantly used in statutes without intending that they be taken literally.

 

YOU MAY ALSO BE INTERESTED IN

My essay on how the definition of license keeps changing.  Here.