Court Rules Tacos Are Sandwiches... Scalia And Posner Had This Fight Years Ago
What theory of interpretation lands on 'tacos and burritos are Mexican-style sandwiches'?
Jim Gaffigan has a stand-up routine about waiting tables at a Mexican restaurant in Indiana and having to endlessly explain that every menu item is just “tortilla, with cheese, meat, or vegetables.” This week, Indiana further solidified its status as a haven for Mexican food connoisseurs with a court ruling that “tacos and burritos are Mexican-style sandwiches.”
But while Gaffiganism might easily conclude that a bread-like product encasing cheese, meat, and/or vegetables amounts to a sandwich, how would a more established flavor of interpretation get there?
Previously, the commission denied a Famous Taco from being located in the strip mall partially based on a “written commitment” Quintana accepted with a nearby neighborhood association limiting any restaurant there to one that did not offer alcohol, did not allow outdoor seating and only sold “made-to-order or subway style sandwiches.”
The idea behind the agreement, according to court documents, was to keep national fast-food burger and chicken chains out of the strip mall.
“The Court agrees with Quintana that tacos and burritos are Mexican-style sandwiches, and the original Written Commitment does not restrict potential restaurants to only American cuisine-style sandwiches,” Bobay wrote Monday in the civil case.
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Despite the heat this opinion has taken from social media, this seems… correct? To the extent the contract reflected a meeting of the minds, the minds did not seem to care how the meat was minded, as long as the storefront never became a McDonald’s. The clause apparently intended to prevent mass assembled hamburger sandwiches and only reads this way to allow a Subway, not to restrict leasing the spot only to its sandwich artists. And, before anyone tries to argue that a hamburger isn’t a sandwich, it’s literally the result of putting a “Hamburg style steak” — the term for a ground beef steak used in the 1800s — between bread. There’s your dash of originalism.
What’s more, this fact pattern has come up before! Legal legend Judge Richard Posner wrote a brilliant review of Reading Law, an attempt by Justice Scalia and Bryan Garner to explain how dictionary definitions should dominate judicial interpretation. In any event, the Scalia book cited a Massachusetts case that denied a Mexican restaurant lease on the grounds that tacos aren’t sandwiches. Scalia and Garner praised that court for adhering to Merriam-Webster’s definition of a sandwich as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” But the court didn’t stick with the dictionary definition. As Posner notes, the court spent a good deal of time focusing on the fact that the clause was drafted by the party ultimately arguing for the expansive definition, meaning that they could’ve just as easily not included this language if they weren’t trying to hide the ball.
Those are more persuasive points than the dictionary’s definition, and as is often the case, the court got the definition wrong. (Scalia and Garner miss this, too.) A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich). The slices of bread do not have to be thin, and the layer between them does not have to be thin either. The slices do not have to be slices of bread: a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like. Dictionaries are mazes in which judges are soon lost. A dictionary-centered textualism is hopeless.
And, as the judge notes in the Indiana case, taking such a limited view of sandwiches would also reinforce culturally exclusive baggage if “made-to-order Greek gyros, Indian naan wraps, or Vietnamese Banh mi” get excluded based on a static definition that makes the Earl of Sandwich the sole arbiter of meaning.
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All this is to say that textualism, originalism, or “textual originalism,” as Posner identified Scalia’s incoherent hodge-podge of a theory, can’t adjudicate better than an honest analysis of the meaning of words in context. The Indiana case, as found by this judge, intended the sandwich exclusivity clause in a particular way that should not limit other made-to-order “bread, cheese, meat, vegetable” products. The Massachusetts case had a different posture. A reasonable judge can navigate those distinctions without resorting the parlor trick of digging up some 19th century diary entry that reads “I don’t know, Sam… it just doesn’t seem like a ‘sandwich’ if it doesn’t use brea—arrrgh!” (Crockett, David (Davy), March 6, 1836, San Antonio).
While taco sandwiches are relatively frivolous, Posner’s argument focused on the much more deadly issue of Scalia’s use of the dictionary to pander to gun manufacturers:
Judge J. Harvie Wilkinson III has argued that because the historical analysis in Heller is (from the standpoint of advocates of a constitutional right to own handguns for personal self-defense) at best inconclusive, judicial self-restraint dictated that the District of Columbia’s ordinance not be invalidated. His argument derives new support from a surprising source: Judge Easterbrook’s foreword to Scalia and Garner’s book. The foreword lauds the book to the skies, but toward the end it strikes the following subversive note: “Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption under-stood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.” When that happens, Easterbrook continues, the courts should “declare that meaning has been lost, so that the living political community must choose.” The “living political community” in Heller consisted of the elected officials, and the electorate, of the District of Columbia.
The Earl probably wouldn’t recognize his invention in a taco. Or, hell, maybe he would. I didn’t know the guy.
What I do know is that a contemporary American citizen could and probably would simultaneously understand a hamburger as a sandwich in some contexts and as its own entity in others. Because, unlike the grifters committed to spinning textualism as a cover for naked political posturing, most people are capable of walking and chewing gum at the same time. There is no magic power to dictionaries or even to long-dead witch hunters. They’re all just data points to add to the stew of a reasonable, contextual interpretation reflecting how the “living political community” would understand the words.
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Not that anyone really saw Heller as a serious act of judicial interpretation as opposed to a bunch of maximalist gibberish. As Posner put it:
Heller probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing.
Which is all to say tacos may or may not be sandwiches in every context. But that doesn’t mean they aren’t tacos in some contexts.
‘Tacos are Mexican-style sandwiches,’ judge rules in Indiana court [NBC4i]
The Incoherence of Antonin Scalia [New Republic]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
