In this (very critical) review of Justice Scalia’s new book, Judge Posner makes the following claim: “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.”
Is this right? In my experience, “sandwich shops” like Corner Bakery don’t sell hamburgers, and I’d be very surprised if someone offered me a sandwich and then handed me a hamburger. I’d be even more surprised to be offered a hot dog. Tacos, burritos, and quesadillas seem even further removed from what I think of as a “sandwich.”
Sure, you can make lawyerly arguments as to why any or all of these constitute sandwiches, but that’s not the question. Rather, I’m wondering if contrary to my own understanding, Posner is right that hamburgers and hot dogs are “regarded” as sandwiches, and that “some people regard” tacos and burritos as sandwiches.
This seems especially pertinent because Posner is criticizing Scalia and his co-author Brian Garner for advocating reliance on dictionary definitions of words. One reason to rely on dictionary definitions is because they provide an objective baseline, as opposed to idiosyncratic judges’ notions of what words might mean, which in turn are subject to manipulation if a judge wants to rule in favor of a particular party for whatever reason. If Posner is wrong about what people “regard” as sandwiches, I think that would tend to buttress Scalia and Garner’s point that we’re better off relying on dictionary definitions than on less objective alternatives–which is not to say that I think that I have a strong opinions on textualism in statutory and contractual interpretation (and indeed I don’t).
So what do readers think about the sandwich definition issue?
UPDATE: One unscientific online survey found that 77% of respondents thought hamburgers were sandwiches, 46% thought hot dogs were sandwiches, and only 28% thought that quesadillas were sandwiches. I think even these figures overstate matters. If you were to ask me specifically and without access to a dictionary whether a hamburger is technically a sandwich, I’d say it was at least a close call. But if you asked me whether I “regard” a hamburger as a sandwich, I would unhesitatingly say no–I just have it in a separate mental category, because in common parlance the category “sandwich” doesn’t include “hamburger.” E.g., “okay, what would you kids like for lunch? I can fry up a hamburger, or make you a sandwich.” Or, “I hope you can make it to the barbeque. We’ll be grilling hamburgers, but if you don’t like burgers we’ll also have sandwiches available.”