Antonin Scalia

“ The entire phrase "falsely made, forged, altered, or counterfeited" is self-evidently not a listing of differing and precisely calibrated terms, but a collection of near synonyms which describes the product of the general crime of forgery.
Even on the basis of a layman's understanding, therefore, I think today's opinion in error. But in declaring that understanding to be the governing criterion, rather than the specialized legal meaning that the term "falsely made" has long possessed, the Court makes a mistake of greater consequence. ”

“ A definition now very generally accepted explains forgery as the false making or material alteration, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability. ”

“ We have such an obvious transplant before us here. Both Black's Law Dictionary and Ballentine's Law Dictionary contain a definition of the term "false making." The former reads as follows: "False making. An essential element of forgery, where material alteration is not involved. Term has reference to manner in which writing is made or executed rather than to its substance or effect. A falsely made instrument is one that is fictitious, not genuine, or in some material particular something other than it purports to be and without regard to truth or falsity of facts stated therein." ”

“ It is plain from the opinion, however, that the Court understood "false making" (as I do) to be merely a recitation of the central element of forgery. Indeed, that is the whole basis for the decision. Thus, the Court's discussion of the common-law meaning of "forges" begins as follows:
"In 1847 it was decided in the English case of Regina v. White . . . that 'indorsing a bill of exchange under a false assumption of authority to indorse it per procuration, is not forgery, there being no false making.' " 370 U.S., at 655, 82 S.Ct., at 1402. ”

“ The whole rationale of the Gilbert decision, in other words, was that inserting fraudulent content could not constitute "forgery" because "forgery" requires "false making." It is utterly incompatible with that rationale to hold, as the Court does today, that inserting fraudulent content constitutes "false making." ”

“ To determine that a case is within the intention of a statute, its language must authorise us to say so. It would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute, is within itsprovisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. ”

“ Surely the adverb preceding the word "made" naturally refers to the manner of making, rather than to the nature of the product made. An inexpensively made painting is not the same as an inexpensive painting. ”

“ The annotation lists 16 States and the United States as supporting the view, and only 2 States (Kentucky and Tennessee) as opposing it. If such minimal "divergence"-by States with statutes that did not include the term "falsely made" (see supra, at 124-125) -is sufficient to eliminate a common-law meaning long accepted by virtually all the courts and by apparently all the commentators, the principle of common-law meaning might as well be frankly abandoned. ”

“ Commentators in 1939 were apparently unanimous in their understanding that "false making" was an element of the crime of forgery, and that the term did not embrace false contents. May's Law of Crimes § 292 (K. Sears & H. Weihofen eds., 4th ed. 1938) ; W. Clark & W. Marshall, Law of Crimes § 394 (3d ed. 1927) ; 2 J. Bishop, Criminal Law §§ 523, 582, 582a (9th ed. 1923) ; 1 H. Brill, Cyclopedia of Criminal Law § 557 (1922) . (Contemporary commentators remain unanimous that falsity of content does not establish forgery. See, e.g., R. Perkins & R. Boyce, Criminal Law 418-420 (3d ed. 1982) ”

“ The "Congress' broad purpose" approach is not supported by the authorities the Court cites. [2] There is, however, one case in which it does appear. It was proposed by the Government, and rejected by the Court, in Gilbert:
"Nor are we impressed with the argument that 'forge' in § 495 should be given a broader scope than its common-law meaning because contained in a statute aimed at protecting the Government against fraud. Other federal statutes are ample enough to protect the Government against fraud and false statements. ”

“ Young, 46 N.H. 266 (1865) . Indeed, as far as I am aware, the only state courts that held a genuine document containing false information to be "forged" did so under governing texts that did not include the term "falsely made." See Moore v. Commonwealth, 92 Ky. 630, 18 S.W. 833 (1892) ; Luttrell v. State, 85 Tenn. 232, 1 S.W. 886 (1886) . Even they were in the minority, however. See Bank of Detroit v. Standard Accident Insurance Co., 245 Mich. 14, 222 N.W. 134 (1928) ("forged") ”