Originalism & Sandwiches: Is a Hot Dog A Sandwich or Not?

Upon the appeal of several law school classmates, I am tasked with the weighty decision of adding my worthless opinion to the relative weight of other worthless opinions on whether a hot dog is a sandwich or not?

Since originalism is an important part of any weighty question, I turn to the history and tradition of sandwiches to issue my vacuous pronouncements. According the Encyclopedia Britannica, a “sandwich, in its basic form, [consists of] slices of meat, cheese, or other food placed between two slices of bread.” This mode of consumption undoubtedly existed since man, meat, and bread became acquainted with each other; however, the term sandwich first came about in the 18th century due to the eating habits of John Montagu, 4th earl of Sandwich. Historical accounts differ on whether he ate his sliced meat and bread at his gaming table, his desk, or in London society. Nonetheless, the name stuck.

Since that time, almost every Western culture has adopted sandwiches in one form or another. The Encyclopedia Britannica offers some notable examples from Western culture such as the American hamburger on a bun; however, it makes no mention of hot dogs. Notwithstanding this omission, all is not lost for the passionate advocates for hot dog sandwiches. Britannica does mention rolls as being a key component of a sandwich although its strict definition seems to indicate sliced rolls.

Moving to more modern times, the Merriam-Webster dictionary defines a sandwich as “two or more slices of bread or a split roll having a filling in between” or “one slice of bread covered with food.” The former definition seems most applicable here. Advocates for both sides of this weighty question will undoubtedly shed much blood over the definition of a split roll.

This opiner thinks that these advocates, despite their intense vigor, wax careless in their arguments because they forget to enumerate that they mean a hot dog on a bun/roll, not just a plain hot dog. A plain frankfurter simply constitutes a salty, greasy piece of meat, and, in no way, constitutes a sandwich. To the contrary, a hot dog on a bun/roll presents a much more difficult question, upon which this opiner will offer some worthless dicta.

The standard of review is important. Languages may evolve, but the original meanings attached to words do not. When possible, the original intent of the word should control. If that is not possible, the original public meaning of the word should control.

Consequently, this opiner accepts the original meaning of the word sandwich as defined by the Encyclopedia Britannica and described above. A sandwich consists of two fully separated slices of bread.

Despite this conclusion, all is not lost for the hot dog sandwich advocates. The inquiry into whether a hot dog on a bun/roll is a sandwich is one of law-determined fact. The law defines the sandwich, the fact-finder’s only job being to determine whether the slices of bread were fully separated. If, and only if, the impassioned sandwich advocates succeed in proving that the hot dog lies between two fully separated slices of bread, they succeed as a matter of law-determined fact.

Therefore, a hot dog on a perfect roll/bun does not constitute a sandwich within the original public meaning of the term sandwich. I respectfully dissent from Justices Ginsburg and Sottomayor.

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