Balkinization: The Corpus and the Constitution

The Corpus and the Constitution

Lawrence Solan

Linguists at Brigham Young University are launching a 100 million word corpus of general Founding-era English, which it has named “COFEA.” BYU is the home of the leading American corpora of this sort, which are used principally in linguistic research. Existing corpora of general English include the Corpus of Contemporary American English (“COCA,” 1990-present), and the Corpus of Historical English (“COHA,” 1820-1989).

A recent essay in the Yale Law Journal Forum by Associate Chief Justice Thomas Lee of the Supreme Court of Utah and his two law clerks (James C. Phillips and Daniel M. Ortner) introduces the project as a potentially useful tool in the area of “public meaning originalism,” sometimes called “the new originalism.” (essay here). My response published in the same journal, while fully supporting the publication of the corpus, expresses some skepticism on the extent to which it will provide data that will significantly enhance the objectivity of originalist research (response here). Recently, BYU’s J. Reuben Clark Law School held a conference to discuss the role that corpus linguistics may play in legal interpretation. More such events are planned.

The difficulty, which both sides recognize, is the extent and nature of interpretive decisions that must be made after consulting the corpus. Having a corpus of English from the founding-era is akin to having access to all of the file cards amassed by a lexicographer of the time, assuming the lexicographer to have accumulated large numbers of examples of the words that the dictionary will define. Sometimes that information will be sufficiently uniform to tell future generations how a word was understood at the time and what those who ratified the Constitution likely had in mind when they voted. At other times, though, the corpus will reveal a range of meanings for a word, some closely related, some seemingly distant from one another. Whether one chooses the “ordinary,” prototypical meaning of a term, or a more expansive sense of that word’s meaning for purposes of constitutional analysis is not a neutral decision. For example, how much attention should courts pay to the statistical distribution of “keep and bare arms” over military and non-military contexts? Such decisions are not linguistic. They are, rather, legal or political.

Whether one looks at the word abstractly, or attempts to incorporate within its meaning examples of what real-world things or events were thought to instantiate the word at the time creates a second sort of unavoidable decision. Debates over “cruel and unusual punishments” continue more than two centuries into our history in the context of the death penalty.

As an important article by Stephen Mouritsen (here) demonstrates, corpus linguistics can aid in the interpretation of statutes, especially when the issue at hand is the most prominent usage of a word of ordinary English. At least when it comes to the contemporary laws, reviewing a corpus of general English appears to be a much more promising practice for learning about ordinary usage than does the current judicial trend of arguing about which dictionary best captures the word’s ordinary sense. One reason for this is that the interpretive issues in play in most difficult statutory cases are more subtle than those on which the lexicographer is likely to focus in drafting a definition for broad, general usage. No doubt even in contemporary cases the corpus will not always yield an answer any more certain than the result that comes from the battle over the dictionaries. But sometimes it will, and sometimes is a lot better than never when it comes to determining whether a pre-determined legal standard (ordinary meaning of statutory words) has been met.

Whether or not one practices “original public meaning originalism” as a method of constitutional interpretation, constitutional analysts of all intellectual and political stripes pay at least some attention to how constitutional language was understood in the eighteenth century. At the very least, having more information about this understanding should help to focus debate by providing information about the interpretive choices at the time of the founding.

Posted 3:52 PM by Lawrence Solan [link]