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.