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06/27/2016

Lawrence Solan on Public Meaning Originalism
Michael Ramsey

Lawrence Solan at Balkinization: The Corpus and the Constitution

Professor Solan begins with news out of Brigham Young University:

Linguists at Brigham Young University are launching a 100 million word corpus of general Founding-era English, which it has named “COFEA.”

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 Danial M. Ortner) introduces the project as a potentially useful tool in the area of “public meaning originalism,” sometimes called “the new originalism.”  (essay here). 

He then notes the difficulty of interpretation using the corpus:

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.

Then, the advantages: 

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.

And, in conclusion:

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.