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03/03/2018

James Cleith Phillips et al.: Investigating the Original Meaning of “Officers of the United States” with the Corpus of Founding-Era American English
Michael Ramsey

James Cleith Phillips (The Becket Fund for Religious Liberty; Ph.D candidate, University of California, Berkeley - Department of Jurisprudence & Social Policy), Jacob Crump (BYU, JD candidate '18) and Benjamin Lee (linguistic analyst, Department of Linguistics & English Language, BYU) have posted Investigating the Original Meaning of “Officers of the United States” with the Corpus of Founding-Era American English on SSRN.  Here is the abstract:

With the Supreme Court set to decide Lucia v. SEC this term, it has a chance to revisit the meaning of “officers of the United States.” Forty years of court precedent argue the term means one exercising significant government authority, though that precedent did not seek to determine the terms original meaning. Recent scholarship by Jenn Mascott contends that the term’s original meaning is much broader, encompassing anyone employed by the government who has a continuing duty. 

To find such, Professor Mascott performed, in part, “corpus linguistic-like” analysis on the papers of six founders, covering 1783-1789, a total of about 7.7 million words from 16,000 texts. By turning to the new beta version of the Corpus of Founding Era American English, we take this analysis one step further on several different dimensions. First, we survey a larger number of dictionaries to try and get a preliminary idea of the attested senses of “officer” at the founding. Next, we expand the time period of our corpus linguistic inquiry from 1760-1799. Third, across this time period we look not only at these six founders’ papers, but also documents from the Evans Early American Imprint Series, which contains texts from more ordinary Americans, a wider variety of types of texts, and on a wider variety of subjects than the founders’ writings. Additionally, we also look at legal documents from Hein Online’s collection. In all, these three different sources consist of about 150 million words from 120,000 texts. Finally, we expand our search beyond just “officer(s)” or “officer(s) of the United States” to include officer within 5 words of the words public or civil; other officer(s) of (the) (federal) government; officer(s) of (the) (federal) government; and variations on publicly employed. We sample approximately 150 instances from each of these four searches, balancing across all three sources of documents (Founders, Evans, and Hein).

We find the original meaning of “officers of the United States” is messy, but arguably closer to Professor Mascott’s views than the Supreme Court’s. In other words, a definition of "officer of the United States" that is a person exercising significant government authority appears too narrow. But a definition that was anyone working for the government would be too broad. We note the limitations to our methodology and thus our findings.

Here is a link to Jennifer Mascott's paper:  Who Are "Officers of the United States"? (Stanford Law Review, forthcoming).