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A Corpus-based Response to Justice Sotomayor’s Comments in Lucia v. SEC
James Heilpern

[Editor's note:  For this guest post we welcome James Heilpern, Law & Corpus Linguistics Fellow at the J. Reuben Clark Law School, Brigham Young University.]

Last week, the Supreme Court heard oral arguments for the case Lucia v. SEC. The question presented boiled down to whether an administrative law judge for the Securities and Exchange Commission is an “Officer of the United States” within the meaning of the Appointments Clause of the U.S. Constitution. Two amici briefs―one submitted by Professor Jennifer Mascott and the other by myself on behalf of fifteen linguistics scholars―used big data to analyze the original public meaning of the Clause and the word “officer” in particular. This technique is known as “corpus linguistics.” At least one justice, however, seemed unpersuaded.

Early in the argument, Justice Sotomayor stated, “[O]ur founding fathers designated some people employees and others not, serving somewhat similar functions or not, so that we can’t really go by the founding fathers’ practices because they were rather mixed. You know, a U.S. marshal was - - deputy wasn’t an officer but a -- and customs inspectors weren’t officers, but shipmasters were. All of this seems a little difficult to quantify.” [p. 23]. With all due respect to the good Justice, almost every assertion she made in that statement was factually incorrect.

Perhaps in the past, the Founding generation’s understanding of a particular Constitutional provision as reflected in their day-to-day practices would be “difficult to quantify,” but corpus linguistics makes this question much easier. Corpus linguistics investigates real-language use and function by analyzing huge electronic databases of naturally-occurring texts. These databases have an esoteric name―corpora (the plural of corpus)―but are simply digitally-searchable collections of real-world sources drawn from a particular speech community during a particular time period. These tools have been used effectively by linguists for decades to generate quantitative and qualitative data about language use in bygone eras. The legal world is only now starting to catch up. While corpus linguistics has begun to be used by judges around the country to answer questions of statutory interpretation, as Neal Goldfarb observed over at LAWnLinguistics, Lucia is “the only case in any court where corpus analysis has been used in a brief in connection with an issue of constitutional interpretation.” So can corpus linguistics help resolve Justice Sotomayor’s concerns?

For starters, the word “employee” is a French loan-word that appears to have been rarely used in the Americas at the time of the Founding. A search of BYU’s Corpus of Founding Era American English―a massive digital database of over 95,000 American texts written between 1760 and 1799―reveals only three occurrences of the word, one of which was a letter written in French. Likewise, Google Books’ Ngram Viewer―an “online search engine that charts the frequencies of . . . search strings . . . found in sources printed between 1500 and 2008”―shows that the word did not seem to enter into the American vernacular until sometime after the Civil War!

Furthermore, the word “employee” does not appear in any of the Acts passed by Congress during the first decade of the Republic―a time when the Congress was actively creating federal positions and setting up the various Departments of the executive.

The practice of distinguishing “officers” from “mere employees”―as the Court has done since at least Freytag―is therefore a modern invention and does not reflect the thinking of the Founding generation. As I argued in my amicus brief, Congress referred to just about every government worker exercising non-negligible federal power as an “officer,” including the “melter and refiner [of the U.S. Mint]”; the “Purveyor of Public Supplies”; and the “Assistant Door Keeper of the House of Representatives.” Justice Sotomayor’s specific assertion that “customs inspectors weren’t officers” couldn’t be more wrong. Each Port in the United States had three “customs officers” appointed by the President and confirmed by the Senate―a “Collector,” “Naval Officer,” and “Surveyor,” whose duties included receiving ship manifests and inspecting imports. In addition, Congress frequently spoke of lower-level Treasury officials as “officers” including “officers of inspection,” “revenue officers,” “custom-house officers,” and “officers” appointed to survey each “distillery” and “still” of “spirits” in the Union!

Justice Sotomayor is correct that deputy marshals were not considered “officers” during the Founding Era, but this does not reflect an inconsistent use of the word. As Professor Mascott explained in a recent Stanford Law Review article, “[b]ackground understanding related to . . . a special eighteenth century legal relationship between certain principals and their deputies help to explain the non-Article II treatment” of these officials. A deputy marshal was not considered an officer because as a “deputy” he was “acting as an agent[] in place of an officer”―the U.S. Marshal―who “was subject to personal legal liability for the deputy’s actions.” In other words, just because the Founding Fathers’ practices do not reflect our modern categorizations, does not mean that that they were “mixed” or unreliable. It simply means we need to do the hard work of understanding the Founders’ world view.