Category Archives: Constitution

Corpora and the Second Amendment: Weisberg responds to me; plus update re OED

[An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here.]

Two quick updates.

First, David Weisberg has replied to my response to his post on the Originalism Blog, but he doesn’t address the point that I made, which was that I disagreed with his framing of the issue.

Weisberg also notes that I didn’t respond to the second point in his original post (which dealt with a purely legal issue), and he goes on to say this:

Many people (and I think Goldfarb is one) believe the correct sense of the 2nd Amend is this: “The right of the people to keep and bear Arms, for use in a State’s well regulated Militia, shall not be infringed.” But, if that is what the framers meant, why isn’t that what they wrote? I think that is a very fair question to ask, and it merits an answer. After all, 5 words would have been saved. Will corpus linguistics provide an answer?

I’m not going to offer any views in this series of posts about how I think the Second Amendment as a whole should be interpreted; I’m focusing only on Heller‘s interpretation of the phrase keep and bear arms. So I’m not going to say whether Weisberg is correct in his speculation about what I think on that score. Weisberg then asks why, if the framers had intended to convey the meaning he posits, they didn’t write the amendment in those terms. Although Weisberg thinks that is “a very fair question to ask,” I don’t think it’s a question that’s relevant to the issue as the Court framed it in Heller, which had to do with how the Second Amendment’s text was likely to have been understood by members of the public, not with what the framers intended. Nevertheless, I’ll say that the question to which Weisberg wants an answer is not one that can be answered by corpus linguistics.

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Corpora and the Second Amendment: Responding to Weisberg on the meaning of “bear arms”

[An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here.]

The Originalism Blog has a guest post, by David Weisberg, taking issue with the conclusion in Dennis Baron’s Washington Post op-ed that newly available evidence of historical usage shows that in District of Columbia v. Heller, Justice Scalia misinterpreted the phrase keep and bear arms. That’s an issue that I wrote about yesterday (“The coming corpus-based reexamination of the Second Amendment“) and that I’m going to be dealing with in a series of posts over the next several weeks.

One of Weisberg’s arguments concerns a linguistic issue that I’m planning to address, and I think that Weisberg is mistaken. At the risk of getting out ahead of myself, I want to respond to Weisberg briefly now, with a more detailed explanation to come.

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The coming corpus-based reexamination of the Second Amendment

[An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here.]

It was only three weeks ago that BYU Law School made available two corpora that are intended to provide corpus-linguistic resources for researching the original meaning of the U.S. Constitution. And already the corpora are yielding results that could be very important.

The two corpora are COFEA (the Corpus of Founding Era American English) and COEME (the Corpus of Early Modern English). As I’ve previously explained, COFEA consists of almost 139 million words, drawn from more than 95,000 texts from the period 1760–1799, and COEME consists of 1.28 billion words, from 40,000 texts dating to the period 1475–1800. (The two corpora can be accessed here.)

Within a day after COFEA and COEME became available, Dennis Baron looked at data from the two corpora, to see what they revealed about the meaning of the key phrase in the Second Amendment: keep and bear arms. (Baron was one of the signatories to the linguists’ amicus brief in District of Columbia v. Heller.) He announced his findings here on Language Log, in a comment on my post about the corpora’s unveiling:

Sorry, J. Scalia, you got it wrong in Heller. I just ran “bear arms” through BYU’s EMne [=Early Modern English] and Founding Era American English corpora, and of about 1500 matches (not counting the duplicates), all but a handful are clearly military.

Two weeks later, Baron published an opinion piece in the Washington Post, titled “Antonin Scalia was wrong about the meaning of ‘bear arms’,” in which he repeated the point he had made in his comment, and elaborated on it a little. Out of “about 1,500 separate occurrences of ‘bear arms’ in the 17th and 18th centuries,” he said, “only a handful don’t refer to war, soldiering or organized, armed action.” Based on that fact, Baron said that the two corpora “confirm that the natural meaning of ‘bear arms’ in the framers’ day was military.”

My interest having been piqued, I decided to check out the corpus data myself.

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Dennis Baron (in WaPo) on corpus linguistics and “bearing arms”

The Washington Post published an opinion piece earlier today by Dennis Baron, with the self-explanatory title “Antonin Scalia was wrong about the meaning of ‘bear arms.’” The crux of the article:

By Scalia’s logic, the natural meaning of “bear arms” is simply to carry a weapon and has nothing to do with armies. He explained in his opinion: “Although [bear arms] implies that the carrying of the weapon is for the purpose of ‘offensive or defensive action,’ it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that ‘bear arms’ had in the 18th century. In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia.”

But Scalia was wrong. Two new databases of English writing from the founding era confirm that “bear arms” is a military term. Non-military uses of “bear arms” are not just rare — they’re almost nonexistent.

A search of Brigham Young University’s new online Corpus of Founding Era American English, with more than 95,000 texts and 138 million words, yields 281 instances of the phrase “bear arms.” BYU’s Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful don’t refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of “bear arms” in the framers’ day was military.

The two corpora that Baron used were made available for public use (in beta versions) about two weeks ago; more information about them is available in my post about their public unveiling, “The BYU Law corpora.” Baron (who had joined in the linguistics professors’ amicus brief in Heller) was quick to take advantage of these corpora, and on May 7 he posted this comment on that post (on Language Log):

Sorry, J. Scalia, you got it wrong in Heller. I just ran “bear arms” through BYU’s EMne [=Early Modern English] and Founding Era American English corpora, and of about 1500 matches (not counting the duplicates), all but a handful are clearly military.

Since I thought that this news deserved more attention than it would was likely to get in the comment thread, I did a separate post about it: “‘bear arms’ in the BYU Law corpora.” All of which is to say, you read it here first.

 

[Cross-posted on Language Log.]

 

 

 

 

“bear arms” in the BYU Law corpora

[Cross-posted from Language Log]

In the comments [at Language Log] on my recent post “The BYU Law corpora,” Dennis Baron writes:

Sorry, J. Scalia, you got it wrong in Heller. I just ran “bear arms” through BYU’s EMne [=Early Modern English] and Founding Era American English corpora, and of about 1500 matches (not counting the duplicates), all but a handful are clearly military.

Baron was one of the signatories to the linguists’ amicus brief in Heller.

Update:

In the comments [on this post at Language Log], Ben Zimmer links to Baron’s article, “Guns and Grammar: the Linguistics of the Second Amendment,” which provides some details about the argument in that brief.

More on The Language of the Law

Over at Volokh Conspiracy, Will Baude has commented on my post about the language of the law. Will and his co-author Steve Sachs recently had a paper titled “The Law of Interpretation” published as a lead article in the Harvard Law Review. They have a view of the rules of legal interpretation that differs from McGinnis and Rappaport’s and is fairly similar to mine:

In that piece, we argue that some interpretive rules are linguistic ones, elements of our written language, but others, maybe many, are legal ones. Rather than assimilating them to rules of language, we analogize them to other legal defaults, many of which are unwritten, such as the rules for mens rea or accomplice liability in criminal statutes. Seeing such rules as law, not language, avoids critiques like Goldfarb’s that legal rules don’t operate in the way that he says that languages generally operate.

However, Baude sees his (and Sachs’s) conception of legal rules as differing somewhat from my description of legal interpretation as process of explicit reasoning:

I take [Goldfarb’s] point about how introspection might differ for language and for law, but we are not committed to the view that all legal interpretive rules entail a “deliberative process by which the interpreter consciously thinks about how the utter­ance or text should be understood.” Trained lawyers may well use the mens rea canon without really thinking about it. And we affirmatively disagree with the suggestion legal interpretive rules must be “promulgated explicitly by actors vested with institutional authority.” We think such rules can, and often do, exist as part of the general common law backdrops of our legal system — authoritative rules of custom that have never been explicitly promulgated by any lawmaker in particular.

I’ll deal with these points in reverse order.

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“The language of the law” is not actually a language

THE NATURE OF LEGAL LANGUAGE has been a recurring subject of discussion, within applied linguistics and (U.S.) legal academia. The latest contribution to that discussion is a recently-posted draft paper by John McGinnis and Michael Rappaport, titled The Constitution and the Language of the Law. (h/t Legal Theory Blog)

McGinnis and Rappaport are the primary advocates of an approach to constitutional interpretation known as original-methods originalism, under which courts today are to apply the interpretive methods that prevailed at the time of the framing (pdf). Their new paper argues that original-methods originalism is supported by the fact that (as they see it), the Constitution is written in “the language of the law.”

Although Larry Solum, of Legal Theory Blog, calls the paper “important and brilliant,” I’m afraid that I find its primary argument to be pretty seriously flawed. [UPDATE: McGinnis and Rappaport have responded to this post, and I have replied to their response.]

I’m going to talk here about two related aspects of the paper that I think are problematic. One is its treatment of “the language of the law” (a phrase that I will henceforth capitalize whenever I use it in the way that McGinnis and Rappaport do). McGinnis and Rappaport come close to treating The Language of the Law as a full-blown language on the order of French and Japanese, which I don’t think is justified by the facts. The other major problem that I see lies in the analogy that the paper draws between the rules of legal interpretation and what it calls the “interpretive rules” of ordinary language (which are better described as the cognitive processes involved in the comprehension of utterances and texts). This analogy, which plays a key role in McGinnis and Rappaport’s argument, is invalid because each of the things that they are analogizing is fundamentally dissimilar from the other.

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The Recess Appointments Clause: LAWnLinguistics goes to court

My post on the Recess Appointments Clause was cited in a supplemental letter brief that was filed by the Justice Department in a Recess-Appointments case pending in the U.S. Court of Appeals (page 11, footnote 10).

The letter brief also makes several arguments paralleling what my post said; whether those arguments were taken from the post rather than developed independently, I can’t say. (Though I certainly know what I choose to believe.)

H/t Legal Times Blog via HowAppealing.

The Recess Appointments Clause (Part 1)

The D.C. Circuit’s recent decision regarding the Recess Appointments Clause (Noel Canning v. National Labor Relations Board) bills itself as an exercise in Heller-style textualism: “When interpreting a constitutional provision, we must look at the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008).” As a result, much of the decision is devoted to linguistic issues.

I’m going to take a look at how the court handled some of those issues—at the conclusion it reached and the reasoning it used to get there.

The verdict: the Recess Appointments Clause is a lot less clear than the D.C. Circuit makes it out to be, and the court’s reasoning isn’t very good.

The issue

Ordinarily, the president’s power to appoint high-level officials is subject to the requirement that his choices be confirmed by the Senate. But because the Senate isn’t always open for business, the Constitution provides that the president “shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” One of the questions raised by this provision is what exactly is meant by the phrase the Recess of the Senate. That’s the issue I will discuss in this post.

To put the question into context, here’s some quick background. Every two years, when the most recently-elected members of the House of Representatives start their terms, a new term of Congress begins. Each new term is referred to as a separate Congress; the current Congress is the 113th. Since the Constitution requires Congress to meet at least once a year, each two-year Congress is divided into at least two officially-designated sessions. Currently, the 113th Congress is in its first session.

In between its formally-designated sessions, Congress is in recess. Everyone agrees that these breaks count as “recesses” for purposes of the Recess Appointments Clause. Congress also takes breaks periodically during each officially-designated session. During those breaks, Congress is simultaneously in session and not in session. It is in session because the officially-designated session is still in progress, but it is out of session because it has temporarily stopped conducting business.

The question is whether these breaks within an officially-designated session constitute “recesses” such that the president can exercise his recess-appointment power. According to the D.C. Circuit, the answer is no.

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