Category Archives: Dictionaries

Corpora and the Second Amendment: Heller

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

Before I get into the corpus data (next post, I promise), I want to set the stage by talking a bit about the Heller decision. Since the purpose of this series of posts is to show the ways in which the corpus data casts doubt on the Supreme Court’s interpretation of keep and bear arms, I’m going to review the parts of the decision that are most relevant to that purpose. I’m also going to point out several ways in which I think the Court’s linguistic analysis is flawed even without considering the corpus data. Although that wasn’t part of my plans when I began these posts, this project has led me to read Heller more closely than I had done before and therefore to see flaws that had previously escaped my notice. And I think that being aware of those flaws will be important when the time comes to decide whether  and to what extent the data undermines Heller‘s analysis.

The Second Amendment’s structure

As is well known (and as has been discussed previously on Language Log here, here, and here), the Second Amendment is unusual in that it is divided into two distinct parts, which the Court in Heller called the “prefatory clause” and the “operative clause”:

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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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Artis v. District of Columbia, part 2: Units of meaning and dictionary definitions

Sometimes, it’s immediately obvious from the opinions that a case raises questions about interpretation that are interesting, important, or both. Smith v. United States, in which the question was whether trading a handgun for drugs amounts to “using” it, is a classic example. At first glance, the Supreme Court’s decision in Artis v. District of Columbia  doesn’t seem to be in that category. It doesn’t offer interesting linguistic issues that call attention to themselves, except for someone who is familiar with the work of the linguist John Sinclair and the lexicographer Patrick Hanks. But with some digging, Artis yields some issues that I think are  interesting and significant, having to do with new approaches to analyzing questions of word meaning and with how not to use dictionaries.

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#GorsuchDictionaries: Into the lexicographic weeds (updated, and updated again)

Note: If you’re coming back to this post after having read it already, be sure to note the additional update I’ve added, which comes right after the discussion that dates the W2 definition back to 1934.

A new hashtag popped up last week, #GorsuchStyle, devoted to spoofing Justice Gorsuch’s writing style, or at least the style that is on display in the opening sentences of his dissenting opinion in  Artis v. District of Columbia (pdf): “Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.”

I mention that, not because this post will be about Gorsuch’s writing style (it won’t), but because I’m not above a little clickbait-y coattail-riding. It’s not gratuitous clickbait, mind you. This post is about Gorsuch’s dissent in Artis. And it remains to be seen whether it’s effective clickbait. Part of me thinks that if your title includes the word lexicographic, maybe you’re doing clickbait wrong. On the other hand, #AppellateTwitter likes dictionaries, so maybe not.

What this post will be about is Gorsuch’s choice of dictionaries to cite in his Artis dissent. As the title suggests, it will be heavy on lexicography, but it will also touch on what that choice says about whether Gorsuch is a snoot, like his predecessor was, and if so whether that ought to play a role in his decision about what dictionaries to cite. I also plan on doing a separate post to talk about the contrasting approaches to word meaning that are on display in Artis, both of them resonating, though in opposite ways, with what I’ve written about that subject (link, link).

Update: The second post can be found here.

As you may have gathered know if you’re familiar with some of the things I’ve written about word meaning, I’m not a big fan of the central role that dictionaries play in the way lawyers, judges, and legal scholars deal with issues of word meaning. For this post, though, I’ll put that dissatisfaction aside, and will treat the use of dictionaries as perfectly appropriate interpretive tools.

THE ISSUE of which dictionary to use is a recurring one in the academic literature about judges’ use of dictionaries. It’s usually discussed under the rubric of “dictionary shopping”—the practice of looking for the definitions that are most supportive of the result you want to reach. That practice is of course the norm for lawyers arguing cases, but it’s problematic for judges or legal scholars, who aren’t supposed to start out with a preferred outcome and then reason backward to the arguments that can support it. However, there is at least one circumstance in which selectiveness about the dictionaries that one cites can be appropriate: when the purpose of citing the dictionary is merely to show that a particular reading of the word in question is possible. And in fact that was Gorsuch’s purpose in relying on the definitions he cited; he was arguing that the statute was ambiguous.

Nevertheless, Gorsuch’s dictionary choices in Artis are subject to some significant criticisms in terms of what might be called lexicographic relevance; the definitions he relies on don’t necessarily shed much light on the meaning of the statutory language that was in dispute. And in that respect, the dissent is not the first time that judges have gone lexicographically astray.

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Some comments on Hessick on corpus linguistics (updated)

UP UNTIL NOW, the use of corpus linguistics in legal interpretation has gotten almost entirely good press—probably because almost all the press it’s gotten has come from its advocates. That situation has now changed, though, with the posting on SSRN of a paper by UNC law professor Carissa Hessick, who was one of the participants at the BYU law-and-corpus-linguistics symposium this past February. (Hessick has blogged about her paper at Prawfsblawg, here and here.)

The paper, “Corpus Linguistics and the Criminal Law” (pdf), argues that corpus linguistics “is not an appropriate tool” for interpreting statutes. Although it deals specifically with using corpus linguistics in interpreting criminal statutes, and Hessick’s concerns may not be as strong as to other areas of the law, much of her criticism would apply across the board. In this post I am going to discuss some of the issues that the paper raises, and if you’ve followed this blog before, you won’t be surprised to find out that I disagree with Hessick’s conclusion.

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Words, Meanings, Corpora: A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics

On Friday I will be presenting a paper at a conference at Brigham Young University Law School on law and corpus linguistics. Here is the description from the conference website:

Building on the 2016 inaugural Law and Corpus Linguistics Conference, the 2017 BYU Law Review Symposium, “Law & Corpus Linguistics” brings together legal scholars from across various substantive areas of scholarship, prominent corpus linguistics scholars, and judges who have employed corpus linguistics analysis in their decisions.

Although there’s a link on the webpage for the papers that will be presented, they are password-protected. However, my paper is posted on SSRN and can be downloaded there. It is titled Words, Meanings, Corpora: A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics, and the abstract is below the fold.

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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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