The Constitution’s assignment of the judicial power to Article III judges is a real constraint on government action.
Recently, I attended an interesting conference on Corpus Linguistics and the Law. Corpus Linguistics “is the study of language based on large collections of ‘real life’ language use stored in corpora (or corpuses) – computerized databases created for linguistic research.” Much of the conference focused on how this method could be used to engage in originalist research.
At present, originalism often uses dictionaries to determine the meaning of words at the time of the Constitution’s enactment. But there are significant limits to dictionaries. The promise of corpus linguistics is to use very powerful software to examine actual usage of words from texts at the time of the Constitution. At present, there isn’t a database of texts from the time of the Constitution’s enactment for use with the software, but BYU is compiling a database with documents from 1760 to 1799, which should be great. This development has the potential to significantly enhance originalist work.
As part of the readings for the conference, there was a great article by Stephen C. Mouritsen that showed the limits of dictionaries and in particular how badly the Supreme Court has sometimes used dictionaries. Basically, dictionaries provide examples of how words were used at a particular time, but they usually do not tell us what is the most common meaning or the ordinary meaning.
In the article, Mouritsen shows how Justice Breyer and the Supreme Court in the 1998 case of Muscarello v. United States embarrassed itself in its use of dictionaries. The question was how to understand the term “carry” in a statute concerning carrying a gun. There were two meanings of carry in dispute: one where the person carried the gun on his person and another where the person conveyed the gun – that is, carried it more generally, including in a car. Justice Breyer argued in favor of this second meaning of carry.
Justice Breyer consulted three dictionaries as an aid toward the meaning, but completely bungled the analysis for two of them. Breyer claimed that his preferred meaning was the primary one, and used as evidence that two of the dictionaries listed his preferred meaning as the first meaning of the term. The problem is that these two dictionaries made clear that the first meaning did not indicate the primary or more common meaning.
Justice Breyer used Webster’s Third New International Dictionary, but the dictionary states that it places its meaning in historical order, with the oldest meaning listed first. Obviously, the first meaning is not the most common or ordinary meaning, but the oldest meaning.
Justice Breyer also used the Oxford English Dictionary, but again he misused it. While he emphasized that his preferred meaning was listed first, he ignored the most pertinent comment regarding the two meanings. The dictionary stated that Breyer’s preferred meaning “is now largely substituted” for with the term take. As Mouritsen says, “That is, the editors of the OED, perhaps the most venerable of all English dictionaries, suggest that [Breyer’s preffered meaning] is on its way out of the lexicon entirely.”
Bryer also made another mistake in using the dictionaries to determine meaning. He argued that the etymology of the word “carry” supported his preferred meaning, pointing to its origins in Latin and French and the meaning it had in those languages. But the present meaning of a word is not necessarily related to its meaning historically. As Mouritsen says,
The notion that we may accept a given meaning as valid simply because its etymology is consistent with our proffered meaning is unsustainable because it would lead to absurd results: December would quite literally mean October, anthology would mean a bouquet of flowers.
It is easy to criticize Breyer here more generally. Breyer is known as a justice who believes the courts should consider the public policy consequences of laws when interpreting them. But if Breyer cannot even get the dictionary correct, how is he going to determine good public policy? Of course, Breyer is an expert on what he believes is good public policy.