Caroline Rousset, ca. 1851. Courtesy of the New York Public Library Digital Collections.
The task of understanding the meaning of the words and phrases that constitute legal texts has always been an important one, but the urgency is even greater today. The Constitution includes the following phrases, all controversial but none self-evident: “keep and bear arms”; “the recess”; “cruel and unusual punishment”; and “gifts, emoluments, offices or titles.” The leading modes of constitutional interpretation — originalism, textualism, and common-law constitutionalism — rely on distinct theories of meaning, but they do not agree on which meanings are relevant or even on what “meaning” means.
With my colleague Jason Merchant of the University of Chicago’s linguistics department, I have been working for the past three years on a project that brings together the fields of law and linguistics, as well as my other field, intellectual history. Our project, titled “Historical Semantics and Legal Interpretation,” brings together research in historical jurisprudence and in theoretical and computational linguistics in order to understand the meanings of words and phrases in context. Recent advances in theoretical and computational linguistics, as well as vast new corpora of American and English usage, make possible the precise identification of the lexical shifts that have occurred over the past two centuries.
This perennial question of what words and phrases mean is particularly important in the arena of constitutional interpretation. Which written sources, and which words, count for purposes of determining constitutional meaning? This question is being asked across the spectrum of constitutional interpretation, in theories ranging from originalism to common-law or “living” constitutionalism. Originalism is associated with the late justice Antonin Scalia, as well as several current members of the Court, including Chief Justice John Roberts and Associate Justice Neil Gorsuch, and a number of prominent legal scholars. More adaptive views have been embraced by Associate Justices Ruth Bader Ginsburg and Stephen Breyer, as well as constitutional law scholars including my colleague David Strauss. Each of these approaches requires the interpreter to articulate which sources and which words count.
The emergence and tenacity of originalist theories are part of a larger jurisprudential trend toward grounding legal authority in disciplines outside the law. The search for authority is laudable, insofar as it acknowledges that “law” is not only a particular domain with its own norms and language but also a field of contestation that is acted upon by a variety of social forces, including politics and economics. But when originalist judges reach outside the domain of law, they tend to gravitate toward some fields—and some versions of those fields—more than others.
Much of originalism’s appeal lies in its reliance on a specific type of historical authority, and in the fact that it portrays historical meaning as an objective fact capable of being ascertained by a non-specialist reader. According to originalism’s “fixed-meaning canon” as articulated by Justice Scalia and Bryan A. Garner, “Words must be given the meaning they had when the text was adopted.” The words of the Constitution are, for the most part, recognizable to a modern speaker of English. The canon therefore rests on two premises: first, that there was a single meaning of the words at the time the text was adopted (for the Second Amendment, 1791); second, that this meaning is accessible to modern readers.
Originalism’s version of a historical approach stands in stark contrast to the rigorous empirical research that Chief Justice Roberts dismissed as “sociological gobbledygook” in last term’s partisan gerrymandering case, Gill v. Whitford. Any informed modern speaker of English can read an old text and determine what it means, the theory implies. Moreover, the theory relies on a tool that most historians, as well as linguists, treat with caution: the dictionary. In particular, the justices tend to reach for Samuel Johnson’s Dictionary of the English Language, first published in 1755.
The Court’s recent decisions on the Second Amendment illustrate some potential problems with the non-specialist view of history. In District of Columbia v. Heller, decided in 2008, the Court addressed the constitutionality of a DC law regulating gun ownership. In a five-to-four decision, with Justice Scalia writing for the majority, the Court held that the Second Amendment protects an individual right to possess a firearm, unconnected with service in a militia.
Justice Scalia’s reasoning was a triumphant moment for originalism. He began his opinion by describing the Court’s approach to the Second Amendment: “In interpreting this text, we are guided by the principle that [t]he Constitution was written to be understood by the voters; its words and phrases were used intheir normal and ordinary as distinguished from technical meaning.” By “normal and ordinary,” he meant “known to ordinary citizens in the founding generation.”
The Court’s analysis emphasized the complex structure of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Justice Scalia wrote that the “prefatory clause” (“A well regulated Militia, being necessary to the security of a free State”) “does not limit or expand the scope of the operative clause” (“the right of the people to keep and bear arms, shall not be infringed”). The prefatory clause was therefore useful only to “clarify an ambiguous operative provision.” Since the majority held that the operative clause clearly endorsed an individual right to keep and bear arms, they found that the prefatory clause simply announced “the purpose for which the right was codified.”
But our research demonstrates that the language of the Second Amendment points toward a more collective interpretation of the right of gun ownership than Justice Scalia’s opinion acknowledges. The prefatory clause’s reference to a “well regulated Militia” then becomes more meaningful than the Court suggested in Heller.
In our work, we have asked two questions: (1) Does the subject of “bear arms” always have to denote a collectivity? (2) Does the subject always have to be plural?
News from Lexington—Putnam leaving the plough. Courtesy of the New York Public Library Digital Collections.
Using the Google Books corpus, we searched a range of published materials dating from the period between 1760 and 1795 for the phrase “bear arms.” We then classified by hand each of the 181 texts that our search produced according to the following categories: the use or sense in which the phrase “bear arms” was employed (collective, individual, or undeterminable), and the type of subject that accompanied the phrase (plural, singular, or undeterminable). A last category was for heraldic uses.
Our preliminary results are striking: In 64.09 percent of the instances in which “bear arms” was used, the phrase was used in a collective sense with a plural subject (e.g., “Slaves were not permitted to bear arms.”). In 18.23 percent of the instances, the phrase was used in an individual sense with a singular subject (e.g., “I’ll fire his blood by telling what I did/When I was strong, and able to bear arms.”). Collective singular uses accounted for 3.31 percent of the instances (e.g., “when a slave was made free, a spear was put into his hand, and he was thenceforward permitted to bear arms, and subjected to military services.”). The remaining instances were undeterminable but plural (5.52 percent), undeterminable altogether (4.42 percent), or heraldic (4.42 percent).
According to our research, then, in 67.4 percent of the instances in which the phrase “bear arms” was used in books published between 1760 and 1795, the phrase was being employed in a collective sense. (The results for newspapers are even more dramatic.) For most ordinary citizens in the founding generation, then, the phrase “bear arms” referred to an activity undertaken by groups of people, not only by individuals. In other words, consulting actual historical sources suggests that the context of the Second Amendment had more to do with militias and magazines than with solo householders molding bullets over their hearths. This finding challenges Justice Scalia’s assertion that the only plausible interpretation of the Second Amendment, according to his own “normal and ordinary” meaning test, is that it protects an individual right to possess a firearm unconnected with militia service.
Carefully applied, historical‒linguistic analysis can tell us which meanings were possible at a given time, and what their relative distribution and frequency were. It also demonstrates that much of what passes for linguistic analysis on the part of judges and advocates is often incomplete at best, and pseudo-scientific at worst. As Quentin Skinner put it, “[I]f we wish to understand a given idea, even within a given culture and at a given time, we cannot simply concentrate, à la Lovejoy, on studying the forms of words involved.” Instead, “we must study all the various situations, which may change in complex ways, in which the given form of words can logically be used—all the functions the words can serve, all the various things that can be done with them.”
Transcript of Oral Argument at 40, Gill v.Whitford, No. 16-1161 (2018).
District of Columbia v.Heller,554 U.S. 570, 576, 577 (2008).
U.S. Const. amend. II.
554 U.S. at 578.
Id. at 578 n.4, 599.
Quentin Skinner, “Meaning and Understanding in the History of Ideas,” History and Theory8, no. 1 (1969), 36‒37.