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.
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