“It’s revolutionary,” Chief Judge Stephen Dillard of the Georgia Court of Appeals said of Georgia State Law students’ linguistic and historical research into the original meaning of various provisions of the U.S. Constitution and its Bill of Rights using the Corpus of Founding Era American English (COFEA) database.
“This is an evolution of how we understand the original public meaning of the Constitution; this is a new tool for judges to be able to use as part of our job of discerning that original meaning,” he said.
Dillard, along with Justices Nels Peterson and Keith Blackwell of the Supreme Court of Georgia and Judges Sara Doyle and Carla Wong McMillian from the Georgia Court of Appeals, evaluated the students’ work during a presentation in April.
“I thought the students were all exceptionally well prepared, the writing was very strong, the research was very strong, and it’s grappling with some of the most difficult questions that courts have to deal with today,” Peterson said.
With assistance from linguist Jonathan McNair (B.A. ’12, M.A. ’17), students explored how those who framed and ratified the Constitution may have had different understandings than we do today about certain phrases.
The term “petition” as it appears in the Petition Clause of the First Amendment was analyzed by Pearson Cunningham (J.D. ’18) and William Lasker (B.A. ’15, J.D. ’18). Eleanor Miller (J.D. ’18) and Heather Obelgoner (J.D. ’18) presented on the original public meaning of the term “executive power” in Article II of the Constitution.
The meaning of “cruel and unusual punishments” was discussed by Anna Celia Howard (J.D. ’19) and Aaron Smothers (J.D. ’19), while Isaac Godfrey (J.D. ’18) examined the term “excessive bail” from the Eighth Amendment.
The technology and research is fascinating, but courts may not be quick to adopt it, Doyle and Peterson said.
“I think there is a fledgling debate within some courts now on the utility of this sort of thing,” Peterson said. “We always lag behind the cutting-edge technology and that’s not a bad thing.”
“But somebody starts somewhere and 20 years from now it may be a norm,” Doyle said.
Blackwell said it’s important to take a careful look at how the database was compiled, such as what source materials were included and what was excluded, “but it has a lot of potential for really expanding the scope of research and understanding.”
COFEA could be valuable to practitioners also, Wong said. “Back in the day historians or linguists would have to read hundreds of thousands of pages of documents in order to discern this, and now with the click of a button you can have a list of how these terms were used,” she said. “Lawyers need to learn about this.”
The research was done as part the Seminar on Judicial Power course taught by Clark Cunningham, professor of law and the W. Lee Burge Chair of Law and Ethics, and director of the National Institute for Teaching Ethics and Professionalism. The students were among the first researchers in the world to be given access to the preliminary COFEA database, which is being developed at Brigham Young University and contains more than 138 million words drawn from over 95,000 texts written during the founding of the United States (1760-99), such as personal correspondence, diaries, newspapers, books, sermons, speeches and legal materials.
“The students did superb innovative research working with original historical material and texts,” Cunningham said. “Each research project developed at least one insight into the original meaning of the Constitution that I had not seen before.”
“Given the somewhat esoteric nature of our chosen phrase—executive power as used in Article II, Section I—we looked not only to recognized sources like the Federalist papers, but also to more obscure sources like pre-Founding Era pamphlets and political sermons and even the philosophical works that influenced our founding fathers,” Obelgoner said. “This class was as much about history and linguistics as it was about the law, and it provided us with an incredibly unique opportunity that served to broaden our knowledge and understanding of the framing of our Constitution.”
Miller enjoyed collaborating with Georgia State’s graduate linguistics program.
“In law school we are not often exposed to subject matter outside of the law, and it was a wonderful opportunity to be able to put such a unique spin on an established legal question. Especially considering the judicial trend both in Georgia and in the federal courts towards originalist interpretation, it was exciting to engage in research that is on the ‘cutting edge’ of originalism,” she said. “Using COFEA and corpus linguistics to supplement traditional originalist methodology is a fascinating application of technology that I am sure I will continue to rely upon in my legal career.”
Learn more and watch a video of the students at www.clarkcunningham.org/JP/index.htm