Phillips on A Corpus Linguistic Analysis of "Possessions" in American English, 1760-1776 @BYU

James Cleith Phillips, Brigham Young University, is publishing A Corpus Linguistic Analysis of "Possessions" in American English, 1760-1776 in the Chapman Law Review. Here is the abstract.

The U.S. Constitution’s Fourth Amendment protects against unreasonable searches and seizures of persons, houses, papers, and effects. Yet state constitutions often use different language, thus providing a different scope of protection. Specifically, starting with Pennsylvania in 1776, sixteen states have constitutional provisions that include possessions as protected from unreasonable searches and seizures. And currently there is litigation in various state courts, including the Pennsylvania State Court, over the meaning of this constitutional protection. Possessions potentially implies more than houses, papers, or effects—arguably covering anything one possesses, including private land, which would significantly expand the coverage of such constitutional protection. But traditional tools of constitutional interpretation, such as dictionaries or etymology, often fall short in uncovering the original public meaning of constitutional text. Hence, increasingly courts (including the U.S. Supreme Court) have looked to corpus linguistics to better answer the linguistic questions that judges face in interpreting the words of the law. Understandably, judges use economic tools to tackle economic questions and historical tools to answer historical questions. Should they not use linguistic tools for linguistic questions? “[W]ords are . . . the material of which laws are made. Everything depends on our understanding of them.” We can and should use the right tools for seeking this understanding. This article will proceed in four parts. Part I introduces the question at issue in the context of the first state constitution to include the term: the Pennsylvania Constitution. It does so, at least in part, because other state constitutions arguably copied the Pennsylvania Constitution, and thus the meaning of the that constitution likely sheds light on the state constitutions that followed it. Part II highlights shortcomings of the traditional tools usually employed in constitutional interpretation. Part III explains how the tools of corpus linguistics can address these shortcomings. And Part IV presents a corpus linguistic analysis of the term possessions. This approach, more rigorous than that usually undertaken, provides data on the linguistic question that undergirds the legal issue—which reading of these state constitutions is more probable than the other. After all, a “problem in [legal interpretation] can seriously bother courts only when there is a contest between probabilities of meaning.” Corpus linguistics can help with that contest. And this article finds that founding-era Americans sometimes used the word possessions to include land one owned, and sometimes not. In the context of the lemma land, a majority of the time the word possessions appeared to include land as property. More significantly, when looking more broadly at any instance of the term possessions, whether or not the lemma land was used nearby, early Americans used the term to include land approximately 86% of the time. This is evidence, then, that the Pennsylvania Constitution, and likely other state constitutions, were originally understood to protect against unreasonable searches of one’s land—thus providing broader protection than the U.S. Constitution’s Fourth Amendment.

Download the article from SSRN at the link.